text:
    R. T. THURMAN v. STATE.
    No. A-2448.
    Opinion Filed August 7, 1916.
    (158 Pac. 1124.)
    INTOXICATING- LIQUOB.S — Criminal Prosecutions — Verdict. Where the information charged that the defendant did have the possession of intoxicating liquors with intent to sell the same, a verdict of "guilty of unlawful possession of intoxicating liquors" is sufficient. The failure of the jury to make an express finding as to the intent to sell is not error requiring a reversal of the judgment.

      Appeal from the Superior Court of Muskogee County; H. C. Thurman, Judge.

    R. T. Thurman, convicted of a violation of the prohibitory law appeals.
    Affirmed.
    S. E. Gidney, for plaintiff in error.
    S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen.,, for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the superior court of Muskogee county and -sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars, in accordance with the verdict of the jury.

The information charges that in said county on the 18th day of August, 1914, R. T. Thurman did, knowingly and unlawfully,, have possession of twenty (20) ten-ounce bottles of whisky, four (4) sixteen-ounce bottles of whisky, .with the intention on the part of him to sell the same.

J. E. Ledbetter, sheriff of said county, testified that in executing a search warrant against the defendant’s place of business, known as the North End Drug Store, that he found the whisk)' in cartons on the shelves; that there was no difference between the cartons containing the whisky bottles and those containing medicine bottles; that the defendant was present and said that he was the owner of the drug store. That he knew the general reputation of the defendant’s place of business as to being-a place where whisky was sold, and that reputation was that, whisky was being sold there.

The .evidence for the defendant shows that he conducted the North End drug store and a rooming house on the floor above.

Tom Richards, for the defendant, testified that he carried a grip there for "’some fellows” who were delegates to a convention; that they went into the drug store and they took some little-packages out of the grip and put them on the show case, and then: told the porter to keep the grip until they returned, “that they would be right back.”

One or two other witnesses testified that they were present at the drug store when the witness, Richards, brought in the grip, and that the delegates asked one of the boys there to keep the grip, and the packages they took out of it, until they returned. The defendant did not testify:

The jury returned the following verdict:

“We, the jury in the above entitled action, duly impaneled •and sworn upon our oaths, find the defendant, R. T. Thurman, guilty of the crime of having unlawful possession of intoxicating 'liquprs and fix his punishment at imprisonment' in the county jail for a period of thirty days and a fine of $50.00.”

The-first contention is that the information is duplicitious, and that the court erred in overruling defendant’s demurrer thereto, is without merit. The information is sufficient.

It is next contended “that the verdict is not in conformity with law, and does not find the defendant guilty of the offense alleged in the information,” in that “the jury do not find that the defendant’s possession of the intoxicating liquors was with intent to sell, barter, and give away the same.”

It appears from the record that the first objection made to the sufficiency of the verdict was in the motion for a new trial, and that no objection was made to the verdict at the time it was returned.

We think the verdict is sufficient.

In the case of Walker v. The State, 11 Okla. Cr. 339, 127 Pac. 896, this court said:

“Strict rules of construction should never be applied to the verdict of a jury. Their verdict should receive a common sense construction, and, if it is possible to arrive at.the intent and purpose of the jury, the verdict should be upheld.”

It is also contended that the verdict is contrary to the evidence.

Whether the liquor in question was brought to the defendant’s place of business without his knowledge or consent or whether it was kept there by him for sale, were questions of fact for the determination of the jury, and it is not the province of this court to interfere with the conclusion reached by a jury on conflicting evidence.

Finding no material error in the record, the judgment is affirmed.

ARMSTRONG and BRETT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    GEORGE TOLLIVER v. STATE.
    (163 Pac. 130.)
    No. A-2516.
    Opinion Filed May 6, 1916.
    INTOXICATING- LIQUORS — Evidence—Sufficiency. In a prosecution for unlawfully conveying intoxicating- liquor, the evidence considered and held sufficient to sustain the conviction and that no reversible error was committed up,on the trial.

      Appeal from the County Court of Nowata County; F. A. Calvert, Judge.

    George Tolliver was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      H. O. Bland, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the county court of Nowata county, rendered on the 21st day of April, 1915, upon a verdict convicting George Tolliver, the defendant, of unlawfully transporting and. conveying two quarts and two half pints of whisky from a designated point in Nowata City to another place in said city, and assessing his punishment at imprisonment in the county jail for a period of ninety days and a fine of two hundred and twenty-five dollars.

The undisputed facts as testified to by five witnesses for the state are that the defendant conveyed the whisky as charged. There was no testimony offered on the part of the defense. There are but two assignments of error relied upon for a reversal of the judgment: Insufficiency of the evidence to support the verdict, and an alleged erroneous instruction. Both are destitute of merit. The evidence is conclusive of the defendant’s guilt and the record shows that he had a fair and impartial trial, and that no error prejudicial to his rights was committed. It follows that the judgment should be and is hereby affirmed.

ARMSTRONG, J., concurs.


text:
    GROVER C. SMITH v. STATE.
    No. A-2517.
    Opinion Filed August 26, 1916.
    (159 Pac. 668.)
    1. INSTRUCTIONS — Burden of Proof. In a homicide ease where defendant denied firing the fatal shot and there was evidence tending to show that the homicide was justifiable on the ground of self defense, the court instructed the jury in part as follows: “If they believe from the evidence beyond a reasonable doubt that at the time the said shooting was done, it was done in self defense as defined and set out in the instructions herein, you should find the defendant not guilty.”
    “The court instructs the jury: That if they believe from the evidence in this case beyond a reasonable doubt, that the defendant and one Charles Williams were just immediately prior to the firing of the shots which' caused the death of the deceased, engaged in a difficulty, and that the deceased, armed with a deadly weapon voluntarily engaged in said difficulty and struck the defendant over the head and knocked him down, and that both the said Charles Williams and the deceased jumped or fell upon the defendant and all three while on the ground engaged in a scramble, and during the said scuffle or scramble the shots were fired which produced the death of the deceased; and shall further believe from the evidence, beyond a reasonable doubt, that defendant did not fire the shot that took deceased’s life, that then and in that event, they should find the defendant not guilty. ’ ’

    Held, prejudicial error, as placing the burden of proof upon the defendant, and requiring the jury before finding for acquittal to believe from the evidence beyond a reasonable doubt that the defendant was innocent.
    2. BURDEN OF PROOF — Degree of Offense. The burden does not rest upon the defendant, to establish even to a reasonable probability, the truth of an affirmative defense; if, upon the evidence both for the state and the defendant a .reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it, and where the crime charged is distinguished into degrees the defendant is entitled to the benefit of that doubt, as well with respect to the degree of the crime as to every essential element of that degree, and in these respects the burden'never shifts from the state to the defendant.

      Appeal from the District Court of Pawnee County; Conn Dinn, Judge.

    Grover C. Smith, convicted of manslaughter in the first degree, appeals.
    Reversed.

      McNeill & McNeill, for plaintiff in error.
    S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Grover C. Smith, herein referred to as defendant, was informed against for the crime of murder, alleged to have been committed on the 28th day of August, 1914, in Pawnee county, by killing one J. W. Brooks, by shooting him with a pistol.

Upon the trial, the jury by their verdict, found defendant guilty of manslaughter in the first degree and assessed his punishment at four years’ imprisonment in the penitentiary.

Motion for new trial was duly filed, overruled and .judgment was rendered in pursuance of the verdict on the 10th day of February, 1915.

From the judgment defendant appealed by filing in this court August 9, 19 Í5, a petition in error with case-made.

The evidence shows-that defendant was a farmer boy about twenty-one years of age, residing in Osage county near the east end of the bridge across the Arkansas river, at the town of Ralston, in Pawnee county. That on the 28th day of August, 1914, a carnival company was exhibiting at Ralston, and in connection therewith the deceased, J. W. Brooks was operating what was known as a Hoop-Lah-Stand, and adjacent thereto his wife was conducting a game of chance, and with them was Charley Williams, a negro minstrel. That evening defendant came across the bridge to Ralston and went to the park where the carnival was being held, and after visiting several stands, came to the stand that the wife of the deceased was operating and purchased three rings and threw the same for the prizes; and one ring dropped over a prize clock; this prize, defendant claimed, but Mrs. Brooks claimed that the ring did not drop clear over the clock and she refused to give the clock to defendant; the deceased came up and had some conversation with defendant, but no difficulty arose; defendant then went on to the dance platform and from there to the merry-go-round; and then went towards the deceased’s stand. As to what happened then, the evidence is conflicting.

The wife of the deceased, Mrs. Florence Brooks, testified that when defendant returned, a couple of Indians were quarreling with the negro, Williams, and her husband called to the negro to come away, and defendant then fired two shots at the negro and her husband rushed m between defendant and the negro and then all three clinched, and as they fell her husband was on top, and as she ran for help, she heard three more shots fired; that her husband died the next day as the result of a gunshot'wound which passed through his body.

