text:
    STATE v. W. J. BARNETT.
    Nos. A-8949, A-8950.
    Nov. 12, 1936.
    Rehearing Denied Dec. 31, 1936.
    (69 Pac. [2d] 77.)

      Mac Q. Williamson, Atty. Gen., Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., for the State.
    J. D. Lydick, Sid White, A. L. Beckett, and Curtis P. Harris, for defendant in error.
   DOYLE, J.

(after stating the facts as above). In these cases the state appeals from judgments in favor of the defendant entered upon orders sustaining motions identical in each case, to quash and set aside the indictments. The court rendering judgment in each case sustaining the motions ordered that the defendant, W. J. Barnett, be not discharged pending the appeals and the determination of the same by this court.

Procedure Criminal, section 3191 (22 Okla. St. Ann. § 1053), provides:

“Appeals to the Criminal Court of Appeals may he taken by the state in the following cases and no other:
“First. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“Second. Upon an order of the court arresting the judgment.
“Third. Upon a question reserved by the state.”

The grounds upon which an indictment may be set aside upon the motion of a defendant are clearly defined in Procedure Criminal. .Section 2937 (22 Okla. St. Ann. § 493).

They are as follows:

“The indictment or information must be set aside by the conrt in which the defendant is arraigned, and upon his motion in any of the following cases:
“First. When it is not found, indorsed, presented or filed, as prescribed by the stantes or when the grand jury is not drawn and impaneled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the canse: Provided, that the defendant shall be conclusively presumed to' know matters of record.
“Second. When the names of the witnesses examined, before the grand jury are not made to' appear on some part of the indictment, as provided in this chapter.
“Third. When a person is permitted to' be present during the session of a grand jury while the vote on the finding of the indictment is being taken, or when it is shown that after the grand jury was first impaneled any member or members thereof, were discharged and their places filled by persons, not regularly drawn from the jury list, as provided by law, and that they were admitted into the grand jury or took part in their deliberations, or that the grand jury was not impaneled anew as a whole body in open court.”

Before a defendant in a, criminal action is entitled to be heard on a motion to set aside an indictment, he must bring himself clearly within the provisions of the Code of Criminal Procedure. Section 2937, Stat. 1931; Daggs v. State, 12 Okla. Cr. 289, 155 Pac. 489 (22 Okla. St. Ann. § 493).

The motion to quash in each case avers:

“That said instrument in writing SO' returned or presented is not ‘an accusation in writing, presented by a grand jury to a competent court charging a person with a public offense’ in that it fails wholly to charge defendant with any crime or public offense defined, denounced by or known to the laws of the State of Oklahoma.”

Obviously, the motion in each case did not conform to the requirements of the statute above quoted.

Under our Procedure Criminal, the motion to quash and set aside an indictment takes the place of the plea in abatement at common law, .a plea the subject-matter of which may be any objection which could not be properly interposed by a plea in bar.

Any plea setting up absence of jurisdiction of the court is a plea to the jurisdiction.

The purpose of a plea, no matter what nomenclature is used, is to make an issue. In the cases at bar the motions in substance were to' dismiss because the statute being unconstitutional, the court had no jurisdiction to consider the same. However, we prefer to lay aside all technical objections to the pleas interposed and meet the arguments which have been presented to sustain the judgments.

A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some provision of the Federal or State Constitution.

Section 1 of article 14 of the Constitution provides:

“General laws shall be enacted by the legislature providing for the creation of a Banking Department, to1 be under the control of a Bank Commissioner, who shall be appointed by the Governor for a term of four years, by and with the consent of the Senate, with sufficient power and authority to regulate and control all State Banks, Loan, Trust and Guaranty Companies, under laws which shall provide for the protection of depositors and individual stockholders.”

The laws vitalizing this constitutional provision are found in chapter 40, articles 3 and 4, Okla St. 1931.

The indictments are based upon provisions contained in said articles.

Section 9146 (6 Okla. St. Ann. § 18), is in part as follows:

“Any commissioner, assistant commissioner, secretary, examiner, or employee of the Banking Department, who shall be guilty of any corruption or misconduct in office, or who shall accept any gratuity, reward or present from any bank or bank officer, or shall take or accept any fee or compensation from any bank or banker during his term of office, shall be deemed guilty of corruption in office, and, upon conviction, shall be punished by imprisonment in the State Penitentiary for a term of not less than one, nor more than ten years; and any commissioner, secretary, examiner or employee of the Banking Department, who shall neglect to perform any duty, or who shall prove to be incompetent, negligent, or insubordinate, may be summarily removed by the State Banking Board.”

