text:
    EARNEST “SNOOKS” JOHNSON v. STATE.
    No. A-10692.
    June 25, 1947.
    (182 P. 2d 777.)

      Cecil Robertson, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. - Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Earnest “Snooks” Johnson, a negro, was charged, tried, convicted, and sentenced to 35 years in the penitentiary for the crime of rape upon the person of Emma Helsey, a white girl, in Fort Gibson,, Muskogee county, Oklahoma, on January 20, 1945.

The defendant is a negro, 23 years of age, who was: charged in the Federal court in Muskogee in 1940 with the crime of burglary of the Fort Gibson Post Office, and to which charge he pleaded guilty and for which he was sent to the United States Reformatory at El Reno, Oklahoma. Thereafter, he saw service in the United States Army and from which service he was honorably discharged.

The victim of the alleged rape, Emma Helsey, is 19 years of age, the mother of a child conceived out of wedlock, which child was not born until June 13, 1945, after her marriage to John Stills on February 23, 1945. She testified she “ didn’t do nothing for a living while her mother took in washing.”

John Stills, the man she later married, was her escort on the night of the alleged crime and sat idly by during the rape, making no effort to defend her, or to ascertain the identity of her assailant. Stills himself is an ex-convict.

The complainant, Emma Helsey, testified that she and John Stills, earlier in the evening and unaccompanied by anyone else, went from Fort Gibson to Muskogee where they attended a picture show. Stills testified that they took another boy with them and let him out at Muskogee. Emma testified that they left Muskogee about 11:30 and arrived in Fort Gibson about 12:00 and that they came back alone, by themselves. Stills testified that after the show, they returned to Fort Gibson with another boy and let him out of the car in Fort Gibson at the Randolph Grocery Store. Both Emma and Stills testified that they went to the highway near the Frisco Depot and parked for about an hour; that it was cold and dark and had been raining. While they were thus parked, they said, about one o’oclock, Stills vomited. Just after he had finished throwing up, the man who assaulted her broke out the rear glass of the car with an iron rod. Her assailant ordered her out of the car, and said if she didn’t do what she was directed to do, both she and Stills would be killed. Stills said there was nothing wrong with his car; that it was in good running order and filled with gas. But he made no effort to get it started and get away though the assailant was at the back end of the car. He did not move. She opened the door, got out and obeyed unhesitatingly and Stills sat idly by, not bothering to look either to the right or left. (Perhaps his condition would not permit him to notice what took place.) Emma further testified that the man never came around to where she was but stayed behind the car. She said she opened the door, got out, and went back to where he was. She said she got right up close to him, nearly against him. She then testified his cap was pulled down over his face — she tried to raise his cap brim but the man knocked her hand down and she said, “I think I know you.” The man said, “Never mind who I am.” She said her assailant did not have on glasses. She then testified her assailant took hold of her and took her about five feet from the car, threw her down, took off her panties and had intercourse with her for twenty-five minutes. She said she offered no resistance and made no outcry, though there was a house only 175 feet from the place. Neither did the “spineless” Mr. Stills make any outcry. When she got back in the car, she said, her assailant was still at the scene on his hands and knees. Her future husband, John Stills, verified the time. He testified they were 75 feet away from the car. He said he heard no conversation but could hear them “snorting and blowing”. He said that Emma cried when first ordered out of the car and that she cried after the ordeal. Nowhere in her testimony does she testify to or indicate a state of outraged sensibilities or disturbed state of emotions. The record discloses that she just took it.

As to the identity of the rapist, Emma testified he had on a striped engineer’s cap and an army field jacket and a pair of blue overalls. She said she had known Snooks Johnson all her life and recognized his voice on the night of the rape. Stills attempted to identify him from his voice. She said she told Stills who had raped her and that it was Snooks Johnson. After the rape, both of them testified, they went to her home. Emma said her mother was awakened and unlocked the door and let them in. She was told of the rape by Emma and Emma said she thought she knew who had raped her but she didn’t tell her mother that night who did it. The next day, she told her mother that it was Snooks Johnson. Stills didn’t tell Emma’s mother who it was, Emma testified. Emma said the next day, Sunday, about 10:30 a. m., she was in the kitchen looking out the window and she saw a negro man, whom she testified was Johnson, crossing the road in front of her house about 200 feet from her. She said he had on the engineer’s cap, army field jacket and overalls. She said his pants were muddy on the knees. Neither she nor her mother made a report of the incident to the officers until 5 :30 p. m. Sunday when they came to her house after a report was made by Claude Garrett to the officers.

Stills testified that he reported the rape to Claude Garrett, the mayor of Fort Gibson, Sunday morning some time. He did not remember just exactly when.' He says he didn’t report it to any one else until Charlie Bruner and Constable Jarnigan came up to the house and asked him about it.

Claude Garrett, practicing attorney and mayor of Fort Gibson, testified that some time on or about January 21, 1945, in the morning, he saw Still’s car across the tracks. He noticed the back glass was broken out. He had a chattel mortgage on the car and, of course, was interested in that. So, he stopped and asked Stills, “Who has been chewing on your back end?” And Stills said, “I got that knocked out last night down by the Frisco Depot.” Garrett asked him “What happened?” and Stills reported in more or less a manner to find out what to do, that a girl had been raped the night before.” He said Stills wanted to find out who he should report it to and “see if we can catch the fellow.” He testified that he told Stills he would see Mr. Jarnigan or Charlie Bruner, another officer. He said that Stills didn’t mention to him at that time whom he suspected of the crime. He didn’t tell the mayor at any time whom he suspected and it was only after Snooks Johnson had been arrested that he became aware of the alleged assailant. Garrett testified that Stills did not go into details or volunteer any information as to whom he thought Emma’s assailant was.

Charlie Bruner, deputy sheriff of Muskogee county, Oklahoma, testified that he knew all of the parties and that he first got his information about the rape from Claude Garrett; that he went and talked to John Stills and Emma Helsey, and Emma told him that her assailant was Snooks Johnson. He said that he had seen Snooks Johnson wearing an engineer’s cap, but he didn’t know just exactly how long it had been but he imagined it was “six or seven months ago,” or “something like that;” he “didn’t know exactly.” But, it was a blue and white striped cap, though he had not seen him wearing this cap recently. That he went to his house and searched for the cap, but did not find one. That he went to Snooks Johnson’s brother’s house and searched, but didn’t find one; that he also searched for an army field jacket but didn’t find one; that later on, he met Snooks Johnson’s mother and told her that Snooks had sent him for his engineer’s cap, but she said he had no such cap. He testified that it was about 3:00 or 4:00 o’clock in the afternoon when he arrested him and that when he took him into custody he had on a light pair of pants and that they could have been blue or faded out. He does not know what kind of shirt he had on, but he does know that he didn’t have on a cap nor an army field jacket nor blue overalls. He said that Emma Helsey told him that the defendant had on an engineer’s cap and a field jacket that morning. Right after he talked with her, he apprehended Snooks Johnson and placed him under arrest. He finally placed the time at which he saw Snooks Johnson wearing an engineer’s cap along the latter part of last year, which would be the latter part of 1944. He then testified he did not know that Snooks Johnson was in the Army last year.