The negro, Williams, disappeared at the time of the tragedy, and did not testify as a witness. ,

As a witness in his own behalf the defendant testified that he was passing the stand operated by the deceased and saw the negro, Williams, holding Tom Butler, an .Indian boy by the coat collar, shaking him, and he told the negro to turn the boy loose, and the negro said, “maybe you want some of it,” and drew a gun and shot at him, and someone struck him on the head, cutting a large gash across the top of his head, knocking him senseless; and he did not regain consciousness for some time, that he never owned a gun or pistol and never carried a pistol, and did not have one at that time; that he did not shoot the deceased and did not fire any of the shots. -

Several witnesses for defendant testified that when the defendant and the negro were fighting the deceased ran from his stand with a hatchet and struck defendant on the head with it; that during the melee several'shots were fired; that officers arrived and pulled the deceased and the negro off of defendant, and defendant’s head at the time was covered with blood.

A reversal is asked on account of alleged errors in the instructions given by the court in its charge to the jury.

In answer to plaintiff’s in error brief, the Attorney Genera-bas filed a confession of error for me reason mat under me instructions given the defendant was required to prove his defense beyond a reasonable doubt.

After a careful examination of the record, including the charge of the-court, we are of opinion that the confession of error is well taken and should be sustained.

The latter part of instruction No. 14 was in the following language:

“But if they believe from the evidence beyond a reasonable doubt that at the time the said shooting was done, it was done in self-defense as defined and set out in the instructions herein, you should find the defendant not guilty.”

The court also gave the following instruction to whicln an' exception was taken:

“No. 18. The court instructs the jury. That if they believe from the evidence in this case, beyond a reasonable doubt, that the defendant and one Charles Williams were just immediately prior to the firing of the shots which caused the death of the deceased, engaged in a difficulty, and that- the deceased, armed with a deadly weapon, voluntarily engaged in said difficulty and struck the defendant over the head and knocked him down, and that both the said Charles Williams and the deceased jumped or fell upon the defendant and all three while on the ground engaged in a scramble, and during the said scuffle or scramble the shots were fired which produced the death of the deceased; and shall further believe from the evidence, beyond a reasonable doubt, that defendant did not fire the shot that took deceased’s life, that then and in that event, they should find the defendant not guilty.”

The effect of these instructions given by the court was to place the burden of proof of justifiable homicide in self-defense on the defendant. The law only requires the defendant to raise a reasonable doubt as to his guilt, if he does this he should be acquitted. The burden does not rest upon the defendant to establish event to a reasonable probability the truth of an affirmative defense; if upon the evidence, both for the state and the defendant, a reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it. The instructions quoted deprived the 'defendant not only of the presumption of innocence, but placed the burden on him to prove that he did not fire the shot that took the life of the deceased, and not onl> placed upon him the burden of proof, but required him to prove the same beyond a reasonable doubt.

See McClatchers v. State, 12 Okla., 152 Pac. 1139.

Washmood v. United States, 10th Okla. Cr. 254, 136 Pac. 184.

For the reasons stated we are of opinion that the defendant has not had that fair and impartial trial which the law guarantees to one accused of crime. It follows that the judgment of conviction should be reversed and a new trial ordered. Judgment reversed.

ARMSTRONG and BRETT, T. J., concur.


text:
    JACK ANTHONY v. STATE.
    No. A-2639.
    Opinion Filed September 18, 1916.
    (159 Pac. 934.)
    1. APPEAL — Review. In reviewing a capital conviction, this court not only acts in the capacity of an ordinary appellate tribunal, reviewing errors of law raised by exceptions duly taken, but it is the duty of the court to consider the entire record, including the evidence, for the purpose of determining whether any “error complained of has probably resulted in a miscarriage of justice. ’ ’ If upon such examination, the court is satisfied that the verdict is contrary to the evidence and the law, or if considerations of justice require a new trial, it is the duty of the court to grant it, whether any exception shall have been taken or not in the court below.

      2. APPEAL — Modification of Sentence. Under section 6003, Rev. Laws, this court, exercising its revisory jurisdiction, has the power to modify any judgment and sentence appealed from, in the furtherance of justice, by reducing the sentence.
    •3. APPEAL — Modification of Séntence. The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.
    4. HOMICIDE — Punishment — Evidence—Sufficiency. Evidence reviewed, in a prosecution for murder, and held sufficient to justify a conviction for murder, but insufficient under the facts' and circumstances of the ease to warrant imposing the death penalty, and for this reason the judgment and sentence is modified to imprisonment in the penitentiary for life at hard labor.

      Appeal from the District Court of Muskogee County; R. P. de Graffenried, Judge.

    Jack Anthony, convicted of murder with death penalty assessed, appeals.
    Judgment and sentence modified to life imprisonment and as so modified affirmed.

      P. A. Gavin, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Jack Anthony, herein referred to as the defendant, was convicted of wife murder and his punishment assessed at death on an information filed in the district court of Muskogee county on the 14th day of September,. 1915, wherein it was charged that the said Jack Anthony, in said county, on the 12th day of June, 1912, did kill and murder one Nancy Anthony, by shooting her with a pistol. In pursuance of the verdict of the jury he was sentenced to suffer death by electrocution as provided by law. The judgment was rendered' on the 17th day of November,. 1915. The appeal is from the judgment and sentence.

No brief has been filed on behalf of the plaintiff in error, and we have not been favored with an oral argument in his. behalf. The grounds of the motion for a new .trial are that “The-verdict is not sustained by sufficient evidence and is contrary to law. That the court erred in its rulings on the admission and rejection of evidence; to which rulings of the court the-defendant then and there excepted. Errors of law occurring at the trial and excepted to by defendant, and which are manifest by inspection of the record.”

The assignments of error are the same with the additional assignment that the court erred -in overruling the motion for a new trial.

Upon a careful examination of the record we find that no exceptions were taken on the trial to any ruling of the court on the admission or rejection of evidence, and no objections were made or exceptions taken to the instructions given by the court; and the charge upon the material points was as favorable to the defendant-as he could properly request. No objection was made to the sufficiency of the amended information. It properly charges the crime of murder and is sufficient.

In reviewing a capital conviction this court acts not only in the capacity of an ordinary appellate court reviewing questions of law raised by exceptions duly taken, but under the provisions of our procedure criminal if is the duty of this court to consider the entire record for the purpose of determining whether any “error domplained of has probably resulted in a miscarriage of justice,” (Sec. 5005, Rev. Laws). If after an examination of the whole record the court is of the opinion that the verdict is contrary to the evidence and the law, or that justice requires a new trial, it is the duty of the court to grant it whether, any exception shall have been taken or not in the court below. Our code further provides that this court has the power to modify any judgment appealed from when deemed proper in the furtherance of justice. (Sec. 6003, Rev. Laws).

We have given this case that careful consideration which its importance to the public and its solemn- consequences to the defendant demand. From our examination of the record we are brought to the conclusion that the verdict, in so far as it responds to the issue of guilty or not guilty of the crime of murder, is sustained by the evidence. While the jury might have had a reasonable doubt, they might also with propriety regard the evidence as sufficient to exclude every reasonable doubt of the defendant’s guilt. The only other question presented by this appeal is the sufficiency of the evidence to warrant the extreme penalty of the law.

In the case of Fritz v. State, 8th Okla. Cr. 342, 128 Pac. 170, it is said:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice, and the other is an act of grace. Commutation is a matter of discretion, and may be refused. Justice is imperative, and must not be denied. The fact that the governor has the power to commute does not abridge the defendant’s right to appeal to this court for relief. In other words the provision of our criminal procedure act makes it the duty of this court to review the record, and in a proper case, if necessary, in the futherance. of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.”

It appears that all the parties concerned in the tragedy were negroes; that between sundown and dark the defendant in attempting to prevent his wife from leaving their home shot her through the body with a pistol, and the next evening she died as the result of the gunshot wound. Two eye witnesses of the tragedy testified for the state.

The first witness, Jim Martin, testified that he lived near ■the corner of Third and Kalamazoo streets in Muskogee, and the defendant and his family lived in the next house; that on the morning of the tragedy, about 4 o’clock, the deceased came to his house, saying that she had just returned on the train from Dallas, Texas; that Mary Anthony, the fourteen-year-old daughter of the Anthony’s, was staying at his house at the time. That the defendant visited his house once or twice that afternoon and the last time said to him, “my wife is here and I want you to put her out,” and he told the defendant, “if you want your wife she is in the house, come in and get her and take her out,” and then witness went and sat on the back porch; that shortly after the deceased rushed to the back porch where he was sitting and the defendant came around from the front and they met in the yard and between the houses, the deceased said, “I thought when I come back home you were not going to. bother me any more,” and the defendant laughed and said, “I am not going to bother you, come on home,” and she said, “I am not going to go home with you”; that her daughter was following her and the girl said, “Papa, don’t shoot Mama,” and he said, ‘come on and go home,” that they “tussled” there a little while, and he said, “Get out of the way, Mary,” and shoved the revolver around and shot his wife. That at the time a cab was standing in front of - the house.