And section 9163 (6 Okla. St. Ann. § 22) provides:

“Any Bank Commissioner or Assistant Bank Commissioner who shall neglect to perform any duty herein provided for, or who shall make any false statement concerning any bank, or who shall be guilty of misconduct or corruption in office shall, upon conviction thereof, be deemed guilty of a felony and punished in the manner herein provided, and in addition thereto shall be removed from office.”

Penal Code, § 1778 (21 Okla. St. Ann. § 94), defines the word “corruptly” as follows:

“The term ‘corruptly’ when so employed, imports a wrongful design to acquire some pecuniary or other advantage to the person guilty of the act or omission referred to.”

The judgments of the court below present a statement of the reasons which induced that court to sustain the motion to' quash and1 set aside the indictments as follows:

“That sections 1778, 9146, and 9163, O. S. 1931 [21 Okla. St. Ann. § 94, 6 Okla. St. Ann. §§ 18, 22], are too vague, indefinite, ambiguous and uncertain under the limitations of the Constitution of the State of Oklahoma and of the United States of America to create the offense of corruption in office, and that the same are wholly insufficient to support the indictment returned.”

It will be seen from the foregoing that the question to be determined is whether the statutes above quoted, defining what acts are prohibited and made punishable when committed by a bank commissioner or other officer of the banking department, acting as such; also providing that any Bank Commissioner or assistant “who shall be guilty of any misconduct or corruption in office shall” be deemed guilty of a felony, are void for uncertainty.

It is a well-settled rule that a penal statute must be construed with such strictness as to carefully guard the rights of the accused, and at the same time preserve the obvious intention of the Legislature; what the legislative intention was, however, can be derived only from the words used in the statute. State v. Young, 20 Okla. Cr. 383, 203 Pac. 484.

In Kepner v. U. S., 195 U. S. 100, 24 S. Ct. 797, 802, 9 L. Ed. 114, 1 Ann. Cas. 655, it is said:

“It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used im that sense by the legislative body.”

Another well-settled rule of construction is that where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense unless the context compels to -the contrary. Standard Oil Co. v. U. S., 221 U. S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734.

Where the purpose of a statute is in general the same as that of the common law, it will be presumed that the Legislature intended to re-enact in statute form the common law.

In Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100, we said:

“The definition of an act made an offense by statute, but not defined by it, may be ascertained by reference to common law.”

In State v. Lawrence, 9 Okla. Cr. 16, 130 Pac. 508, it is said:

“When the Legislature creates without defining an offense which was a crime under the common law, the definition of the crime given by the common law will be treated by the courts as though it were a part of the statute itself, and will1 render certain and definite that which might otherwise be uncertain and indefinite.”

16 Corpus Juris p. 67, is as follows:

“The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result; or it may group together various means by which the end may be accomplished and make any one of such means an offense when done to attain the object denounced by the statute. In the absence of provision to the contrary, a statute may punish an offense by giving it a name known to the common law, without further defining it and the common-law definition will be applied. In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the Legislature intended to prohibit and punish, otherwise it will be void for uncertainty. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible; but where the Legislature declares an offense in words of no determinate signification,, or its language is so general and indefinite that it may embrace not only acts commonly recognized as reprehensible but also others which it is unreasonable to presume were intended to be made criminal, the statute will be declared void for uncertainty. The certainty required may be accomplished, as we have seen, by the use of words or terms of settled meaning, or words which indicate offenses well known to and defined by the common law. It is not necessary to use technical terms, and the Legislature may designate the offense by using words in common and daily use; and a. penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.” Citing Czarra v. Board of Medical Sup’rs of District of Columbia, 25 App. D. C. 443; State v. Keasley, 50 La. Ann. 761, 23 So. 900; State v. Lawrence, 9 Okla. Cr. 16, 130 Pac. 508; Stewart v. State, 4 Okla. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505; Crawford v. U. S., 30 App. D. C. 1; U. S. v. U. S. Brewers’ Ass’n (D. C.) 239 F. 163; State v. Quinlan, 86 N. J. Law, 120, 91 A. 111; People v. Goldberger (Sp. Sess.) 163 N. Y. S. 663 (kosher).