Oscar Winston, a negro, called to testify on behalf of the state, said he was 15 years of age and had known Snooks Johnson all of his life; that last year, he didn’t remember when, he saw Snooks Johnson wearing an engineer’s cap when he worked at the feed company. He testified that he himself had a railroad engineer’s cap which he had been wearing; that there were other colored boys around Fort Gibson wearing them. He testified that he saw the defendant on the night of the alleged rape in Clarence Green’s beer joint and that Snooks Johnson stayed there that night and that he never saw him leave. He testified that he had never talked with the county attorney before. The night he stayed at Clarence Green’s place was the Saturday night before the Sunday that Johnson was arrested. Snooks Johnson, Perry Ford, Wilbur Tarver and himself spent the night at Clarence Green’s place, and they were playing cards; that Snooks Johnson was in and out of the game and once in a while would get up and leave, but that he played until he got broke and then he went to bed, about 2:30 or 3:00 o’clock in the morning. That when Johnson left the game, he would go and get some money, and get back into the game. When he got up the next morning, Earnest “Snooks” Johnson was there, and that he was there when he went to sleep. Winston also testified that he too was under parole, on a charge of grand larceny. With this witness, the state rested its case.

The defendant, Earnest “Snooks” Johnson, then took the witness stand and testified in his own defense that from about dark until 6:00 o’clock Sunday morning he was in Clarence Green’s beer joint, upstairs, playing cards with Wilbur Tarver, Red and Perry Ford, and that he did not rape Emma Helsey. He said he did not leave at any time and go out to the Frisco tracks about a mile away, the place of the alleged crime. That on the night of the rape he was dressed in a sport shirt and two-tone cap, partly blue and white; that it was just an ordinary cap with flaps on it and was not an engineer’s cap; that lie did not own either an engineer’s cap or an army field jacket; that he did not have a suit of blue overalls. He asked the officers when they arrested him what it was for, and they said it was for investigation. That they never did tell him what he was charged with. He testified that after he was put in jail in Fort Gibson and later taken to Muskogee, at neither place did any one come to identify him. He said he always wears glasses; that he cannot see at night without glasses. Again he positively testified he never left the place at any time. He testified that he had never been by Emma Helsey’s house, because he “didn’t have any business to' go by there.” He testified further that he didn’t go by her house on Sunday morning because he never left the business part of town, and that he didn’t even go home Sunday. He offered in evidence his honorable discharge from the Army of the United States.

James Martin, a common laborer, testifying on behalf of the defendant, said that he saw the defendant upstairs over Clarence Green’s beer joint a little after dark; that he stayed there until about 12:00 o’clock and that while he was there Snooks Johnson was in and out and that he thought he was still there when he left; that he knew Snooks Johnson was up there the night before he was arrested. He said that Perry Ford and Wilbur Tarver and himself played dominoes and pitch, and that Oscar Winston was there; that when he was playing, Snooks Johnson was mostly tending the fire; that he was in and out but didn’t stay out long; that he didn’t pay any attention about his clothes, but thought he had on a pair of blue pants and a white shirt and a blue hat.

Perry Ford testified on behalf of the defendant that he was a farmer; that he had known Snooks Johnson about 12 years and that on Saturday night before his arrest on Sunday, he saw him upstairs in Clarence Green’s building and that he got there about 9:00 o’clock that night and stayed until about 4:00 o’clock and during the time he was there he gambled a bit at first one thing and then another. He said that all the time he was there, he didn’t see the defendant, Earnest “Snooks” Johnson, leave the building for any appreciable time, and that when he left the building at about 4:00 o’clock, Johnson was in the other room, in bed; that he went in there to go to bed himself but couldn’t find a bed so he then went home. He testified that it was about a mile from Clarence Green’s place to the Frisco Depot; that he didn’t pay any particular attention to Johnson’s coming and going; that they were playing cards and shooting dice on the night of the alleged rape and that Snooks Johnson shot dice.

Leonora Gandy, testifying in behalf of the defendant, said, on the night in question she was staying upstairs at Clarence Green’s place; that was the night of January 20th and she saw Snooks Johnson up there about 10:00 o’clock and she again saw him about 11:30; she saw him the next morning about 9 :30 and at that time he had on a brown pair of pants and a white striped shirt and that the night before he had on the same clothes; that she is a sister-in-law of Snooks Johnson. She' testified that Snooks Johnson did not have any clothes at Clarence Green’s place besides the clothes he was wearing; that she never saw him wearing an engineer’s cap or a cap of any kind.

Lena Johnson, testifying in behalf of the defendant, said she was the mother of Snooks Johnson and that she remembered when Snooks was arrested. She said that shortly after Snooks’ arrest she saw Charlie Bruner and he said that “Snooks wanted me to send him his cap like the ‘brakies’ wear” and she told him that he didn’t have such a cap. She further testified that he didn’t have an army field jacket; that the only clothes he had were the ones that he kept at home; that he didn’t have but two pair of pants and his soldier’s clothes. She further testified that he had a two-toned cap. She saw him the night before he was arrested,, in the early part of the evening, at Clarence-Green’s place as she passed by.

Wilbur Tarver testified that he knew Snooks Johnson and that the night before he was arrested he saw Johnson upstairs over Green’s building at about 11:00 o’clock and that he stayed there that night until about 3:00 or 4:00 o’clock and that Johnson went into the next room and he and Oscar Winston lay down. He didn’t recall how Johnson was dressed that night. He said that they were playing Casino; that Snooks was there after 11:00 o’clock ; that he may have been in and out a half dozen times.

In Workman v. State, 62 Okla. Cr. 81, 70 P. 2d 133, 135, this court said:

“A charge of rape is one that arouses the passion and prejudice of the jurors, and for that reason it is the duty of the court to clearly scrutinize the evidence and where the evidence of the state is unreasonable, inconsistent and contradictory, or indications are that the prosecution is maliciously inspired, the court should not permit a conviction to stand. A charge of rape is an accusation easy to be made, hard to prove, and harder to be defended by the accused, though ever so innocent. This court is not unmindful of the rule frequently announced by it that the weight of the evidence and credibility of the witness is for the jury, and the court will not reverse a conviction on conflicting evidence where there is substantial evidence supporting it. Witt v. State, 29 Okla. Cr. 357, 233 P. 788; Walker v. State, 20 Okla. Cr. 319, 202 P. 799; Sherman v. State, 20 Okla. Cr. 306, 202 P. 521; Ravenscraft v. State, 23 Okla. Cr. 361, 214 P. 946.”

The foregoing statement is sound. The first line thereof is especially applicable in a case where the accused is a negro and the victim is a white woman. In such cases, the mere accusation is almost sufficient to result in a conviction. In all rape cases it is especially the duty of the court to clearly scrutinize the evidence, standing between the accused and the passion and prejudice of the jurors. It is the duty of the court to apply the same rules of justice, the same rules of careful consideration and fair play to all alike, whether the accused be white or black.

In Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083, 1091, this court said :

“While a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory. Without such surrounding facts and circumstances, the bald statement of the prosecutrix against the defendant would be so devoid of testimonial value as to render it unworthy of belief.”

This rule applies with like force to a case of first degree rape. In the last case cited, the court quoted from Morris v. State, 9 Okla. Cr. 241, 131 P. 731 as follows:

“This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable donbt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law.”