The second, Mary Anthony, testified that she was seventeen years old, daughter of the defendant and the deceased, that'her mother had been to Dallas and arrived in Muskogee at 4 o’clock Monday morning and went to Jim Martin’s; that afternoon her father came to Martin’s and went into the room where her mother was and they sat down together and were talking; that he then went off and her mother telephoned for a cab; that there were other girls there and one was playing the piano; when the cab arrived her father returned and stood outside the screen door and would not let her out, and he told the cab driver to leave; then her mother ran through the house and out the back door, and she followed her and her father ran around the house and ran up to them and she threw her arms .around her mother and her father grabbed her and pulled her back and shot her mother. That her father then ran away.

Thomas Ransom, a witness for the state, testified that about 8 o’clock on the second or third night after the shooting the defendant came to his place in Muskogee, and asked him if his wife had died, and he told him she was dead; that he left a loaded pistol there with one empty cartridge shell in it, and another cartridge was snapped; that he said he was hungry and witness gave him a quarter, and after staying about ten minutes he left.

Two or three witnesses testified to previous threats made by the defendant.

A deputy sheriff testified that he had a warrant for the defendant and had been unable to locate him from June, 1912, until September, 1915, at which time he arrested the defendant at St. Joseph, Mo.

■As a witness in his own behalf the defendant testified that he was forty-three years old, and had been married to his wife twenty-one years at the time of her death, and they had three children. That they had been living in Muskogee about two years when his wife left him; and was gone about two months < and then returned and in the month of June she went to Dallas. That he bought her the ticket to go to Dallas and went to the depot with her; that she said she would be back in four or five days and he went to the station to meet her, but she did not come back on that train; that he was working that day on a sewer, and quit work at 3 olclock; that his little son met him and said, “Papa, mamma is here and she is at Martin’s,” that he called on her there and then went home and cooked his supper; that his daughter, Mary, brought him a note from his wife telling him to come over there where she was, and he went to Martin’s and talked to her and tried to get her to come home: that they went out on the porch and were sitting there when a cab drove up and the cabman asked if Mrs. Anthony was there and he answered that she was, but that she was not going anywhere. About that time his wife, who had went into the house, came to the screen door and he said, “you are not going off tonight,” she said the cab .came for her, and he said, “why do you want to act like this? You cannot be running around town that way. I have tried to tell you about how people talk about you running around town and I don’t want that to occur any more. You ought not to do that; you are raising a little girl here and after you might be dead they will all look back and say what her mother was,” and she said, “You know they talked about Jesus Christ when he was on earth,” and she picked up a hand satchel and hung it on her arm and went out the back door; that he went around and met her between his house and the Martin house, and she said, “I am going North and you leave me alone,” and she ran her hand into her grip and pulled out a pistol and he grabbed the gun barrel and then heir wrists, and she said “turn it aloose, turn it aloose,” and the gun went off; that his left hand was burned by the shot. That if his wife had filed suit for a divorce he did not know it.

The foregoing is a substantial statement of the evidence in the case.

While this court is satisfied by the evidence of the defendant’s guilt, however after a patient consideration of the evidence we are convinced that it is insufficient to warrant the extreme penalty of the law. It is a fair inference from the facts and circumstances in evidence in this case that the defendant was provoked by the conduct of his wife, the probable effect of which conduct would be to cause their -daughter to lead an immoral life, as the defendant believed.

While the provocation was not sufficient to reduce the homicide from murder to manslaughter in the fire degree, yet considering the state of the defendant’s mind at the time the homicide was committed, and it appearing that the testimony of the two eye winesses involved inconsistencies and contradictions, which it is needless to point out, we are of the opinion that the jury abused its discretion in assessing the death penalty and that for this reason the judgment and sentence should be modified to imprisonment in the penitentiary for life at hard labor. The judgment of the district court of Muskogee county as thus modified is affirmed.

: ARMSTRONG and BRETT, J. J., concur.


author: BRETT, J.

text:
    RALPH PERRYMAN v. STATE.
    No. A-2125.
    Opinion Filed September 18, 1916.
    (159 Pac. 937.)
    1. DEFENSE — “Voluntary Intoxication.” The fact that one person gives another intoxicating liquor, which he voluntarily drinks, does not render his intoxication involuntary. Involuntary intoxication never exists where the person intoxicated knows what he is drinking-, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion.
    2. HOMICIDE — Defenses—-Intoxication. Involuntary intoxication is no defense or excuse for the commission of crime, but in a prosecution for murder may Be considered by the jury, only for the purpose of determining whether or not the accused, at the time of the homicide, was capable of forming and entertaining a premeditated design to effect death.
    3. TRIAL — Instructions. A court is not required to instruct the jury upon the defendant's theory of a case, unless there is some competent evidence tending reasonably to substantiate such theory.
    4. HOMICIDE — Offenses—Intoxication. Though one be voluntarily intoxicated, if he was so drunk that he did not have power, at the time of the homicide, to form and entertain a premeditated design to effect the death of the deceased, and there is no evidence of malice and premeditation prior to the intoxication, then in such a ease the accused is guilty of manslaughter in the first degree, and not murder.
    5. HOMICIDE — Defenses—Intoxication. Alcoholic insanity, or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity, occasioned immediately by drunkenness, does not destroy responsibility for crime. But to constitute insanity, caused by intoxication, a defense to an indictment or information for murder, it must be insanity eaused by chronic alcoholism, and not a mere temporary mental condition.

      Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge.

    Ralph Perryman was convicted of manslaughter in the first degree, and he brings error.
    Affirmed.

      Davidson & Williams, of Tulsa, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error in this case, who will be referred to as defendant, killed one Charles Smith in the town of Jenks, Tulsa county, on the night of April 29, 1912, and was found guilty of manslaughter in the first degree, and sentenced to 12 years in the penitentiary. The defendant killed deceased in a bootleg and gambling joint run by one C. C. Upton. The defendant was not quite 17 years old when he committed the crime, but at that age seems to have been addicted to- the habit of drinking and gambling. The evidence is that he drank some at another place before entering the Upton joint, and that when he went in there, Upton engaged him in a game of “twenty-one,” and during the progress of the game gave him a number of drinks of whisky, and played with him at this game until he won all the money the defendant had on his person. Defendant then left the joint, and was gone some time, but came back again, and tried to sell a Winchester rifle he had with him. While Upton was counting his money, preparatory to closing, defendant remarked that he believed he would hold him up. No one took the remark seriously.' But a few minutes later, with his rifle in hand, he ordered Upton and the three or four men remaining in the joint to line up against the wall. All lined up except Smith, the deceased. Defendant turned to Smith saying: “Didn’t I tell you to line up?” Smith replied that he refused to do so. Thereupon the defendant shot Smith, killing him instantly. He then shot Upton, inflicting a flesh wound; also shot at one Dr. Norwood, the bullet passing through the clothing, but missing the body.

Defendant testified that Upton gave him the whisky that made him drunk, and that he was so drunk that he had no recollection of returning to the joint, or of anything that transpired after his return; that he had no recollection of having ever seen Smith, or of ordering the “line up,” or of firing the fatal shot. And the theory of the defense is based upon this testimony. It is insisted here, and was also insisted in the lower court: First, that because Upton gave defendant the whisky that made him drunk, for the purpose of robbing him in the gambling game, his intoxication was involuntary; and, second, that he was so drunk that his intoxication produced a state of temporary insanity; and that for these reasons, he should not be held responsible for the crime committed, and should go unpunished. The defendant requested the trial court to instruct the jury to that effect; but the court properly refused to give the requested instructions.

The theory of the defendant is based upon an entirely erroneous assumption. In the first place, the fact that one person gives another intoxicating liquor, which he voluntarily drinks, and upon which he becomes drunk, does by no means render his intoxication involuntary. In fact, involuntary intoxication is a very rare thing, and can never exist where the person intoxicated knows what he is drinking, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion.

Besides, involuntary intoxication is no defense or excuse for the commission of crime, but may be considered in a prosecution for murder only for the purpose of enabling the jury to determine whether or not the accused, at the time of the homicide, was capable o'f forming and entertaining a premeditated design to effect death. Wharton on Homicide (3d Ed.) p. 811, lays down the correct rule, and the one adopted by this court, as follows:

“Intoxication, though involuntary, i-s to be considered by the jury in a prosecution for murder in the first degree, in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the accused at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear.”

If the jury should find that malice and premeditation existed prior to the involuntary intoxication, in that event it would not ever reduce the crime from murder to manslaughter in the first degree. But, if no malice or premeditation is shown to have existed prior to the homicide, then it is a question for the jury to determine whether or not such intoxication rendered the accused, at the time of the homicide, incapable of forming and entertaining a premeditated design to effect death.