In 14A Corpus Juris 1430, “Corruption” is defined as:

“Something against law; something forbidden by law, * * * The term is a very broad' one and, as usually spoken or written, means moral turpitude, or exactly the opposite of honesty, involving the intentional, disregard of law from improper motives. It includes bribery, but is more comprehensive, because an act may be corruptly done, although the advantage to be derived from it is not offered by another. As used in the phrase ‘corruption in office’, however, the term would undoubtedly cover the act of an officer in accepting a bribe.” Citing State v. Douglass, 239 Mo. 674, 144 S. W. 407.

Corruption in office is defined in Black’s Law Dictionary as:

“The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.”

14A Corpus Juris, 1431, is as follows:

“The phrase is a comprehensive one intended to cover every class of crime which amounts to a felony when intentionally committed by a ministerial or judicial officer; and will include bribery, embezzlement, receiving benefits from the deposit of public funds, corruptly allowing and auditing claims, the unlawful disbursement of public moneys, failure to pay over excessive fees collected,” etc.

Counsel for defendant in error in their brief say:

“Corruption in office has no ‘well settled common-law meaning.’ In fact ‘corruption in office’ was not a crime at common law. .Surely this statement will not be denied, so wé submit no further argument or authority in support thereof.”

As refuting* this statement, we quote 1 Russel on Crimes, p. 416:

“Where an officer neglects a duty incumbent on him, either by common law or by statute, he is indictable for his offense;. and this whether he be an officer of the common law, or appointed by Act of Parliament: and a person holding a public office under the King’s letters patent, or .derivatively from such authority, has been considered as amendable to the law for every part of his conduct, and obnoxious to punishment for not faithfully discharging it. And it is laid down generally that any public officer is indictable for misbehaviors in his office.”

And again, in the same work, page 432, it is said:

“Public officers mayi also be indicted for frauds committed in their official capacities.”

Wharton says (Wharton’s Crim. Law, § 1889) :

“It is a misdemeanor at common law for a public officer in the exercise or under color of exercising the duties of his office, to. abuse any discretionary power with which he is invested by law, from an improper motive. In such cases the existence of the motive may be inferred either from the nature of the act or from the circumstances of the whole case.”

Bishop says (Bishop St. Crimes, p. 146) :

“Since the common law punishes every breach of public duty, sufficient in magnitude for its notice, if a statute newly creates a duty of this sort, yet prescribes no punishment for its violation, the violator, while not indictable strictly under the statute, is so at the common law.”

And again, in section 363 of the same work, it is said:

“Still, there is constant occasion to refer to the common law to- ascertain the meaning of the statute in respect of the act; for we have seen that, if a statute employs a word or phrase which has already been used in the common law or in another statute, it is to be understood in the meaning previously determined. Thus, there are no common-law crimes against the United States; yet the acts of Congress, instead of minutely defining particular crimes, often make it penal, for example, to commit robbery or larceny or arson, and so on, — employing words of a well-known common-law meaning. In such a case the court looks to the common law to ascertain the nature and limits of the offense.” Hughes v. Territory, 8 Okla. 28, 56 P. 708.

In the case of State v. Young, 20 Okla. Cr. 397, 203 Pac. 489, 490, this court, construing section 12, article 7, of the Constitution, which among- other things provides that the county court shall not have jurisdiction “in any action against officers for misconduct in office,” said:

“The phrase ‘misconduct in office’ includes any willful malfeasance, misfeasance, or nonfeasance in office. Bishop substantially defines ‘misconduct in office’ in its penal sense as any act or omission in breach of a duty of public concern by one who has accepted public office, provided his act is willful and corrupt, and is not judicial. Bishop’s New Crim. Law, pars. 459, 460.”
“Malfeasance is doing that which officer has no authority to do, and is positively wrong or unlawful.”
“Misfeasance by an officer is doing in a wrongful manner that which law authorizes or requires him to do.”
“Nonfeasance by an officer is the substantial failure to perform duty.” 2 Words and Phrases, Fourth Series, pages 617, 696, 801.

In State v. Slover, 113 Mo. 202, 20 S. W. 788, 789, it is, said:

“The phrase ‘misconduct in office’ is broad enough to embrace any willful malfeasance, misfeasance, or non-feasance in office.”