With these principles in mind, let us look at the case at bar. The evidence to support the. charge of rape is highly conflicting, contradictory, and unsatisfactory, if not improbable. Emma Helsey and John Stills are in hopeless conflict about the fact of another boy going to and coming back with them from Muskogee. They are not in agreement about Still’s being sick. She mentions it but he does not. They are not in agreemnt about her crying, either before or after the rape. Her mother offered no evidence as to her daughter’s outraged "sensibilities or disturbed state of emotions. He says she cried but she never alluded to it. Though the automobile was in good running order and filled with gas, Stills says he made no effort to escape with Emma before the rape. She says that the rape occurred five feet from the car. He says the rape occurred 75 feet from the car. She testified she said to her assailant, “I think I know you” and her assailant said,, ‘Never mind who I am.” Stills said there was no conversation between Emma and her assailant. Emma testified she offered no resistance to her assailant nor made any outcry and had intercourse with him for 25 minutes. Stills said where the rape occurred the ground was “all plowed up”, indicative of resistance. Stills said he sat there for 25 minutes and never looked back to see what was going on. And, though there was a house 175 feet near by, he made no outcry. Although it was only a mile to town, he never slipped out of the car to go for help. He could easily have obtained assistance and apprehended the assailant in the act if he had been half as interested in her as he was in his own safety. Emma says her assailant was on his hands and knees when she got back into the car. She testified she told Stills who raped her. When she got home, neither she nor Stills told her mother who raped her though they did say that she was raped. The next day, Stills talked with the mayor about the rape but never indicated to the mayor who raped her. Stills never reported it to the officers to whom the mayor directed him. The mayor told the officers and they then came and .inquired of Emma and Stills about the rape. On Sunday, following the rape and shortly before Johnson was arrested, Emma testified she was standing in the kitchen looking out the window and saw her assailant wearing the engineer’s cap, the army field jacket and the blue overalls that he wore the night before, when he raped her. She said he had mud on his knees; he was about 200 feet away. The record shows that the defendant had no such cap, no such field jacket and no blue overalls. It discloses that there were no other negroes in Fort Gibson who had such caps. When he was arrested a short while later, the record shows he was arrested in the business part of town and that he did not have on an engineer’s cap, blue overalls with mud on the knees, nor an army field jacket. In this connection, the record shows that Johnson testified that he had not been out of the business section since the evening before. The officers made a search of Johnson’s residence and his brother’s place for the cap, the jacket and the overalls but could find neither. It shows they attempted to trick Johnson’s mother into producing the cap and that she promptly said he had no such cap. As to the defendant’s being clad in blue overalls, having mud on its knees, it occurs to us that the back of the victim’s dress would have been muddy and discolored if she had intercourse for 25 minutes and was on the bottom and the ground was all plowed up as John Stills would have us believe it was. What became of the dress? Why wasn’t it introduced in evidence to corroborate her story? No medical examination was sought or made to determine the fact of entry. Moreover, even after the defendant’s arrest and imprisonment, at no time thereafter up to the day of the trial was the defendant ever confronted by Emma Helsey or John Stills for the purpose of obtaining positive identification. On the contrary, the prosecutor elected to wait. What better time could have been selected for this purpose than that immediately following the arrest of Johnson, when the picture was fresh in Emma Helsey’s mind? We must take judicial notice of the fact that the longer the delay, the less positive is the identification and the more speculative is the proof; the more likely' the picture will become a dim and unreasonable piece of guesswork. In its final analysis, there is little upon which to base the identification on this cold, dark, rainy night except the voice of Emma Helsey’s assailant. To sustain this record, we believe, would compel us to resort to the razor’s edge in identification. We would be required to slice the doctrine of reasonable doubt to a thinness not warranted under the law. This conclusion is supported by the record made in behalf of the defendant.

It reveals the defendant positively denies his guilt and offers a substantial alibi. In this, he is subtantially corroborated, even by one of the state’s witnesses whom, in an effort to bolster the state’s case, the prosecutor put on the stand without having ever talked to the witness.

Suffice it to say, the record as a basis for conviction is most unreliable and speculative. If Emma Helsey was raped, as she testified she was, it could just as easily have been any one of the other negro boys in Fort Gibson who owned an engineer’s cap, an army field jacket, and blue overalls. It might just as easily have been the unidentified person who came from Muskogee with them to Fort Gibson on the night the rape is supposed to have occurred. The correctness of the identity in this case is highly speculative. This court will not follow the whims of speculative justice nor accede to the possibilities of passion and prejudice when the record of the state is composed of such conflicting, contradictory, and unreliable evidence as herein presented, particularly as to the matter of identification. To paraphrase an old Southern expression, “there may be a negro in the woodpile”, but we cannot say, under the record herein presented, beyond a reasonable doubt, that Earnest “Snooks” Johnson (the negro in this case) is the guilty man.

In McLaurin v. State, 34 Okla. Cr. 324, 246 P. 669, 671, this court said:

“It is true that this court has held many times that there is no rule of law which forbids a jury to convict for the crime of rape on the uncorroborated, testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony. It does not follow, however, that a conviction upon such testimony is to be arbitrarily sustained under all circumstances. In some states, corroborating evidence is required by the statute.
“It is true that convictions for rape must rest largely upon the testimony of the prosecutrix, and direct corroborating testimony is well nigh impossible jo procure. However, where the charge is true, there will almost always be some corroborating evidence, such as injury to the person or clothing of the prosecutrix * * See, also, Workman v. State, supra.

Here, there is no showing of either injury to her person, or damage to her clothing.

In Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d 838, 845, this court said:

“The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty.”

One other assignment of error is the court’s refusal to give a requested instruction setting forth the theory of the defense.

In this connection we have carefully examined the court’s instructions covering the case, and are of the opinion that this contention is meritorious. Nowhere in the court’s instructions does he present to the jury the defendant’s theory of the lack of corroboration of the prose-cutrix’ testimony, the defendant’s specific denial, his alibi, corroboration thereof, and the necessity of establishing in the minds of the jurors the identity of the defendant beyond a reasonable doubt. The jury was entitled to be advised in the court’s instructions as to the theory of the defense. It was error for the court not to do so. It is altogether possible that if the court had instructed the jury on the theory of the defense, it might have returned a different verdict. It is apparent that there was some doubt in their minds as to the sufficiency of the evidence to warrant them in arriving at a penalty. Hence, they passed the matter of sentence and punishment to the court. Had they been convinced of the sufficiency of the evidence to support their verdict, we believe that they would have exercised their right to fix punishment, and we have little doubt as to what that punishment would have been. The testimony of the prosecutrix as to the actual commission of the crime and the identity of her assailant is not corroborated. Her testimony as to the commission of the crime and as to the identity were both contradicted. Moreover, the defendant positively denied the charge and presented a substantial alibi as to his whereabouts at the time of the alleged offense. Under the rule announced in Douglas v. State, 19 Okla. Cr. 257, 199 P. 927, and Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617, 618, this court said:

“Under the laws of this state a conviction for rape may be had upon the uncorroborated evidence of the prose-cutrix, however, where the testimony of the prosecutrix is contradictory, and her reputation for truth and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.”

In Finley v. State, 84 Okla. Cr. 309, 181 P. 2d 849, 861, this court said:

“A party is entitled to have the jury instructed on the law governing the issues according to his theory, providing such theory is tenable as a matter of law, or finds possible support in the evidence * * *.”

The defendant makes other assignments of error of some merit, but which are not necessary for us to consider, in the light of what we have already said.

After carefully considering all of the evidence and circumstances surrounding the case, the insubstantial nature of the identification, and the failure of the court to properly instruct the jury, we are of the opinion that the record is insufficient to support the conviction. It may be possible that the prosecutor now has additional evidence which will support the charge, and for that reason he may desire to try the defendant again. If so, he has the permission of this court so to do.

This cause is therefore reversed and remanded for further proceedings not inconsistent herewith.

BAREFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    RAY LEROY LOVE v. STATE.
    No. A-10681.
    June 25, 1947.
    (182 P. 2d 793.)

      Robert O. Swimmer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Haskell A. Hollo-man, Asst. Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ray Leroy Love, was charged by information filed in the court of common pleas of Oklahoma county with the offense of unlawful possession of intoxicating liquor, was tried, convicted, with the punishment left to the court. The defendant was subsequently sentenced to serve 30 days in the county jail and pay a fine of f 150, and has appealed.

For a reversal of this case, two propositions are presented :

First, the search and seizure was illegal and unlawful because the search warrant did not describe with sufficient certainty the place to be searched.