2. The defendant complains of the instructions given by the court; but we have examined the instructions given, and find that the errors in the instructions are favorable to the defendant; hence he cannot complain. The court instructed the jury, in part, to the effect that, if they found the homicide was committed by defendant while in a state of involuntary intoxication, they should acquit him. There are two errors in the giving of this instruction : First, there was no evidence upon which to base an instruction with reference to involuntary intoxication. Neither the defendant nor any other witness testified that the defendant did not voluntarily drink the whisky furnished him, or that it was drugged^ or that the intoxication was produced by reason of anything except the unusual quantity he drank. Hence his intoxication could not have been involuntary. And it is the rule of this court, and the law generally, that the court is not required to instruct upon the defendant’s theory of the case, unless there is some competent evidence tending reasonably to substantiate such theory. Gransden v. State (on rehearing), 158 Pac. 162, not yet officially reported.

And again, as stated above, involuntary intoxication does not, as it was erroneously charged by the court in this instruction, excuse the commission of crime. But the court very clearly and properly instructed the jury that, if they found that the defendant was voluntarily drunk, and so intoxicated that he did not have power to form or entertain a premeditated design to effect the death of the deceased, at the time of the homicide, then he would not be guilty of murder, but of manslaughter in the first degree. There was no evidence that defendant had ever seen deceased before; hence the question of malice and premeditation prior to the time the act was committed did not enter into this case. And this instruction was correct. And the verdict of the jury finding the defendant guilty of manslaughter in the first degree is fully sustained by the law and the evidence.

3. The position of the defendant that he was so drunk that his intoxication produced a state of temporary insanity and therefore he was not responsible for the crime committed, is fully answered in Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031. Judge Doyle in that opinion says:

“Alcoholic insanity or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity occasioned immediately by drunkenness does not destroy responsibility for crime, where the defendant, when sane and responsible, voluntarily ’ makes himself . drunk. To constitute insanity caused by intoxication a defense to an indictment or information for murder, it must be insanity caused -by chronic alcoholism, and not a mere temporary mental condition.”

And the opinion supports this position by quotations from a dong list of authorities, which it is unnecessaiy for us to here repeat. This doctrine is almost universal, and the one to which this court is committed.

The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    MIKE R. O’HERN v. STATE.
    No. A-2195.
    Opinion Filed September 19, 1916.
    (159 Pac. 938.)
    1. BASTARDS — Presumption of Legitimacy. The presumption in law is that where the husband had access to the wife, a child born in wedlock is legitimate. And the presumption of nature is, that no able-bodied husband will sleep with a stout, buxom young wife for five months, and during all that time "waive” intercourse.
    2. ADULTERY — Indictment — Sufficiency. An information which attempts to charge adultery, but wholly fails to allege in any way that the intercourse was voluntary, is fatally defective. That ingredient in the statutory definition of adultery is not accidental, but is one of the essential ingredients whieh distinguishes that offense from other sexual crimes, and cannot be supplied by presumption or intendment, for the presumption is greater that a woman will resist illicit sexual intercourse than it is that she will voluntarily submit.

      Error from District Court, Beaver County; R. H. Eoofbourrow, Judge.

    Mike R. O’Hern was convicted of crime, and he brings error.
    Reversed.

      C. B. Leedy, of Arnett; Charles Swindall, of Woodward, and /. W. Culwell, of Beaver, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case the plaintiff in error, defendant below, was convicted of adultery, and sentenced to pay a fine of $250. The facts in this case are very remarkable, and the record, instead of lending color to a prosecution begun in good faith, and for the purpose of vindicating the law, and exalting the dignity of the home and the sanctity of the marital relation, bears the earmarks of a shameless scheme to disgrace the home, to bastardize a defenseless child, and to sacrifice all that is sacred and holy, to enhance the prospect of obtaining a few dollars. The record shows that the husband, the prosecuting witness in this case, before filing this action commenced a $10,000 damage suit against the defendant for alienating his wife’s affections. And yet this injured husband and this estranged wife were still living and cohabiting together, and conjointly swear that one of their defenseless children is a bastard, the offspring of an illicit intercourse between the defendant and the prosecuting witness’ wife. This poor child was begotten in May, 1910. The husband slept with the wife, and had access to her, not only in May, 1910, but at all other times. She was a young, buxom, 180-pound woman; he an able-bodied farm hand. Yet they swear that because of a derangement of the stomach, he scrupulously “refrained” from and “waived” intercourse from February to July, 1910, and thus attempt to fasten the stigma of illegitimacy upon their defenseless offspring. The presumption in law is that where the husband had access to his wife, the child is legitimate; and this defenseless child is entitled to the benefit of this presumption. Besides, the presumption of nature is that no man that has sufficient stomach to enable him to do the work of a farm hand will sleep with a stout buxom young wife for five months and during all that time “waive” sexual intercourse. And in the eyes of every man this child will also have the benefit of this presumption as to its legitimacy.

Besides, the husband, the prosecuting witness in this casé, seems to regard intei-course with his wife as a commodity, which created a debt in his favor, which he had a right to collect, as a butcher would an ordinary meat bill. And before beginning any action, in an attempt to collect this debt, he wrote a long letter to the defendant, which is in part as follows:

“Ivanhoe, Okla. Sept. 25-11.
“Mr. M. R. O’Hern. We received your letter a few days ago and will sa)y in reply to your threats & your witnesses you have no witness nor can you get any that is a made up lie & you know it & so do i know it. Do you think that your lies, bluffs & undermining work will pay that det that you justly owe if you do your mistaken there is only one way to settle it & that is to come up & see me & i think we can settle it all right, but if you think your bluffs will pay the det all right, but i have set my determination on this matter & shall carry it to the end & will watch for my chance to fight for my rights as long as i may live & i will see that you pay this det. * * * ”

And when he failed to collect the debt, which he assumed O’Hern owed him by reason of his alleged intercourse with his wife, he filed his $10,000 damage suit, and later filed this action.

2. There are a number of errors assigned, but it will not be necessary to consider them all. The first is lodged against the sufficiency of the information, and, we think, is well taken. The charging part of the information is that Mike R. O’Hern— “did unlawfully and feloniously commit the crime of adultery with one Jeanette Culbertson, who was then and there the lawful wife of Casner N. Culbertson, by then and there having carnal knowledge of the body of the said Jeanette Culbertson, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.’’

Section 2431, Revised Laws 1910, defines adultery as:

“The unlawful voluntary sexual intercourse of a married person, with one of the opposité sex. * * * ”

It is clear, that in this information one of the essential ingredients which distinguishes the offense sought to be charged from other sexual crimes is totally absent. There is nowhere in the information any sort of allegation that the intercourse was voluntary. That ingredient in the statutory definition of adultery is not accidental, but is one of the ingredients that essentially distinguishes this crime from that of rape. And it is as important that the pleader in charging adultery should make this distinction, and allege in some way that the intercourse was voluntary, as it is in pleading rape to allege that the intercourse was accomplished by force and violence. The mere naming the offense, adultery, or rape, does not charge the crime; but it is the facts pleaded, the acts alleged to have been done, that fixes the status of the crime, binds the state, and puts the defendant no notice as to what he may expect to meet and defend against. Suppose the pleader had said:

“Mike O’PIern did unlawfully and feloniously commit the crime of rape with one Jeanette Culbertson, who was then and there the lawful wife of Casner N. Culbertson, by then and there having carnal knowledge of the body of the said Jeanette Culbertson.”

Would it be contended for a moment that that would be sufficient to charge the offense of rape? Why not? Because the essential ingredient which distinguishes rape from other sexual crimes is absent. But if we should sanction the information in this case under it, the state would be as much at liberty to prove the intercourse was accomplished by force and violence as it would to prove it was voluntary; for in it the átate is bound by no statement which indicates in the least whether the intercourse was voluntary or accomplished by force. And the law will not permit this. The allegation that the woman is married, and the wife of a certain man, does not, of itself, show the crime to be adultery, any more than rape, for that is one way of pleading that the’ woman is not the wife of the accused, which is a necessary allegation in charging rape.

And no presumption, or intendment, can supply the defect in this information; for if we should indulge in presumptions, then the presumption that a woman will resist illicit intercourse is much greater than the presumption that she will voluntarily submit.

We are forced to the conclusion that this information is fatally defective; and the conviction had under it cannot be sustained. The judgment is therefore reversed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    TAGGART v. STATE
    No. A-2570.
    Opinion Filed September 18, 1916.
    (159 Pac. 940.)
    1. INDICTMENT AND INFORMATION — Conviction—Variance. A conviction cannot be upheld where the evidence wholly fails to establish the offense charged in the information.
    2. CONVICTION — Testimony. The law will not permit a conviction in a haphazard way. If it did, no citizen’s liberty would be seeúre; for even the most upright might become the victim of hearsay testimony.

      Error from County Court, Oklahoma County; Wm. H. Zwick, Judge.

    Jim Taggart was convicted of having possession of intoxicating liquors with intent to illegally dispose of same, and he brings error.
    Reversed.

      Reardon & Hereford, of Oklahoma, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error was prosecuted and convicted of having possession of intoxicating liquors with intent to illegally dispose of same.