In the case of Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 75, it is said:

“The accusation sufficiently charged willful misconduct in office as it is contemplated by the provisions of section 758 of the Penal Code, that) an accusation against any municipal officer for ‘willful or corrupt misconduct in office’ may be presented by the grand jury.” And see State v. Flynn, 119 Mo. App. 712, 94 S. W. 543; Grebe v. State, 112 Neb. 715, 201 N. W. 143.

It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word.

Furthermore, a single sentence should not be set apart and considered without relation to its context. The expression or phrase quoted is not an exception to the rule and should be considered in connection with the sections in which it is used.

In Gunning v. People, 86 Ill. App. 174, 12 Am. Cr. Rep. 563, it is said:

“When a word, which may in its application have different meanings, is used in a statute, the sense in which such word is used by the legislature should control .in construing and applying such statute. Where such word appears several times in the same chapter of the statute, and the sense in which it is used clearly appears in some sections, that may materially aid in determining the sense in which it is used in other sections of the same chapter.”

In Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, this court held:

“Where statutes not a part of the Penal Code make any specific act criminal, and statutes in the Penal Code make the same act a criminal offense, the offense and punishment thereof shall be governed by the special provisions relating thereto. Section 2092, Rev. Laws 1910 [sec. 1773, Stats. 1931 (21 Okla. St. Ann. § 11)].”

Further held:

“Under proper averments the definition of embezzlement as found in section 3213, Rev. Laws 1910 [section 7466, Stat. 1931 (28 Okla. St. Ann. § 3)], may be considered in aid of defining embezzlement under the provisions of section 7437, Rev. Laws 1910 [section 7761, Stats. 1931 (19 Okla. St. Ann. § 641)], both of which statutes are specific in their nature, and not a part of the general Criminal Code.”

In the case of State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, this court held:

“Usually where a statute makes it an offense to do this, that, or the other of several things, disjunctively, the whole or any part thereof may be charged, conjunctively, and proof of either or all will support a conviction.”

In the case of Davis v. State, 40 Okla. Cr. 231, 267 Pac. 674, 675, the defendant was convicted of violating the state banking laws. This court held:

“Where a statute defines an offense, and enumerates disjunctively the different acts or things which constitute the offense, all of such acts may be charged in a single count conjunctively, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense.”

In the cases at bar each indictment in charging the offense alleged acts, declared disjunctively by the statute, to constitute the offense conjunctively as constituting the crime. That this was correct pleading has been held repeatedly as in the foregoing cases.

The rule of strict construction of a penal statute is , not violated by giving its words a reasonable meaning according- to the sense in which they were intended, disregarding captious objections.

The charge contained in each of the indictments before us is within the statutory prohibition set forth in section 9146 (6 Okla. St. Ann. § 18), supra, as follows:

“Any commissioner, assistant commissioner, secretary, examiner, or employee of the Banking Department, who shall be guilty of any corruption or misconduct in office, or who- shall accept any gratuity, reward or present from any bank or bank officer, or shall take or accept any fee or compensation from any bank or banker during his term of office, shall be deemed guilty of corruption in office.”

This language is explicit; its meaning unmistakable. No ambiguity patent or latent appears to us in the text of the statute. The same may be said of section 9163 (6 Okla. St. Ann. § 22).

And we think the question in this case is answered in the other explicit provisions of the act.

The Constitution of the United States is the supreme law of the land, and next to it, and higher in authority than legislative statutes, is the Constitution of the state. Hence, when a statute comes in conflict with either, it must give away and the courts must decide whether such conflict exists or not.

This court is bound to sustain the fundamental law— the Constitution of the state according to its true intent and meaning. That is the great charter of our rights to which the humblest may at all times appeal and to which the highest must at all times submit. Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758.

In Patterson v. State, 7 Okla. Cr. 497, 124 Pac. 942, we said:

“The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state.”

In State v. Coyle, 7 Okla. Cr. 50, 122 Pac. 243, we said:

“Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.” -

Says Judge Cooley:

“The question whether a law be void for its repug-nancy to the Constitution is at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to' render such a judgment, would be unworthy of its' station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void.” Cooley’s Const. Lim. c. VII.

In Powell v. Commonwealth, 114 Pa. 265, 7 A. 913, 60 Am. Rep. 350, 7 Am. Cr. Rep. 32, it is said:

“But, as is shoAvn by Chief Justice Black in Sharpless v. Mayor, 9 Harris [21 Pa.] 147 [59 Am. Dec. 759], a statute will be declared void by the court ‘only when it violates the Constitution clearly, palpably, plainly and in such manner as to leave no doubt or hesitation on our minds.’ ”

The Banking Board Act has been in effect for 25 years and has been upheld in all the decisions of both appellate courts of this state wherein it was construed.