Second, the court erred in allowing evidence to be admitted on rebuttal impeaching the character of the defendant by a showing of prior convictions of crime where the defendant had not taken the stand in his own defense and had not placed his character in issue.

In connection with the first proposition, it is contended that the search warrant described the place to be searched as: “A one story frame building known as the ‘Casa Loma Domino and Pool Building’ located at 1334 Southeast 29th Street, adjacent to Oklahoma City, Oklahoma Township, Oklahoma,” and, that this building described in the warrant covered the public property of one individual in the front of said building while the defendant and his wife were merely tenants who occupied the rear three rooms of said building.

We have carefully examined the record in connection with this issue. The testimony of the officers who made the raid was clear and convincing, while that of the defendant given on the motion to suppress evidence and his alleged wife was full of inconsistencies and misstatements. Under the testimony of the officers, the defendant was operating the pool and domino parlor and evidently selling whisky, as they found 21 pints of whisky in a refrigerator at his place of business. There were three rooms to the rear of the pool hall, but under the evidence of the officer, they were not being used as living quarters by the defendant or anyone else. Under the evidence presented by the state in connection with the hearing on the motion to suppress evidence, and especially when considered with the inconsistent testimony presented on behalf of defendant, the court was not only justified, but it was his duty, to overrule the motion to suppress evidence.

In Hughes v. State, 83 Okla. Cr. 16, 172 P. 2d 435, 436, it is stated:

“If the descriptions in search warrant are sufficient to enable officer executing the search warrant to locate the premises to be searched without aid of any other information save that contained in warrant, the warrant is sufficient.”
“In bearing on motion to suppress evidence, court’s finding on disputed question of fact as to whether search warrant sufficiently described defendant’s premises will be sustained where there is competent evidence in record to support finding.”

See, also, McNew v. State, 44 Okla. Cr. 129, 279 P. 978.

The second proposition presented in defendant’s brief is directed at the admission of certain evidence by the state in rebuttal.

The defendant did not testify at the trial of case before the jury. However, his wife testified that the whis-ky that was found in the icebox was purchased by her husband for treatment of her chronic anemia and that it was not for sale but was for her own personal use.

In direct examination of the witness she testified:

“Q. Do you know of your husband selling any whisky? A. He never did sell any, sir. Q. After the officers found this whisky here, did they ever come back out to the place there? A. Yes; a number of times. Q. Did they ever find any liquor when they came back? A. No, sir. Q. Does your husband have a wholesale or retail liquor stamp that the federal government provides that all men in the whisky business must have? A. Well, no; he didn’t have any of those things. Q. He doesn’t have a wholesale or retail liquor stamp furnished by the federal government? A. No.”

On cross-examination she testified:

“Q. Do you know of your husband having been arrested before this time for possession of whisky? A. No, sir. Mr. Swimmer: Objected to as incompetent, irrelevant and immaterial. The Court: Overruled. Q. I beg your pardon? A. No; I didn’t know he was arrested. Q. You don’t know of him ever having been arrested prior to tbis time? A. No, sir. Q. Do you know of Mm having been arrested for anything besides selling intoxicating liquor? A. No. Mr. Swimmer: Objected to as incompetent, irrelevant and immaterial. I didn’t understand the question. Q. Do you know what a retail liquor dealer’s stamp looks like, Mrs. Love? A. I don’t think I would.”

After the defense had rested their case, Deputy Sheriff Kolb was recalled as a witness by the state and the record discloses the following occurrences:

“Q. I hand you an instrument that has been marked Plaintiff’s Exhibit 2, and ask you if you can state what that is. Mr. Swimmer: Your Honor, if this instrument offered is what counsel believes, it is affecting the character and general reputation of this defendant, and we are objecting to it on the grounds that the man’s character has not been put in issue. Mr. Highley: Your Honor, his character has been put in issue by the witness who testified here that this man had never been arrested before that she knew of, and that she had been married to him since 1936. Mr. Swimmer: That was brought out on cross-examination and not direct examination, and it is palpably an attempt of the county attorney to bring the character and reputation of the defendant in issue and then take advantage of that fact. The Court: I believe I will let him answer. Overrule the objection, and allow exceptions. A. This instrument is a Federal Bureau of Investigation, United States Department of Justice, Washington, D. C., record. Q. Is that a record of the defendant in this case, Bay Leroy Love? A. Yes, sir. Q. Is it a criminal record compiled by that department? A. Yes, sir; by the Department of Justice. Mr. Swimmer: We object to these questions and move for a mistrial on the ground that this testimony is being brought before the jury for the purpose of influencing and biasing the jury, and for the further ground that the character of the defendant has not been put in issue by the defense. The Court: Well, some of it could be gone into for the purpose of impeaching the witness, for impeachment only. Mr. Swimmer: Will you rule on that, your Honor? The Court: Overruled. Mr. Swimmer: Exception. ,Q. (By Mr. Highley) From an examination of page number 2 of the instrument that is identified as Plaintiffs Exhibit 2 — (interrupted). Mr. Swimmer: We object to any further questioning concerning the identity of this instrument. It hasn’t been offered in evidence, to my knowledge, and if the man wants to offer it into evi-deuce he may do so, over my objection. Mr. Highley: I don’t think it is necessary to offer it. It is a record of the Federal Bureau of Identification and has been sufficiently identified. Mr. Swimmer: We object to that evidence being introduced in the record. If he wants to introduce that instrument into evidence, let him go ahead and do it, over my objection, then he may interrogate him. Q. I will ask you, Mr. Kolb, if you know, of your own certain knowledge, whether or not this defendant, Ray LeRoy Love, has been charged and found guilty by the sheriff’s office and charged by the county attorney’s office of Oklahoma County, with possession of whisky or liquor, previous to this time. Mr. Swimmer: To which interrogatory counsel for the defense objects on the grounds that the character of the defendant has not been put in issue; and move the court to instruct the jury to disregard the interrogatory. The Court: If he knows of his own personal knowledge, I will let him testify. Q. Do you know and can you testify, of your own personal knowledge, that this defendant has been previously charged and convicted of the crime of possession of intoxicating liquor in Oklahoma county? Mr. Swimmer: To which interrogatory counsel for the defense objects on the grounds that it is not the best evidence and asked for the purpose of influencing the jury, and moves the court to instruct the jury to disregard the interrogatory. The Court: Overruled and allow an exception. Q. You may answer Mr. Kolb. A. What was your question, please, sir? Mr. Highley: Will you read the question, please? (Last question read by reporter.) A. Well, all I know is just from the record, the Common Pleas Court record and the F. B. I. record. Mr. Swimmer: Move the court to instruct the jury to disregard the interrogatory put to the witness. The Court: Overruled, and allow an exception.”

Officer Caldwell was then called as a witness and was asked concerning a charge of illegal possession of intoxicating liquor that had been filed about two. years prior to the trial against the defendant, and over the objection of counsel for defendant, he was allowed to testify concerning that case.

Dale Smith, deputy court clerk, then was used as a witness by the state to identify certain exhibits in Case No. 6059, in the court of common pleas, purportedly to show that the defendant, Love, had previously pleaded guilty to the charge of unlawful possession of intoxicating liquor in said case. This evidence was admitted over the objections of counsel for defendant. It is the contention of counsel for defendant that the admission of this rebuttal evidence was prejudicial error requiring a reversal of this case.

In the early case of Kirk et al. v. State, 11 Okla. Cr. 203, 145 P. 307, this court stated:

“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.”

Says Bishop:

“Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.” 1 Bishop’s New. Cr. Proc. par. 1112.