The state confesses error on the ground that the verdict and judgment is not supported by the evidence; and we have carefully read the evidence, and are forced to the same conclusion. Had the state elected to prosecute plaintiff in error for illegally transporting and conveying the beer found in his buggy, the record before us would sustain a conviction, but there is a total failure to prove that he intended to sejl or otherwise furnish it to others. There was considerable evidence concerning a fishing camp out on the river which bore the earmarks of a “booze joint,” but there was no evidence admitted which connected the plaintiff in error with this camp. There was some incompetent, hearsay evidence tendered, which was properly ruled out by the court, which tended to connect him with this camp; and this tendered evidence doubtless left its impress upon the jury, and resulted in the verdict returned. The plaintiff in error may be guilty of the offense charged, but the law will not permit a conviction in a haphazard way. If it did, no citizen’s liberty would be secure; for even the most upright might become the victim of hearsay testimony.

The judgment is reversed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    J. E. MARTIN v. STATE.
    No. A-2522.
    Opinion Filed June 10, 1916.
    Rehearing Denied September 20, 1916.
    (159 Pac. 940.)
    1. EVIDENCE — Testimony of Accomplice — Necessity, of Corroboration. One cannot be convicted upon the uncorroborated testimony of an accomplice; but the testimony of the accomplice must be corroborated by such evidence as in itself, and without the aid of the testimony of the accomplice, tends to in some degree connect ■ the defendant with the commission of the offense. The corroborating evidence in this case examined, and held to be sufficient.
    2. LARCENY — Elements of Offense — Acts of Confederates. Where the evidence discloses a course of conduct between the appellant and his codefendants which justifies the conclusion that they were confederates in a plan by which the codefendants were to steal cattle, and the appellant conceal and market same, the appellant may properly be prosecuted for the larceny of the animals; and the contention that he should have ’been prosecuted for receiving stolen property, instead of larceny, is not well taken.

      Appeal from District Court, McCurtain Cotmty; C. B- Dudley> Judge.

    J. E. Martin was convicted of larceny of a domestic animal, and appeals.
    Affirmed.

      Jeff D. McLendon, of Idabel, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

This appeal is from a judgment in the district court of McCurtain county. J. E. Martin, the defendant in that court and appellant here, was tried for the larceny of a cow, and was convicted and sentenced to two years in the penitentiary. The information charged the defendant, Martin, jointly with Ollie Wright, Benson Maytubbe, and Alvin Nelson, with the theft of the cow. Martin was granted a severance, and placed upon trial alone.

The state used Benson Maytubbe as a witness against Martin, and one of the complaints of appellant in this court is that he was convicted upon the uncorroborated testimony of Maytubbe, an alleged accomplice. Maytubbe testified that he and Wright took the cow to appellant’s home, reaching there about 11 o’clock at night; that they awoke him, and, after some conversation between the appellant and Wright, the three roped the cow, changed the brands on her, altered the earmarks, and dehorned her by the light of a lantern; that appellant gave Wright $20 for the .cow, and he got a quart of whisky for assisting Wright in delivering her to the appellant. The appellant as a witness in his own behalf disputed this testimony; hut the horns of this cow, which seem to have been of a rather unusual character, were found near the spot where Maytubbe says she was dehorned, while the blood was still fresh upon them, and later were positively identified. A neighbor, a few days after this offered appellant $40 for the cow; but he declined to sell her to him solely upon the ground that he lived in too public a place. Members of Maytubbe’s family testified that he and Wright left their house after dark with the cow, and did not return until next morning. The earmarks had been altered and the brand changed from “G. K.” to “O. B.” There were also other corroborating circumstances; and the corroborating testimony, all taken together, furnished sufficient evidence, if believed by the jury, to justify a conviction without the testimony of Maytubbe.

2. The appellant complains that, if the evidence proved any offense at all, it was that of receiving stolen property rather than larceny; and, also, that on this account the instructions given by the court were erroneous.

If this was the only transaction in which these parties had been connected, there might be more force in this contention; but there was evidence, properly admitted, of other and similar transactions between these parties, which.taken as a whole justified the conclusion that the codefendants of appellant were confederates of his in a plan to steal cattle and deliver them to him at one-half their market value, and he to rebrand, dehorn, and conceal until they could be disposed of for their real worth, and thus reap to himself the benefit of the alliance. And under this state of the record it was not error for the court to give the instructions complained of, which were to the effect that if the jury believed beyond a reasonable doubt that Benson May-tubbe, Ollie Wright, and Alvin Nelson, or either of them, did steal the cow of George Kirk, with intent to deprive the owner thereof, and that the defendant, J. E. Martin, was concerned in the taking of the said cow, or aided or abetted in the taking of said cow, though not present, it would be their duty to find the defendant guilty.

There appearing no errors prejudicial to the substantial rights of the appellant, the judgment of the lower court is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    SMITH et al. v. STATE ex rel. GALLAHER, Co. Atty.
    No. A-2010.
    Opinion Filed September 18, 1916.
    (159 Pac. 941.)
    1. CONTEMPT — Intoxicating Liquors — Abatement of Nuisances— Punishment for Contempt — Jurisdiction, (a) District courts have jurisdiction of injunction proceedings to abate as a nuisance places where persons congregate and resort for the purpose of drinking intoxicating liquor.
    (b) The court alone in which a contempt is commit! cd, or whose order or authority is defied, has power to punish it, or entertain proceedings to that end. Courts which have no criminal jurisdiction can punish for so-called criminal contempt, because the power to do so is inherent, and necessary to the efficiency and very existence of the court.
    2. INJUNCTION — Temporary Injunction — Nature of. There is a wide distinction between a temporary injunction and a temporary restraining order. The former embodies a restraint which continues, unless modified by the court, until the hearing of the cause, and then it is either made permanent or discharged altogether; while the. latter, strictly speaking, is not an injunction at all, but an order of the court, to compel parties to maintain the matters in controversy in statu quo, until the question of whether or not a temporary injunction ought to issue may be determined.
    3. FINES — Imprisonment—Credit on Fine. Where an offense was committed before section 1, e. 112, Sess. Laws 1913, went into effect, a defendant is allowed credit on his fine, if laid out in jail, as provided by the Revised Laws 1910.
    4. WITNESSES — Examination of Witnesses — Conduct of Counsel— Rebuke. There is no rule or reason why a trial judge should not ask a proper and pertinent question, for the purpose of eliciting competent and material testimony; yet it is improper for him to assume the role of prosecutor, and persistently examine and cross-examine witnesses. No matter what his motives may be, or what explanation or excuse he may offer for this course, it can have but one effect upon the jury; and that is to place the judge in a hostile attitude toward the defendant, and discredit any defense he might offer. No trial judge has a right to indicate to the jury, by word or action, his opinion as to the merits of a case being tried, or as to the credibility of any witness examined.
    If the conduct of counsel for defendant is improper, the court must excuse the jury before administering a rebuke or threatening to fine or imprison him for contempt.

      Error from District Court, Wagoner County; R. C. Allen, Judge.

    Proceeding by the State of Oklahoma, on the relation of Edward M. Gallaher, County Attorney of Wagoner County, against W. C. Smith and C. W. Norman, to abate'a nuisance. Defendants were convicted of contempt, and they bring error.
    Reversed.

      Watts & Watts and Edward M. Gallaher, all of Wagoner, for plaintiffs in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   BRETT, J.

On August 14, 1911, Edward M. Gallaher, who was then county attorney of Wagoner county, filed a petition on behalf of the state in the district court of Wagoner county, alleging that a certain building in the city of Wagoner known as the City Drug Store, and located on certain lots described in the petition, was owned jointly by one J. M. Livingston and T. A. Parkinson, and that one J. E. Studyvin and Frank Bárnes were occupying and operating a drttg store in said building, and that in this building intoxicating liquors were being kept and sold, and divers persons congregated and resorted there for the purpose of buying and drinking such intoxicating liquors, and asked that a temporary injunction be granted enjoining each and all of said defendants, their agents, successors, and. assigns, and all other persons, from illegally handling intoxicating liquors, on said premises, and that upon final hearing said place be adjudged a public nuisance, and be perpetually abated. Summons was duly issued, and on the 14th day of August, 1911, a temporary injunction was granted enjoining the defendants, their agents, servants, employes, successors, or assigns, and each of them, and all other persons, from keeping, selling, or permitting to be sold any intoxicating liquor upon said premises, etc. This order was served upon each of the defendants on the 15th day of August, 1911, by the sheriff delivering to each of them a copy of the order.

The matter then seems to have remained in statu quo until the 24th day of March, 1913, when C. E. Castle, who had succeeded Gallaher as county attorney, filed an affidavit reciting the terms of the temporary injunction, and alleging that W. C. Smith, who succeeded the former occupants of the building, had violated the terms of the injunction, and praying that he be adjudged guilty of contempt. An attachment for contempt was issued, and Smith brought before the court to answer the charge of contempt in violating said injunction. And on April 17th, and while the contempt proceedings were still pending, the county attorney filed a supplemental affidavit charging that W. C. Smith and C. W. Norman entered said premises with full knowledge of the existence of this injunction and its terms, and that they, and each of them, willfully and contumaciously refused to respect and obey said injunction, and charged in detail the dates upon which and the persons to whom defendants had sold intoxicating liquors in violation of said injunction, and asked that they be required to show cause why they should not be punished for contempt on account of the violation of said injunction. An order to show cause was then duly and properly issued.