In the case of Bynum v. Strain, Bank Commissioner, 95 Okla. 45, 218 Pac. 883, the Supreme Court construed section 1, article 14, of the Constitution, and reviewed the legislative acts effectuating the constitutional mandate, including section 9146, supra.

In the case of State v. Dennis, 28 Okla. Cr. 312, 230 Pac. 935, the defendant, Dennis, Bank Commissioner, was informed against for corruption in office, the information contained four counts, a demurrer was interposed to the information on the ground that none of the counts state facts sufficient to’ constitute a public offense. The demurrer was sustained and the state appealed. The prosecution was based upon section 9163, supra. This court held that three of the four counts charging corruption in office charged an offense under this section.

Counsel for defendant in error say:

“The defendant submits his argument in support of the correctness of the lower court’s decision under this proposition of law.
“The defendant says that the expression ‘corruption in office’ contained in sections 9146 and 9163, O. S. 1931 [6 Okla. St. Ann. §§ 18, 22], is not defined by statute, has no ‘technical meaning’ nor ‘well settled common law meaning :’ that it is ‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application;’ that it is ‘not sufficiently explicit to inform those who are subject to it’ as to its meaning; that it is ‘too indefinite and uncertain to support an information or indictment;’ that therefore the statutes fail to meet the requirement of the Federal Constitution or of the State Constitution and are void and the indictment based solely thereon is a nullity.”

Quoting articles 5 and 6 and section 1 of article 14, Amendments to the Constitution of the United States, and section 7, article 2, of the State Constitution. Citing Connally v. General Construction Co., 269 U. S. 385, 46 S. Ct. 126, 127, 70 L. Ed. 322, holding that:

“A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

And that:

“A statute requiring a contractor, under penalty, to pay his employees ‘not less than the current rate of per diem wages in the locality where the work is performed,’ is so uncertain as to deprive contractors of their property without due process of law.”

Other cases upon which the defendant in error seems to rely are: U. S. v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; U. S. v. Reese, 92 U. S. 214, 23 L. Ed. 563; U. S. v. Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68.

In. the foregoing cases, certain words and phrases as used in a penal statute are held to he so vague, indefinite, and uncertain as to be in violation of the Fifth and Sixth Amendments to the Constitution, securing to the accused the right to be “informed of the nature and cause of the accusation.”

An examination of these cases leads to the conclusion that- they have no application to the statute under consideration.

In the case of Groskins v. State, 52 Okla. Cr. 197, 4 Pac. (2d) 117, cited by counsel for the defendant, this court held:

“A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.”

It is alleged in the indictment in each case that the acts set forth therein were unlawful, willful, corrupt, and felonious. It is needless to say more.

It follows from what has been said that the statute in question does not violate the due process clause of the Fifth Amendment and the requirement of the Sixth Amendment, that “the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation,” and does not deprive any person of liberty or property without due process of law within the meaning of that clause of the Fourteenth Amendment to the Constitution of the United States. And again, the statute does not violate section 7 of article 2 of the State Constitution, declaring that “no person shall be deprived of life, liberty, or property, without due process of law,” and does not violate that clause of section 20, article 2, declaring that the accused “shall be informed of the nature and cause of the accusation.”

This court is of opinion that the statute, including the sections in question, is constitutional and that all objections which have been urged thereto are without merit. Hence, the motions to quash and set aside the indictments in the two cases before the court below should be overruled.

For the reasons hereinbefore stated, said judgments of the district court of Oklahoma county, setting aside and quashing the indictments, are reversed and said cases are remanded to that court for further proceedings not inconsistent with the views expressed in this opinion.

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


source: Caselaw Access Project

author: EDWABDS, P. J.

license: Public Domain

text:
    Ex parte MARVIN WORLEY.
    No. A-9036.
    Jan. 9, 1937.
    (66 Pac. [2d] 107.)

      Lynn W. Norman, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for the State.
   EDWABDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the state penitentiary; that said restraint is based on a judgment of the district court of Murray county entered on January 15, 193'5; that said court was not in session at that time; that under the provisions of chapter 96, Sess. Laws 1933, House Bill No. 220, district 14, of which Murray county had been a part, was detached and became a part of district 19. That said act became effective January 14, 1935; that prior to said date the regular district judge of district 14 had adjourned the district court of Murray county sine die; that no special term had been called and said judge of district 19 had no jurisdiction.