In the case of Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809, 810, this court stated in the syllabus:

“Where the defendants are cross-examined as to other crimes alleged to have been committed by them, which have no connection with the offense charged, upon which alleged offenses convictions have not been obtained, and the defendants deny the commission of the alleged offenses, it is error to permit the state to introduce witnesses in rebuttal with the view of impeaching the testimony of the defendants by showing the commission of the alleged crimes, as a witness cannot be impeached upon collateral matters.”

In the body of the opinion this court stated:

“It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant’s condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover, the use of alleged particular acts, ranging over the entire period of the defendant’s life makes it impossible for him to prepare to refute the charges, any or all of which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R. C. L. 953; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.”
“It is elementary that a witness cannot be impeached upon collateral matters; and it is error to permit the defendant, as a witness in his own behalf, to be cross-examined as to any distinct collateral fact, not brought out in the examination in chief, to the view of impeaching his testimony by introducing other witnesses to contradict him. Whether the matter inquired of on cross-examination of the defendant and proved by the. state in attempting to impeach him was collateral to the issue must be determined by this inquiry: Would the prosecuting attorney have been permitted to introduce it in evidence as a part of the state’s case? If he would not, it was collateral. If it was collateral, it was not competent to contradict it. See Payne v. State, 10 Okla. Cr. 314, 136 P. 201.”

As was stated in Flynn v. State, 68 Okla. Cr. 72, 96 P. 2d 96:

“We are of the opinion that this testimony was inadmissible because, if true, it would refer to a separate and distinct crime; and its admission cannot be otherwise than prejudicial to the defendant.”

In Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 494, 135 A. L. R. 1149, it is stated:

“The general rule is that when a defendant is put upon trial for one offense,. he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.”

There are exceptions to this general rule which are set forth in many of the reported cases. Herron v. State, 75 Okla. Cr. 251, 130 P. 2d 325; Byers v. State, 78 Okla. Cr. 267, 147 P. 2d 185. But the evidence of the alleged commission of another offense in the instant case was not within any of the exceptions to the general rule herein-above set forth.

It is our conclusion that the court erred in admitting the rebuttal evidence and that the admission of this evidence cannot be treated as harmless error. For the. reasons above stated, tbe judgment and sentence of the court of common pleas of Oklahoma county is reversed and remanded for new trial.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    Ex parte JOHN LANGLEY.
    No. A-10891.
    July 2, 1947.
    (182 P. 2d 785.)
    A. L. Commons and Jack Brown, both of Miami, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Charles C. Chestnut, of Miami, for respondent.
   BRETT, J.

This is an original action in habeas corpus, instituted by the petitioner, John Langley, for the purpose of being admitted to bail, upon a charge of murder, now pending against him in the district court of Ottawa county, Oklahoma.

The verified petition alleges that the petitioner is being unlawfully restrained of his liberty in the county jail of Ottawa county, Oklahoma, by James A. Alleman, sheriff. He alleges that he now stands charged by information with the crime of the murder of Fred Eby, but the proof of guilt of said offense is not evident, nor the presumption thereof great.

Attached to the petition is a certified copy of the transcript of the proceedings and testimony in the preliminary examination in the justice of peace court of Ed Zilar of the city of Miami, Ottawa county, Oklahoma, on April 26, 1947. It is unnecessary to comment upon the weight of evidence at the hearing herein. It is sufficient to say that on the preliminary examination, the petitioner was bound over to the district court on the charge of murder. Thereafter, application was made to the district court of Ottawa county, and bail again denied.

In our opinion, the petitioner has failed to sustain the burden of establishing that the proof of his guilt is not evident, or the presumption of his guilt is not great, on the charge of murder, and bail should therefore be denied.

At the time of said hearing an order was made and entered expressing the opinion of the court that the proof of guilt was evident and the presumption thereof great; that the petitioner had committed the crime of murder, and bail was denied, and that the petitioner should be held in the custody of the sheriff of Ottawa county, pending trial in the district court.

In conformity to said order, it is the judgment of this court that the petitioner be denied bail.

BAREFOOT, P. J., and JONES, J., concur.


text:
    A. W. LAWSON v. STATE.
    No. A-10737.
    July 2, 1947.
    (182 P. 2d 786.)
    Sam Y. Colby, of Madill, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, A. W. Lawson, was charged by information filed in the county court of Marshall county with the unlawful possession of whisky, was tried, convicted and sentenced to serve 30 days in the county jail, and pay a fine of $50 and costs and has appealed.

It is first argued that the court erred in overruling the motion to suppress evidence filed by counsel for defendant. At the hearing on the motion to suppress evidence, the only witness offered by either the state or defendant was the arresting officer, Luther Henson. This witness testified that he was the county jailer. That on September 6, 1945, he had occasion to be out near the home of the defendant. That he did not have a search warrant for the defendant or for his premises and did not have a warrant for his arrest. That he saw a truck drive up to defendant’s place and deliver a pasteboard box which the defendant took in his arms and started walking with it. The testimony of the officer on this point is as follows:

“Q. Mr. Henson, was there a case of whisky delivered out near the defendant’s home that day? A. He had it in his arms when I saw it. Q. How far were you from him at the time? A. About as close as Judge Sneed is to me and I said, ‘Don’t you drop that.’ Q. How far were you from him when you first saw the box? A. About as far as the back of the courtroom. Q. Twenty or thirty feet from him when you first saw the box? A. Twenty or thirty steps. Q. When you first saw the box? A. Yes, sir. Q. Was the lid on the box? A. Yes, sir, and it was torn open at the top, the lid was in the box. Q. The top was torn on it? A. Yes, I guess it was. Q. Torn on the pasteboard box? A. Yes, sir, and I could see the bottles of course. Q. You saw the bottles twenty or 30 steps away? A. I saw him when I came up behind him. Q. You did not see the bottles until you searched him? A. Not until I went up on him, nearer to him. Q. When you first observed the pasteboard box you actually did not know what was in the box? A. No, I did not know exactly but I had a pretty good idea. Q. Did you know what was in the box? A. I knew what it was but I could not swear to it. Q. You did not see any whisky until you ran up and caught him? A. I did not see the bottles until I was close to him. Q. At the time you caught him you had your gun out? A. That is right. Q. You told him he was under arrest? A. That is right.”

Cross-Examination

“Q. Did you notice whether or not this box was branded or had any marks on it, in other words did it have the name ‘Whisky’ on it? A. Yes, sir, I think it did.”

Redirect Examination

“Q. At the time you first saw the pasteboard box you could not read the name on the pasteboard box? A. That is right, I did not try.”

In the case of Mosier v. State, 59 Okla. Cr. 106, 56 P. 2d 908, this court held:

“An officer has no more right to search a person on mere suspicion of the commission of a misdemeanor without a search warrant than he has to search his home.”
“No search of a person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws by selling intoxicating liquor, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”
“Where an officer could not observe and become cognizant” of the act constituting the offense by the use of his senses, it could not be committed in his presence so as to authorize the search and the arrest of the defendant without a warrant.”

To the same effect, see the cases of Crossman v. State, 28 Okla. Cr. 198, 230 P. 291; Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Levy v. State, 31 Okla. Cr. 199, 238 P. 235.

In Levy v. State, supra, this court said that in a prosecution for unlawful transportation of intoxicating liquor, the defendant cannot be convicted upon evidence obtained by an unlawful search of his person, and neither the liquor so seized, nor the possession thereof so acquired, is admissible against him.

It is our conclusion that the arrest and search of defendant was upon mere suspicion of the commission of a misdemeanor, and was an unlawful search and seizure as defined by the above authorities, and the evidence so obtained was inadmissible upon the trial of the defendant.

The defendant presents numerous other assignments of error, but it is unnecessary to consider them in view of our decision that the motion to suppress the evidence should have been sustained. The judgment and sentence of the county court of Marshall county is reversed.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    PAUL SCHRACK v. DISTRICT COURT OF OKLAHOMA COUNTY et al.
    No. A-10842.
    July 16, 1947.
    (182 P. 2d 798.)