The defendants demurred to the supplemental affidavit, which was overruled. Thereupon they filed an affidavit denying the allegations of the supplemental affidavit of the county attorney, and on the same day filed a response to the order to show cause.

On April 22, 1913, the matter came on for hearing, and was tried to a jury, which returned a verdict finding each of the defendants guilty of contempt.

A motion for new trial was heard, and overruled, and the court fixed the penalty of each of the defendants at a fine of $300 and six months in the county jail. And to reverse this judgment an appeal has been perfected to this court. There are numerous assignments of error urged, all of which it will not be necessary for us to consider.

1. The first assignment is that the district court had no jurisdiction of the subject-matter of the action: (1) Because the district court was without authority to enjoin the sale of intoxicating liquors; and (2) because the penalty fixed by the statute for this class of contempt, reduces the offense to that of a misdemeanor, and the county court has exclusive jurisdiction of misdemeanors.

(a) Both contentions urged under this assignment are without merit. The authority of the Legislature of this state extends to all rightful subjects of' legislation; and it is clearly within the province of the Legislature to declare certain things to be a public nuisance, and to provide a remedy for the abatement of .the same. And the provisions of the statute which declare all places where persons congregate or resort for the purpose of drinking intoxicating liquors to be a public nuisance, and that such places may be abated by injunction, is within the authority granted the Legislature by the Constitution of the state, and the district courts or judges thereof have jurisdiction to hear and determine such actions.

(b) And in Nichols v. State, 8 Okla. Cr. 550, 129 Pac. 673, this court passed squarely upon the second contention urged under this assignment, and held that the contention is without merit. To hold that a court must look to an inferior tribunal to enforce its orders and decrees would be ridiculous. As is stated in Nichols v. State, supra:

“The power to fine and imprison* for contempt is a necessary attribute of a court. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power to enforce its orders, judgments, or decrees would be a disgrace to the laws which created it. Such a .condition could but result in the degradation of courts, and to make them truly subjects of contempt.”

No court could exist, or, if existing, would be a curse rather than a blessing, if stripped of the power to enforce its. orders, judgments, and decrees. Hence it is the universal rule that even courts of chancery and other courts which have no criminal jurisdiction can punish for so-called criminal contempt, because the potver to do so is inherent, arid necessary to the efficiency and very existence of the court. And as stated in Rapalje on Contempt, par. 13:

“It is a well-settled rule that that court alone in which a contempt is committed, or whose order or authority is defied, has power to punish it, or to entertain proceedings to that end. * * * The highest court of a state will not punish a contempt offered to the processes or authority of an inferior tribunal.”

And with much less reason could it be urged that the highest court of original jurisdiction in the state must look to an inferior tribunal to enforce its orders and decrees.

2. It is also contended that the injunction the defendants are alleged to have violated was a temporary restraining order, and when no hearing was had upon it, on September 14, 1911, the date fixed in the summons as answer day, it spent its force, and was therefore a nullity at the time the defendants are alleged to have violated its terms. But this contention is not borne out by the record. This, as is shown by the record, is not a temporary restraining order, but a temporary injunction. And Ex parte Grimes et al., 1 Okla. Cr. 102, 94 Pac. 668, cited and relied upon by the defendants, does not support their contention. In that opinion the court makes the distinction between a temporary injunction and a temporary restraining order, saying:

“The former embodies a restraint which continues, unless modified by the court, until the hearing of the cause, and then it is made either permanent or discharged altogether; while the latter, strictly speaking, is not an injunction at all, but a writ of the court to compel parties to maintain the matters in controversy in statu quo until the question of whether or not a temporary. injunction ought to issue may be determined.”

This distinction is clear and sound, and is a complete answer to the contention of the defendants. This was a temporary injunction, and consequently remained iii force until a hearing should be had for the purpose of making it perpetual, or discharging it altogether. And the defendants had a right to insist upon a speedy hearing, if they felt the injunction should be dissolved.

3. There is also an assignment to the effect that the judgment imprisoned the defendants, in case of a failure to pay the fine, until both fine and costs are paid as provided in section 1, c. 112, Session Laws 1913, and that this law did not become operative until a few days after the offense is alleged to have been committed; and therefore the penalty could not, be assessed under its provisions. This judgment, however, does not include the costs in the sentence of imprisonment in case of failure to pay fine, but does allow only $1 per day in case the $300 fine is laid out in jail. This is error, since the offense is alleged to have been committed prior to the date the 1913 law became operative, and the defendants should have been sentenced under the statutes in force at the time the offense was committed, which allowed $2 on the fine for each day of imprisonment, and $1 additional for each day the defendants performed labor. Ex parte Harry, 6 Okla. Cr. 168, 117 Pac. 726; Turner et al. v. State, 8 Okla. Cr. 11, 126 Pac. 452.

4. Another matter complained of is the conduct of the court during the trial of this cause.

(a) It appears from the record that the judge, over the objections of counsel for defendants, persisted in rigidly examining and cross-examining the witnesses placed upon the stand, and at one time delivered to the jury a lengthy statement as to the position he occupied in the trial of that case, and at another time severely rebuked counsel for defendants in the presence of the jury, threatening to summarily punish him for contempt; and at the close of the examination of a witness that the court had taken from the county attorney and examined himself he remarked: “I think that is all this witness knows.” All this was highly improper.

We know of no rule or reason why a court 'should not ask a proper and pertinent question, for the purpose of eliciting competent and material testimony. But we also know of no rule that would permit the court to assume the role of prosecutor. And when the court takes the place of the county attorney, and examines and cross-examines witnesses, no matter what his motives may be, or what explanation or excuse he may offer for this course, his conduct can have but one effect upon the jury, and that is to impress them that the judge is convinced of the defendant's guilt. In the minds of the jurors, it places the judge in a hostile attitude towards the defendant, and discredits any defense that he might offer. No judge has a right to indicate to the jury, by word or action, his opinion of the merits of any case being tried before him, or to in any way indicate his opinion as to the credibility of any witness examined. Absolute fairness should characterize every word and action of a judge. Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236, and cases therein cited.

(b) Besides, to reprimand counsel for a defendant, in the presence of a jury, is highly prejudicial. If counsel's conduct is improper, the court must excuse the jury before administering a rebuke, or threatening to fine or imprison him for contempt.

There are other assignments, but, as the case must be reversed by reason of the conduct of the judge, we deem it unnecessary to pursue the matter further.

The judgment is reversed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: PER CURIAM.

text:
    SHERMAN MOCABEE v. STATE.
    No. A-2573.
    Opinion Filed September 20, 1916.
    (159 Pac. 944.)
    .INTOXICATING- LIQUORS — Offenses—Evidence—Sufficiency.- Evidence reviewed in a prosecution for unlawfully conveying intoxicating liquor, and held sufficient to sustain the verdict and judgment of conviction.

      Appeal from County Court, Canadian County; R. B. Forrest, Judge.

    Sherman Mocabee was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      J. N. Roberson, of El Reno, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Sherman Mocabee, Amos Clark,-and J. Turner were jointly charged with having unlawfully transported intoxicating liquor from one place in Canadian county to another place in said county, and upon their trial were found guilty, and the punishment of each defendant assessed at $100 fine and 60 days’ confinement in the county jail. The plaintiff in error, Sherman Mocabee, alone appeals.

The proof on the part of the prosecution is that the three defendants, while driving along one of the streets of El Reno in a spring wagon loaded with a barrel of beer and two cases of whisky, were arrested by the sheriff; that the defendant Mocabee was in charge of and driving the team, and he said to the officer, “We haven’t delivered it yet,” and also stated that “the barrel of beer was his.” As a witness in his own behalf he testified that he borrowed the team to haul the beer and whisky for his codefendants from the express office for them, and denied any ownership therein. His codefendants testified that they owned the beer and whisky, and that it was a lawful purchase, and was shipped to them from Fort Worth, Texas.

The only question presented by this appeal is the sufficiency of the evidence to support the verdict.

After a careful examination of the evidence in this case, we are not prepared to say that the jury were not warranted in finding the defendants guilty. The credibility of the witnesses and the weight and value to be given their testimony is a question solely for the jury’s determination, and to reverse a judgment on the ground that the verdict is contrary to law and the evidence, this court must find, as a matter of law, that the evidence is insufficient to warrant the conviction.

The instructions fully and fairly presented the law of the .case, and we are unable to find any error in the record. It follows that the judgment must be, and the same is hereby, affirmed.


text:
    BILL KINDMAN v. STATE.
    No. A-2644.
    Opinion Filed September 23, 1916.
    (159 Pac. 944.)
    APPEAL — Abandonment. Where accused, who appealed from a conviction of violating the prohibitory law, filed no brief and made no appearance on appeal, and it appeared that the appeal was abandoned, it will be dismissed.