It appears that by chapter 21, Sess. Laws 1935 (article 2 [20 Okla. St. Ann. §§ 95, 96 and notes]), two regular terms of the district court annually are provided for in each county, the said terms beginning the first Monday of January and July, each year, such terms to continue until the next regular term. The act became effective January 16, 1935, and by its provisions the regular term began on January 16, the date the act became effective. It is stated in the brief that the resident judge of district 14, from which Murray county was detached, adjourned the term on January 12,1935. This is not alleged in the petition, nor is any transcript of the record shown establishing such fact.

The petition is based entirely on the ground that the Fourteenth Legislature, by chapter 96, Sess. Laws 1933, effective January 14, 1935, had changed and rearranged the judicial districts of the state and in doing so had transferred Murray county from the old Fourteenth district to district 19. It is the contention of the petitioners that by virtue of said transfer of said county there was and) could be no term of court in said Murray county until the beginning of the next term as provided in said chapter 96, supra.

The contention that the act transferring Murray county from district 14 to district 19 would operate to terminate the existing term of court in said Murray county and prevent the existence of any term until the next term provided under the new act is not well founded. Under the act applicable to Murray county as part of district 14, terms of court began in May and November. The term of court theretofore opened in said county in November would not end by operation of law until the beginning of the next regular term. The situation created by the transfer of Murray county to district 19 was specifically passed upon by Oklahoma Supreme Court in Consolidated Flour Mills Co. v. Muegge, 127 Okla. 295, 260 Pac. 745. G-rant county had been trausferred from the ■Twelfth judicial district to the Twentieth district, and the same contention was advanced as is now made by petitioners. In syllabus 4 it is held:

“Under our law (section 9, art. 7, of the Constitution), and legislative enactments pursuant thereto, district courts exist as district courts of a particular county, and not as district courts of a particular judicial district; and where by an act of the Legislature a county is detached from one judicial district and attached to another district, and the terms of court are not changed by law, such legislative act does not disturb any lawful term of the court in existence at the time such law becomes effective.”

It is true the act provides for terms of court in Murray county to be held in March and September instead of May and November. However, this would not operate to terminate the existing term of court in Murray county until the beginning of the next term as provided for in the new act. It was not the intention of the Legislature to disrupt the courts of the entire state by giving that effect to the new act contended for. There is nothing in the act to indicate such was the legislative intention and the courts will not give the act such effect unless compelled to do so.

An additional question is presented by petitioner in his brief. It is stated that on January 12, 1935, an order was made by district judge of district No. 14, adjourning the November term of court sine die. As stated, this is not set forth in the petition, nor is any great stress made on this point in the brief. While neither the brief nor the petition contains any evidence of such order, we may assume it to be true. If we' are to consider the question thus raised, then the transfer of Murray county from district 14 to district 19, as alleged in the brief, becomes entirely immaterial. The transfer of the county from one district to another does not operate as a matter of law to terminate the existing term of the court, but an order adjourning the court sine die would have such effect. This, however, does not mean that the judgment and sentence pronounced against petitioners is illegal. Section 3831, Okla. Stat. 1931 (20 Okla. St. Ann. § 100), provides:

“Special terms of the district court in any county in a district may be called by the resident judge of said district, by order entered of record in such court, notice of such special term to be given in at least two consecutive issues of a weekly newspaper published and of general circulation in such county, prior to the convening of such special term.”

It is a well-established rule that the proceedings of courts are presumed regular. Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289. So it will be presumed the district court of Murray county was duly in session at a special term held under authority vested in the court by the above section. It will further be presumed that such special term was called and notice given as in said section provided. However, if such order were not entered and notice given, such would not avail petitioners in this proceeding. A failure to give the notice would be an irregularity which might have been taken advantage of on appeal but cannot avail petitioners in habeas corpus. In Penman v. Commonwealth, 141 Ky. 660, 133 S. W. 540, it was held failure to give notice was not error. In Bales v. Commonwealth, 11 S. W. 470, 471, the Kentucky Court of Appeals held:

“There is no reason for reversing this case, and whether the judge signed the order calling the special term is immaterial; the special term was held, and the accused .properly tried and condemned.”