      See, also, 84 Okla. Cr. 260, 181 P. 2d 270.
    Judd L. Black and Sid White, both of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Attorney, of Oklahoma City, for respondents.
   JONES, J.

This is an original proceeding wherein the petitioner, Paul Schrack, seeks to prohibit the respondents from trying him upon a charge of burglary in the second degree after a former conviction of a felony which charge is pending against him in the district court of Oklahoma county.

In the verified petition it is alleged that the only evidence the state introduced at a preliminary examination to connect the petitioner with the commission of the alleged crime was a confession which was alleged was obtained through coercion while petitioner was unlawfully detained in the city jail of Oklahoma City. There were many other allegations in the verified petition which this court deemed sufficient to justify the issuance of an alternative writ of prohibition for the purpose of having a hearing in connection with said matter. An alternative writ of prohibition was thereupon issued, the cause was set for hearing, a transcript of the evidence taken before the committing magistrate at the preliminary examination was introduced in evidence, and the court, after a consideration of that evidence together with other evidence introduced on behalf of petitioner and the respondents, orally denied the writ of prohibition from the bench, and directed the district court to proceed with the trial of the petitioner. This written opinion is issued in conformity to the order made at the time of the hearing.

At the time of the denial of the writ of prohibition, counsel for petitioner were told that if the petitioner was tried and convicted of said offense and an appeal was taken, the cause would be advanced for an early decision by this court. Accordingly, the petitioner was tried and convicted on February 11, 1947. An appeal was filed in this court on March 20, 1947, and on May 28, 1947, the opinion of this court was rendered affirming the judgment of conviction. Schrack v. State, 84 Okla. Cr. 260, 181 P. 2d 270. In that opinion all of the facts, including the facts and .circumstances surrounding the making of the confession by the accused, were related.

In the case of State ex rel. Wester v. Caldwell, 84 Okla. Cr. 334, 181 P. 2d 843, 844, it was held:

“The remedy under a writ of ‘prohibition’ is limited to cases where act sought to be prohibited is of a judicial nature, in absence of constitutional or valid statutory provision to the contrary, and is directed against the encroachment of jurisdiction by inferior courts, for the purpose of keeping such courts within the bounds prescribed for them by law. * * *
“Writ of ‘prohibition’ may not issue to prevent inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction, or threatens to act in excess of jurisdiction.”

Since the petitioner has had a preliminary examination in which he was represented by counsel, was bound over to the district court for trial by the examining magistrate and an information was filed in the district court, we think the district court has thus acquired jurisdiction to try the accused upon the charge laid in the information. The questions presented are directed to facts which go to the weight of the evidence and are not such as deprive the district court of jurisdiction to try the accused.

The writ of prohibition sought by petitioner is denied.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte THOMAS A. ALBERTSON.
    No. A-10903.
    July 9, 1947.
    (183 P. 2d 255.)

      O. A. Cargill, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and W. N. Mounger, Asst. County Atty., of Oklahoma City, for respondent.
   BRETT, J.

The petitioner, Thomas A. Albertson, was charged in Oklahoma county with the crime of murder. At the preliminary examination he was held to the district court without bail. An information was filed against him in the district court of Oklahoma county, Okla., and said Thomas A. Albertson is now confined in the county jail of Oklahoma county, Okla.

Petition was made to the district court of Oklahoma county for writ of habeas corpus and a hearing thereon on the 13th day of May, 1947, which was duly heard by said court and the defendant, Thomas A. Albertson, was denied bail.

He filed his petition with this court on June 26, 1947, for writ of habeas corpus, alleging that he is not guilty of the crime of murder as charged and that the proof of murder, as charged, is not evident nor the presumption thereof great.

This petition was heard by agreement of the parties in this court on June 30, 1947, at the conclusion of which said proceeding was continued until July 2, 1947, and on said last date completed. It is unnecessary to give a detailed statement of the testimony presented at the hearing before this court. A complete transcript of the testimony taken before the district court on the petition for writ of habeas corpus was introduced herein and oral testimony was also heard at the hearing in this court. The defendant, the only eyewitness, testified in the proceeding before this court. The lower court did not have the benefit of the defendant’s testimony. The evidence in the transcript from, the proceedings taken below and the oral testimony taken in this court, considered together, is sufficient to raise the presumption of a case of probable accidental and not premeditated and intentional homicide. The testimony of the defendant, the only eyewitness, standing alone and uncontroverted by any direct and positive proof to the contrary, is sufficient to entitle the defendant to the writ and the same is granted. Ex parte Williams, 83 Okla. Cr. 322, 177 P. 2d 138. Said Thomas A. Albertson is ordered to be released from the county jail of Oklahoma county upon the giving of bail in the sum of $20,000 to be approved by the court clerk of Oklahoma county.

In keeping with this order, the writ is hereby granted to the above-named petitioner in compliance with the order as hereinbefore stated.

BAREFOOT, P. J., absent and not participating. JONES, J., concurs.


text:
    Ex parte JOHN R. COOK.
    No. A-10901.
    July 9, 1947.
    (183 P. 2d 595.)

      Geo. C. Crump, of Wewoka, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus instituted by John R. Cook, a minor of the age of 17 years, through his father and next friend, Roy Cook, to secure his release from confinement in the State Penitentiary at McAlester.

The verified petition alleged in substance that the petitioner was arrested about 3 a. m. on January 23, 1947, and placed in jail at Ada, Okla.; that on the same day, a complaint charging the crime of burglary in the second degree was filed in the justice of peace court. That the petitioner was brought before the justice of peace without a warrant having ever issued on said complaint and required to plead to said criminal complaint filed against him in the justice of peace court. That neither the county attorney nor any of his assistants appeared before the justice of peace at the time of his arraignment before the justice of peace, but that the county attorney telephoned the justice of peace that the petitioner wanted to plead guilty. That within a very few minutes after he appeared before the justice of peace, he was taken by the sheriff before the district judge of said county and required to plead guilty to an information which had just been filed against him. That he does not know nor remember what happened in the district court, and did not know that he was entitled to have counsel to represent him, nor did he know that he was entitled to 24 hours in which to plead to the information and to have a copy of the information filed against him.

The petition further alleged that the officers who had charge of the petitioner were in such a hurry to get the petitioner into the penitentiary, that the transcript of the justice of peace was not certified before filing it in the district court. That after the petitioner was placed in jail, he was denied the right to call his parents who lived in Ada, or communicate with any of his friends. That the only persons he was permitted to talk to were officers and the owner of the store he was alleged to have burglarized, who advised him to go ahead and plead guilty and it would be easier on him to do so. That petitioner was only 17 years Of age and had reached the seventh grade in school. That he had never been convicted of any crime and was wholly ignorant of his rights and by reason of his youthfulness and ignorance, he did not under- . stand the nature and consequences of his plea. That after a plea of guilty was entered, the district judge sentenced him to serve the maximum term of seven years’ imprisonment in the State Penitentiary, and he was immediately transported to the penitentiary by the sheriff. The petitioner further alleges that the judgment and sentence was void because of the failure of the court to protect the constitutional rights of defendant in the premises.

The response of the warden stated that he was detaining and imprisoning the petitioner, John R. Cook, in the State Penitentiary by reason of the judgment and sentence pronounced by the district court of Pontotoc county, on January 23, 1947, after he was convicted in said court for the crime of burglary in the second degree and the said petitioner was sentenced to serve a term of seven years at hard labor.