      Appeal from County Court, Kiowa County; J. B. Carpenter, Judge.

    Bill Kindman was convicted of violating the prohibitory law, and he appeals.
    Appeal dismissed.

      Smith, Jones & Smith, of Hobart, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information charging that he did permit gambling in a certain house in the town of Mountain View in Kiowa county, the plaintiff in error, Bill Kindman was convicted, and by the judgment of the court he was sentenced to be confined in the county jail for a period of 30 days. From the judgment he appeals.

No brief has been filed, and when the case was called for final submission no appearance was made on behalf of plaintiff in error, whereupon the Attorney General moved that the appeal be dismissed as having been abandoned. It appears that the appeal in this case has been abandoned, and for this reason the motion to dismiss is sustained, the appeal herein dismissed, and the cause remanded to the trial court. Mandate forthwith.


author: ARMSTRONG, J.

text:
    H. B. RHOADS v. STATE.
    No A-2572.
    Opinion Filed September 23, 1916.
    (159 Pac. 945.)
    1. INTOXICATING LIQUORS — Offenses — Prosecution — Evidence. Proof of possession of intoxicating liquors of any kind at a place where intoxicating liquors of the same or any other kind are kept and sold by the person owning or keeping the plaee is, in the , absence of a reasonable explanation, sufficient to support a judgment of conviction.
    2. INTOXICATING LIQUORS. — Offenses — Evidence — Sufficiency. Proof of possession of large quantities of intoxicating liquors and that the person in possession thereof has paid the tax required by the United States government of retail liquor dealers is sufficient, in the absence of any reasonable explanation, to support a conviction.

      Appeal from County Court, Canadian County. R. B. Forrest, Judge.

    H. B. Rhoads was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      J. N. Roberson, of El Reno, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiff in error, H. B. Rhoads, was convicted at the August, 1915, term of the county court of Canadian county on a charge of having unlawful possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of $400 and imprisonment in the county jail for a peroid of six months.

(1) The information charges that plaintiff in error had possession of beer on or about the 15th day of April, 1915, with intent to sell the same. It appears that deputy sheriffs searched the residence of plaintiff in error under a search and seizure warrant, and found 52 bottles of beer beneath a trapdoor in the floor. The liquor was discovered by removing the carpet or rug, and then raising the trapdoor. Beneath this trapdoor the beer was found. Three officers who searched the premises testified to these facts. It is also shown that intoxicating liquors had been frequently sold on the premises, and that the plaintiff' in error had paid the special revenue tax to the federal government and acquired a retail liquor dealer’s license covering the year in which this beer was found. On previous occasions the officers had found as much as two barrels of whisky.in the possession of the plaintiff in error, and at other times, had found beer. It appears that the place was never raided without intoxicating liquor of some character being found on the premises. The plaintiff in error neither denies the possession of the beer nor the payment of the internal revenue tax. Nor does he deny the fact that his place was one where intoxicating liquors were kept and sold. The state's case was overwhelmingly made out; in fact, there was no denial of the same on the part of any one. The verdict of the jury was therefore a proper one, and the judgment of the count correct.

Counsel argue that, since the plaintiff in error was charged with the sale of beer, the court should not have permitted proof tending to show that plaintiff in error was a frequent seller of other intoxicating liquor of different kinds. This evidence was properly admitted. Possession of intoxicating liquors of any kind at a place where intoxicating liquors of the same or any other kind are sold, in the absence of any reasonable explanation, will sustain a judgment of conviction.

(2) Besides, in this case the plaintiff in error apparently was engaged in the saloon business, having provided himself with overwhelming quantities of intoxicating liquors and a government retail liquor dealer’s license. The appeal is without merit.

The judgment of the trial court is affirmed.

DOYLE, P. J., and BRETT, J„ concur.


text:
    HICKMAN WILLIS v. STATE.
    No. A-2425.
    Opinion Filed September 23, 1916.
    (159 Pac. 1014.)
    HOMICIDE — Appeal—Reversal. A person who is convicted of manslaughter cannot secure a reversal in this court, in the absence of errors of law, when the proof shows that the jury should have found a verdict for murder.

      Appeal from the District Court of Carter County. A. Bddleman, Judge.

    Hickman Willis was convicted of manslaughter, and appeals.
    Affirmed.
    Brozm, Brozan & Brozan, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, Hickman Willis, was convicted of manslaughter in the first degree at the September, 1914, term of the district court of Carter county, and his punishment fixed at confinement for twenty-five years in the state penitentiary. It appears that Hickman Willis, the plaintiff in error, and the deceased, Rena Davis, were full blooded Choctaws, belonging to the class commonly designated Mississippi Choctaws. They lived in the same community in Carter county and something like three quarters of a mile apart. Rena Davis was more than seventy years of age. Hickman Willis was a comparatively young man. The killing occurred on the 12th of August, 1914. Upon this date, Hickman Willis and other Choctaws were in Ardmore where they secured whisky. Willis, it is contended, became intoxicated before leaving Ardmore, and drank some on the way home after leaving the city. Arriving home, he assisted in unharnessing the team and putting away certain paraphernalia which had been used on a hunting trip. One or two other Choctaws, among them Robert Lee, were with him. When the team was unharnessed, Lee, who, it appears, lived with Rena Davis, left the home of Willis going in the direction of his own home. Before going a great ways he and a companion discovered that Willis and following them with a shotgun. They hastened their steps in order to avoid him. Soon after arriving home, Willis appeared on the scene and began shooting into the house, wounding a number of the inmates — some three or four, and killing Rena Davis. All of the able-bodied persons in the house at the time, who were not seriously wounded, escaped and left the premises. Willis was found in his own home about midnight by the sheriff of the county, and arrested. He denied any knowledge of the killing, his plea being based upon the contention that he was insanely drunk, and remembered nothing whatever about the affair. Proof was also offered to the effect that Willis had received a severe injury to the head several years before, and a part of the frontal bone had been removed; that on account of this injury the intoxicating drinks affected him to the extent of dethroning his reason. The court permitted all the proof offered by the plaintiff in error along these lines, and submitted the same to the jury fairly and with much consideration for the rights of the plaintiff in error. We have read the record fully, and have given careful consideration to the written argument of counsel. There is no error disclosed prejudicial to the rights of the plaintiff in error. In fact, the only error disclosed is error committed in his favor. The homicide was a most brutal murder committed by a drunken full blood whose victim was a law abiding, harmless, old full blood woman. There is not an extenuating circumstance or fact in evidence. There was absolutely no defense disclosed under the testimony. The jury before whom the case was tried, evidently extended clemency to the accused on account of his intoxicated condition. A conviction for murder would have been proper in this case. The plaintiff in error and his counsel are to be. congratulated that they secured from the jury a verdict of manslaughter rather than of murder, for the facts disclosed would have fully supported a conviction for the higher offense.

No prejudicial error appearing, the judgment of the trial court is affirmed.

DOYLE, P. J., and BRETT, J., concur.


text:
    A. O. CORLISS v. STATE.
    No. A-2439.
    Opinion Filed September 23, 1916.
    (159 Pac. 1015.)
    1. WITNESS — Trial—Examination of Witnesses. Counsel have no right under the law in this jurisdiction to inquire of a witness whether or not he has been arrested upon. a criminal charge. A witness can only be asked for the purpose of affecting his credibility jf he has been convicted of crime.
    (b) A county attorney has no right to ask the defendant at bar if he has not been arrested' on similar charges to the one upon which he is on trial. An examination of this character is prejudicial, and wheye permitted by the court, is reversible error.
    2. TRIAL — Report of Case, (a) It is the duty of the trial court to require the court reporter to take down all of the proceedings of every character from the beginning to the close of a criminal trial when a request therefor is made by counsel.
    (b) The failure or refusal upon the part of the trial court to require the reporter to take all or any part of the proceedings when requested by counsel for the accused, a judgment of conviction will be followed by reversal upon appeal.

      (c) It is only necessary for the proceedings to disclose the fact that counsel for the defendant made such request and that the court failed or refused to comply therewith.
    (d) When any controversy arises as to the demand by counsel for the defendant at bar that the proceedings be taken down by the reporter, the fact of such demand, and the failure or refusal of the court to comply therewith can be shown by affidavit of persons present who know the facts.
    3. TRIAL — Conduct of State’s Counsel. It is the duty of counsel for the state to introduce the testimony available to establish the charge against the defendant at the bar in the hearing in chief. The court should not permit a rehash of such testimony under the guise of rebuttal. Counsel for the state have no more right to reserve the principal testimony and introduce it under the guise of rebuttal, nor-to rehash testimony introduced in chief under the guise of rebuttal than the accused would have to re-iutroduee his testimony after the state has closed the rebuttal. In a strict sense, only such testimony which goes to contradict or rebut something proved by the defendant is entitled to be introduced in rebuttal. The discretion of the trial courts allowed by the law in this jurisdiction in this respect should always be exercised with these rules of fairness in view.