Prior to the filing of the petition in this court an application for a writ of habeas corpus was presented to the district court of Pittsburg county. The petitioner, his father, and one other witness appeared before the district court and testified at length concerning the allegations of the petition. A transcript of such testimony was prepared and admitted in evidence before this court in support of the petition at the time said petition was heard. The district judge and assistant county attorney of Pon-totoc county also appeared before the Criminal Court of Appeals at the time of said hearing and testified to what occurred at the time of the arraignment and plea of the accused. In addition, this court permitted affidavits of the chief of police and the county jailer to be filed which affidavits related some of the occurrences in connection with the arrest and plea of guilty entered by the petitioner.

The proof of the petitioner showed that he was 17 years of age on December 3, 1946. That his father had lived near Ada for the past 20 years, during which time he had been a pumper for an oil company. That the father of petitioner did not learn of his arrest or that he had been sentenced to the penitentiary until he read about it in the newspaper the next morning after the boy had been sentenced to the penitentiary. That the petitioner had never been convicted of any crime. That he had sworn falsely to his age in order to enlist in the United States Army, but that when his age was discovered, he was given a discharge. That the petitioner then re-enlisted in the army with his mother signing for him. That he was in the army at the time of the commission of the alleged crime, but was on furlough at the time it was committed. The petitioner testified that he was 17 years of age and had finished the seventh grade in school. That he had never had any experience in the courtroom and did not know when he was brought before the court what he should do. That he was arrested with one Claude Cobb who was about 24 years of age, at Shawnee, Oklahoma, about 3 o’clock in the morning of January 23, 1947. That he was later taken to the city jail at Ada, Okla. That he remained in the jail until about 2:30 p. m. on that day. That he requested the chief of police three different times to allow him to use the telephone to call his father, but that the chief of police told him that he, the chief of police, had already told his father about it, and that he was not allowed to use the telephone. That he had been drinking intoxicating liquor. That he talked to the assistant county attorney who told him he could plead guilty immediately to breaking into the jewelry store or otherwise he would have to wait until the next term of court. That he was taken before the justice of the peace who asked him if he was going to waive preliminary hearing, and he answered, “I guess so”. That after he was taken before the justice of peace, he was taken back to jail where he remained about five minutes before being taken before the district judge. That they there read something to him but he did not know what it was and the district judge said he had 24 hours to plead. That he was not told the penalty for the crime charged against him and was not advised that he could be furnished a lawyer if he wanted one. On cross-examination, he testified that on the night of January 23rd, he met Claude Cobb in a beer parlor. That after drinking some beer, he went with Claude to the Gem Jewelry store where they broke in a window and took some jewelry. That Cobb then stole an automobile and they got in it and left, but were arrested in Shawnee for speeding. The jewelry which was taken was found in the car and they were returned to Ada early in the morning.

The assistant county attorney testified that he talked with the petitioner and his codefendant, Claude Cobb, in the afternoon of January 23, 1947. That they both seemed anxious to plead guilty to burglary of the jewelry store in order to escape prosecution for automobile theft. That he advised them that if he could get hold of the district judge that afternoon he would try to arrange for them to enter their plea of guilty at once. That the petitioner told him he was 17 years of age but he did not inquire as to where his parents lived. That he called the district judge and told him he had two defendants who wanted to plead guilty to the charge of burglary and asked whether he could remain in his office until the prisoners could be brought before him. That he then prepared the preliminary complaint and sent it over to the justice of peace office along with the prisoners. That the petitioner and his codefendant waived preliminary hearing and he immediately filed an information in the district court. That the petitioner and his codefendant, Claude Cobb, were then brought before the district judge. That he, the assistant county attorney, read the information in open court to the prisoners. That the court then advised each of the prisoners the nature of the crime and of their right to counsel and that the court would appoint a lawyer for them if they were not able to hire one. That the petitioner and codefendant each entered a plea of guilty and were sentenced to serve seven years in the State Penitentiary.

The district judge testified that he was advised by the sheriff that the petitioner was only 17 years of age before the petitioner and his codefendant were brought before him for arraignment. That when the petitioner appeared in open court, he (the district judge) went into great detail advising him and his codefendant of all their rights, including their right to trial by jury, right to be represented by counsel, and the right to have 24 hours time in which to plead to the information. That he had the county attorney read the information to the accused in open court. That the petitioner only spoke four or five times while he was in the courtroom and the only words which he spoke were either yes or no in response to questions asked him by the judge. That he did not inquire of the petitioner as to the residence of his parents or whether they had been notified of his arrest and incarceration.

The right of one accused of crime to the assistance of counsel in the preparation of his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Our Constitution, art 2, § 20, Okla. Const., provides that in all criminal prosecution the accused “shall have the right to be heard by himself and counsel”.

Our Code of Criminal Procedure provides:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.” 22 O. S. 1941 § 464.

In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, it was held:

“Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to hail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to his safety.”

In the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141, this court adopted the following provisions of law as shown by the syllabus:

“Under bill of rights, sec. 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment of information.”
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”
“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.”
“A person prosecuted for a crime may waive the rights guaranteed to him by bill of rights, relating to trial by jury, right to be heard by counsel, etc.”
“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.”
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.”
“Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable.”
“One charged with crime is as much entitled to assistance of counsel in preparing for trial, as at the trial itself.”
“In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.”
“A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.”
“Where the accused is young, illiterate, and inexperienced in court proceedings, and charged with a felony, the court should proceed with caution. The caution to be exercised depends upon the gravity of the offense charged.”

In the case of In re Stevens, 81 Okla. Cr. 65, 160 P. 2d 415, 418, it is stated in the body of the opinion:

“In Ex parte Meadows, supra, and Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, this court followed the opinion of the Supreme Court of the United States in the case of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461, 146 A. L. R. 357, in which it is stated: ‘When this right (to counsel) is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right,, the Sixth. Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of the trial may be lost “in the course of the proceedings” due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and one imprisoned thereunder may obtain release by habeas corpus. A judge of the United States — to whom a petition for habeas corpus is addressed — should be alert to examine “the facts for himself when if true as alleged they make the trial absolutely void.” ’ See, also, in this connection, Mullen v. State, 28 Okla. Cr. 218, 230 P. 285; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645.”

The facts in this case are more strongly in support of petitioner than were the. facts in the cases of Ex parte Meadows, supra; Ex parte Barnett, supra; Ex parte Stinnett, 71 Okla. Cr. 184, 110 P. 2d 310; and In re Stevens, supra. Here the accused was only 17 years of age. He was born and reared in Pontotoc county. His father and grandfather had been long time residents of that county. His grandfather, who had reared the boy, had lived in the county for over 50 years and had served as justice of peace and constable. The boy was below the average of his age in intelligence and had never been charged or convicted of a criminal offense. No effort was made by the trial court to ascertain whether the boy’s parents had been notified. While the parents of the youth were not known to the district judge or the assistant county attorney, they, were known to some of the officers, but they were not notified of the arrest of the petitioner.

A person can hardly read this record without being forced to the conclusion that the officers were anxious to get this boy off to prison before it became generally known that he was under arrest. It is commendable in officers to attempt to promptly apprehend and convict law violators. However, in dealing with minor defendants, the rules of criminal procedure set up requirements which must be followed. The petitioner and his codefendant stood on different ground. The codefendant, Cobb, was a mature adult; he had served time in prison; he was guilty of many offenses, and at the time of the alleged burglary was wanted for prosecution by the Federal Government. On the other hand, the petitioner was an immature youth who had never been convicted of crime. The trial judge testified that he has since heard that petitioner was a juvenile delinquent; but if such were a fact, it was not called to the attention of this court.

It is our conclusion that because of the youthfulness, illiteracy and inexperience of the petitioner, and the fact he was charged with a serious crime, was sufficient to require the court as a necessary requisite of due process of law to appoint counsel for him, even though petitioner did not ask for aid of counsel. Although a trial court upon arraignment of one accused of crime might tell the defendant of his various rights under the law, such talk is meaningless if the person accused is so youthful, ignorant and inexperienced in court proceedings that he does not understand all the court means or the nature and consequences of the proceedings through which he is passing. In Oklahoma, a person may not in a civil suit take a judgment against a minor without the appointment of a guardian ad litem. Certainly, if the law protects the accused in his property rights in a civil case to that extent, then as equally a solemn duty should be imposed upon the court when a minor defendant is brought before him accused of a felony where his life and liberty are likely to be taken.

We are not holding that a minor defendant may not waive his right to counsel in a criminal case, but trial courts should be extremely cautious in proceeding to pronounce judgment where such a waiver is attempted, to be made. We feel that some inquiry should have been made as to the residence and parentage of the youth, and where he was seeking to plead guilty without benefit of counsel, that the time for pronouncement of judgment and sentence should have been postponed until the parents or one of them was notified, and had an opportunity to determine what should be done, if anything, for the boy.

It is our judgment that the trial court lost jurisdiction to pronounce judgment against petitioner by his failure to complete the court by appointing counsel to represent petitioner before the plea was entered. Ex parte Meadows, supra.

It is therefore ordered that the judgment and sentence filed against the petitioner, John R. Cook, in case No. 3765 in the district court of Pontotoc county, and all other proceedings in said court in said cause subsequent to the filing of the information therein, be and the same are hereby vacated and set aside.

It is further ordered that the writ of habeas corpus be issued and the warden of the State Penitentiary at McAlester is hereby commanded forthwith to deliver the petitioner, John R. Cook, to the custody of the sheriff of Pontotoc county.

It is further ordered that the sheriff of Pontotoc county hold the said John R. Cook pending the disposition of the charge filed against him in case No. 3765 in the district court of Pontotoc county, or until he is otherwise discharged as provided by law in such cases.

BAREFOOT, P. J., not participating. BRETT, J., concurs.


author: BEETT, J.

text:
    HARRY RITTER v. STATE.
    No. A-10721.
    July 16, 1947.
    (183 P. 2d 257.)

      George Miskovsky, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BEETT, J.

The defendant, Harry Eitter, was charged jointly by information with Euth Fugatt, for the offense of illegal possession of intoxicating liquor, to wit: 138 pints, 48 half pints, and 11 four-fifths of tax-paid whisky. A severance was prayed for and granted, and the two defendants tried separately. The whisky was discovered on a search of premises described as 2731 Northwest 18th street, Oklahoma City, Okla. The defendant was not at the premises at the time of the search. The only evidence tending to connect him either with the premises or the whisky, is of a highly vague and speculative character. The evidence upon which the state seeks to sustain its judgment and sentence was given by Mr. M. B. Cooper and Mr. Jack Caldwell, both of the Oklahoma City police force. M. B. Cooper testified as follows:

“Q. Where did you find the liquor in that case? A. In a clothes closet. Q. Do you know of your own personal knowledge that the defendant herein, Harry Eitter, lived at that address? A. No, I don’t other than statements. Q. Did you find any clothing in the closets? A. Yes, sir; there was clothing there. Q. Did you find any men’s clothing? A. Yes, sir. Q. Do you know who those clothes belonged to? A. No, I don’t, other than statements that were made.”

Mr. Jack Caldwell, of the Oklahoma City police force testified as follows, to wit:

“Q. Will you state what you found there? A. I found 184 pints of whisky in a clothes closet. Q. What room of the house was that in? A. I believe it was in the northeast room. Q. Were there any clothes in that clothes closet? A. Yes, sir; I believe there were. Q. Do you know who lived at that address. A. Well, not for sure. I know who was there. Q. Who was there at the time you made the search? A. At the time we made the liquor investigation, Ruth Fugatt was there. Q. Do you know of your own certain knowledge whether or not the defendant herein, Harry Ritter, resided at that address? A. Yes; I think he resided there.”

The only evidence upon which the state relies to definitely connect the defendant Ritter with the premises, the men’s clothes, and the whisky, was given on cross-examination and is as follows, to wit:

“Q. You say you know of your own certain knowledge that he did reside there? A. Yes, sir. Q. He wasn’t there when you made the raid, was he? A. No, sir. Q. Did you rely on whether he lived there or not on the basis of what someone told you? A. Partly; yes, sir.”

There is no other evidence in the record tending in any way to connect the defendant either with the premises, the clothes, or the whisky. The state contends that the circumstantial evidence of men’s wearing apparel being in the clothes closet points to the defendant’s guilt. We cannot follow this line of argument, unsupported as it is by any proof connecting the defendant with the premises, the clothes, and the whisky. Furthermore, the state contends that the defendant should be convicted on the testimony of Mr. Caldwell, given on cross-examination, in which he definitely sought to connect the defendant with the premises. This testimony must be measured in light of his evidence on direct examination in which he said, “Well, not for sure” and, “Yes, I think he resided there.” The officer’s first testimony, “Well, not for sure” and, “Yes, I think he resided there,” reveals that he is in doubt as to the actual residence of the defendant. We are inclined to believe that he was in doubt. His testimony on cross-examination, with nothing more to support it, does not remove the doubt first created in the court’s mind by his answer given on direct examination. From the foregoing, the court cannot say, beyond a reasonable doubt, that the defendant resided at the premises in question or that he was connected either with the clothes or with the whisky found on the premises. This being true, the record is reduced to the thinnest sort of speculation. It must appear not only that the offense was committed, but that the evidence inculpating the defendant therewith, should be of such a character as to establish, with a degree of certainty, the defendant’s connection with the premises and the whisky, transcending mere probability or suspicion. In the case at bar, the evidence does no more than create a suspicion of guilt, based primarily upon circumstantial evidence of the weakest character. In such a case, it is the duty of the court to set aside a conviction, judgment, and sentence based upon evidence which, in its strongest light, is only sufficient to create a mere suspicion of guilt. Where, as here, the evidence is circumstantial, it must be such evidence as not only to be consistent with and point to the guilt of the accused, but must also be inconsistent with his innocence. This court has repeatedly held it will not weigh the evidence and disturb a verdict if there is evidence in the record to support it. The record made in this case does not present such a situation. It is entirely inadequate and insufficient to support the conviction. In this connection, see Akins v. State, 81 Okla. Cr. 197, 162 P. 2d 195, 196, wherein the court said:

“The general rule in criminal cases is that where the 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. Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Ward v. State, 15 Okla. Cr. 61, 175 P. 60; Barger v. State, 46 Okla. Cr. 95, 287 P. 1059; Dees v. State, 81 Okla. Cr. 48, 160 P. 2d 406.”

In Simpson v. City of Tulsa, 67 Okla. Cr. 224, 93 P. 2d 539, this court said:

“To sustain a conviction of crime, each and every material element must be supported by the evidence.
“To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty transcending mere probability or strong suspicion.
“While it is well settled that this court will not disturb the verdict on account of the insufficiency of evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon trial for an offense.”

See, also, Cude v. State, 42 Okla. Cr. 357, 276 P. 240; Hewitt v. State, 61 Okla. Cr. 415, 69 P. 2d 93; Severe v. State, 64 Okla. Cr. 53, 77 P. 2d 116; Williams v. State, 38 Okla. Cr. 370, 261 P. 977; Bass v. State, 29 Okla. Cr. 92, 232 P. 955; Davis v. State, 32 Okla. Cr. 436, 241 P. 500.

Finding the evidence entirely insufficient to support the conviction, the case is reversed and the defendant ordered discharged.

BAREFOOT, P. J., absent and not participating. JONES, J., concurs.