      Appeal from the District Court of Payne County. A. H. Houston, Judge.

    A. O. Corliss was convicted of felony, and appeals.
    Reversed.

      J. M. Springer, for the plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

Plaintiff, in error, A. O. Corliss was convicted at the October, 1914, term of the district court of Payne county, upon a charge of maintaining a place where intoxicating liquors were kept and sold, and his punishment fixed at a fine of Two Hundred Fifty Dollars and imprisonment in the State Penitentiary for the term of one year and one day. From this judgment of conviction, plaintiff in error has duly prosecuted an appeal to this court.

The propositions preserved for review have been heretofore determined by this court.

The first assignment of error is based upon the failure of the court to exclude incompetent and irrelevant testimony. This assignment covers several different phases of the testimony, among others, the proposition that the court permitted the county attorney to ask the plaintiff in error if he had not been arrested upon similar charges for conducting the same place as charged in the information. This the county attorney had no right to do, and this court has repeatedly so held. A discussion of the principle is not again required for the reason that the doctrine is too well established to be misunderstood. A witness can only be asked if he has been convicted of crime.

Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699.

White v. State, 4 Okla. Cr. 143, 111 Pac. 1010.
Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244.

The second assignment of error is based upon the proposition that the court erred in refusing to require the reporter to take in shorthand and transcribe as a part of the record the argument of the county attorney, after due and proper demand had been made therefor by the attorney for the plaintiff in error. The court, it appears, had excused the reporter, and he was not in the court room, and therefore .denied the request of the plaintiff in error to have the argument of the county attorney taken. The fact that the court reporter was out of the room is no fault of the plaintiff in error. We have repeatedly held, and that too in important cases, that controversies of this kind cannot be incorporated into the record by affidavits. Where the court refuses or fails to require the stenographer to take any part of the proceedings upon the defendant's request, then the fact of such refusal can be shown by affidavits. See 4 Okla. Cr. 641, Lamm et al. v. State. When questions of this kind arise, and the reporter is not available to record the proceedings as provided by law and uniformly followed by this court, it is the duty of the trial court to grant a new trial. Upon his failure to do so, this court will reverse the judgment regardless of the merits of that portion of the record thus omitted. In fact, it is the duty of this court, regardless of the materiality of the proposition, to reverse the judgment and award a new trial. The question of whether or not the particular controversy was material to the issues is not important here. The court reporters are paid to take the proceedings in the trial court, and when a demand is made for the same, it is only necessary for the record to show that this demand was made and not complied with by the court. A reversal follows as a matter of right. But1 when counsel for the defendant requests the trial court to have the stenographer take down in shorthand any statement made by the prosecuting attorney during his argument to be made a part of the record on appeal, and the court refuses or fails to comply with this request, then the fact of his request and the court’s refusal may be shown by affidavit or other. competent evidence, and thus the refusal upon the part of the court so shown constitutes grounds for reversal without regards to the merits of the case.

Section 1786 R. L. provides “an attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer, or when his presence is required by such attoney, shall be taken and transcribed or, when requested to require-any statement to be taken down by the stenographer, a refusal of the court to permit any statement to be taken down by the stenographer, or transcribed after being taken down upon tlie same being shown by affiidavit or other competent evidence, to the Supreme Court will be deemed prejudicial error without regards to the merits thereof.” The statute applies with equal force to proceedings in this court. So it is seen that'the doctrine is settled both by acts of the legislature and decisions of this court.

The third assignment of error is based upon the contention that the court erred in permitting the county attorney to rehash the state’s testimony after the defense had closed, under guise of rebuttal. The order of introducing testimony and the character of rebuttal permitted by the court is largely discretionary. It is, however, most unfair to permit a complete rehash of .the testimony introduced in chief. The defendant would be justly entitled to introduce his testimony if such practice is permitted. In any trial, many of the authorities hold that only new testimony contradicting or rebutting something proved by the defendant is entitled to be introduced in rebuttal. We are unable to see that this rule is either unfair or unjust to the State, and although the matter is largely discretionary, the trial courts are warned that an abuse of same or apparent disregard of the rights of a defendant, would warrant reversal. Fairness and- equal recognition to the parties is essential.

Constitutional questions usually raised in this\dass of cases are not raised in the case at bar. The court is therefore not to be considered as committed to any particular view iii these questions.

For the errors indicated the judgment is reversed, and the cause remanded for a new trial.

DOYLE, P. J., and BRETT, ]., concur.


text:
    GEORGE BUTLER v. STATE.
    No. A-2623.
    Opinion Filed September 30, 1916.
    (159 Pac. 1090.)
    INTOXICATING LIQUORS — Offenses. Under section 6, c. 26, Session Laws 1913, declaring that the keeping in excess of a certain amount of intoxicating liquors ‘ ‘ shall be ‘ prima facie evidence ’ of an intention to convey, sell, or otherwise dispose of such liquors, ’ ’ it is error to charge that "the keeping in excess of one gallon of spirituous' liquor, constitutes prima facie evidence of intent to convey, sell or otherwise dispose of such liquor, and places upon the defendant the burden of raising a reasonable doubt of his guilty intent to so convey, sell or dispose of such liquor,” since the statute only means to make such evidence competent and sufficient to establish the unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof. Whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions is considered, is for the determination of the jury.

      Hal Johnson, Judge. Appeal from the County Court of Pottawatomie County.

      George Butler, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      Mark Goode, for plaintiff in error.
    S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen. for the State.
   PER CURIAM.

On information charging that he did have in his possession two gallons of whisky and eighty bottles of beer with the unlawful intent to sell the same, George Butler, was convicted in the county court of Pottawatomie county and his punishment fixed at a fine of Four Hundred and Ninety-Three Dollars and Thirty Cents, and confinement in the county jail for the term of four months. From the judgment rendered on the verdict he appealed by filing in this court on January 5, 1916, a petition in error with case-made.

The evidence shows that in serving a search warrant against the place where the defendant Butler lived with his family in the negro part of the city of Shawnee, the sheriff and his deputies found there intoxicating liquors as charged in the information.

The defendant as a witness in his own behalf testified that he had resided in Shawnee with his family for seventeen years, and that the liquor seized was for his own personal use and the use of his wife; that he did not intend to sell, barter, give away or otherwise furnish said liquor.

Of the numerous assignments of error it is only nécessary to consider the one that the court erred in instructing the jury.

It appears that the court gave the following instruction:

“You are instructed that under the law of this State, the keeping in excess of one gallon of spirituous liquor, constitutes prima facie evidence of intent to convey, sell or otherwise dispose of such liquor, and places upon the defendant the burden of raising a reasonable doubt of his guilty intent to- so convey, sell or dispose of such liquor. Given and excepted to by defendant. Hal Johnson, County Judge.”

The Attorney General has filed a confession of error, based upon the giving of this instruction and citing the cases of Havill v. State, 11 Okla. Cr. 483, 148 Pac. 683; Caffee v. State, 11 Okla. Cr. 485, 148 Pac. 680; Wilson v. State, 11 Okla. Cr. 510, 148 Pac. 823; Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071.

We think the confession of error is well taken and should be sustained The term “Prima Facie Evidence,” as used in the statute is such evidence as, in the judgment of the law, is sufficient to establish the fact, if it be credited by the jury, and evidence of such possession -is sufficient to establish the unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proo'f. Whether or not such evidence is sufficient to overcome the presumption of innocence of the defendant and to establish his guilt beyond a reasonable doubt, when all the evidence including the presumptions is considered is for the determination of the jury. For the reasons stated, we are of the opinion that the instruction complained of is erroneous and prejudicial. It follows that the judgment should be and the same is hereoy reversed and a new trial granted.


text:
    LEO NICHOLS v. STATE.
    No. A-2625.
    Opinion Filed September 30, 1916.
    (159 Pac. 1091.)
    INTOXICATING- LIQUORS — Offenses — -Evidence—Sufficiency. In a prosecution for having possession of intoxicating liquors with intent to sell same, evidence held sufficient to sustain a conviction.

      Appeal from the County Court of Pottaivatomie County. Hal Johnson, Judge.

    Leo Nichols, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Mark Goode, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Leo Nichols, was convicted in the county court of Pottawatomie county on a charge that he did have possession of intoxicating liquors, to-wit., whisky with intent to sell the same and his punishment assessed at confinement in the county jail for sixty days and a fine of Two Hundred and Eifty Dollars.

From the judgment and sentence entered on the verdict, he appealed by filing in this court on January 6, 1916, a petition in error with case-made.

The evidence shows that Gus Mitchell, deputy sheriff and two or three other deputies in serving a search warrant against the Old Herald Building in ithe city of Shawnee, found the defendant there in possession of certain intoxicating liquors,, which he attempted to destroy in the presence of the officers. No* evidence was offered on behalf of the defendant.

From a careful examination of the record, it appears that this appeal is -wholly destitute of merit. The evidence of guilt is conclusive, and no material error is apparent. The judgment and sentence appealed from is therefore affirmed.