It is claimed by petitioners that the court was without jurisdiction of the subject-matter. This contention is without merit. The court undoubtedly had jurisdiction of the crime of robbery committed in Murray county. It is admitted the court had jurisdiction of the person and that petitioner was sentenced upon his voluntary plea of guilty. The order and notice contemplated in section 3831, supra, are provided for the purpose of notifying the public and all persons interested of the approaching special term of court. In the absence of such notice defendants could have objected going to trial and have taken advantage of such irregularity on appeal. This petitioner, however, cannot claim he was in any way prejudiced by such notice or lack of notice. He voluntarily submitted himself to the action of the court.

In Dean v. United States, 33 F. (2d) 68, Circuit Court of Appeals, Eighth Circuit, June 5, 1929, the syllabus is:

“Defendant, pleading guilty during special term held under authority of Judicial Code, § 11 (28 U. S. C. A. § 15), could not take advantage of any irregularities in calling of the term and impaneling of the grand jury by habeas corpus, in that habeas corpus is not a substitute for appeal.
“Special term of District Court, held under authority of Judicial Code, § 11 (28 U. S. C. A. § 15), constituted a de facto term, regardless of irregularity in calling of term and impaneling of grand jury, and all things done at such time were valid and binding as to defendant, pleading guilty to indictment returned at such term.”

In the body of the opinion it isi said:

“The appellant was indicted by a grand jury called .for the special March, 1927, term of the United States District Court for the Northern District of Oklahoma, was sentenced on the 25th day of February, 1928, was committed on the 3d day of March, 1928, to the Washington county jail at Bartlesville, Okla. His claim is that no order or notice for the holding of this special term, at which the indictment was returned, was made or given as required by law, and that the indictment and all proceedings had by virtue of it are absolutely void. * * *
“It is very doubtful whether the showing made by the appellant in connection with his application for the writ overcame the usual presumption of regularity of court proceedings. See Lewis v. United States, 279 U. S. 63, 49 S. Ct. 257, 73 L. Ed. 615. But, arguendo, it may be assumed that the application and the exhibits attached affirmatively show that the irregularities complained of in calling the term occurred.
“The trial court was given no opportunity to pass upon the regularity of the proceedings pursuant to which the special term was held. There was no challenge to the grand jury; no writ of prohibition was sought to prevent the court or the grand jury from functioning at the special term; there was no motion to quash the indictment, no proceedings in abatement, no motion in arrest of judgment; and, from all that appears, the appellant walked into court, entered a plea of guilty to an indictment which upon its face was valid and regular, went to jail, and then for the first time concluded that he was unlawfully in custody, because of the alleged informality in the calling of the special term.
“There are two reasons why the application for the writ was properly denied. The appellant could not take advantage of the irregularities in the calling of the term and the impaneling of the grand jury by habeas corpus. It has been repeatedly held that habeas corpus is not a substitute for appeal.”

After quoting from Keizo v. Henry, 211 U. S. 146, 149, 29 S. Ct. 41, 53 L. Ed. 125, tbe court continued:

“Tbe second reason justifying tbe denial of tbe writ is that it sufficiently appears that tbe special March, 1927, term was a de facto term, if not a de jure one, and that all things done at that term were valid and binding. The proposition that the failure to spread an order calling a special term upon the court records, or to give notice of it in some other way, when in every other respect the special term was held in the usual and customary manner, must result in the release of one who subsequently pleads guilty to or is convicted of a charge contained in an indictment returned at such special term, is opposed to reason and common sense. The appellant expresses some apprehension that his conviction under this indictment may not be a bar to his again being tried for the same offense. There are no grounds for any uneasiness on that score.
“In People ex rel. Childs v. Extraordinary Trial Term of Supreme Court et al., 184 App. Div. 829, 833, 171 N. Y. S. 922, page 925, where the same question as is attempted to be presented here was raised, Judge Page said:
“ ‘Where a court is held by a judge authorized to hold it, and at a place where the court legally could be held, it is a de facto court, although it was defectively organized so that it was not a de jure court. As with all other de facto bodies or officers, the acts done, the things accomplished, upon the principles of policy and justice, will be held valid and binding. But such a court, body, or officer may by appropriate proceedings be prohibited in advance from exercising the powers that should only be exercised by a court, officers, or body de jure. The writ of prohibition is the appropriate remedy to prevent the acts of a court that may be such de facto, but is not de jure (citing cases). Upon the ground that the court so far held at this Extraordinary Term was a de facto court, I agree with presiding Justice Clarke that the grand jury summoned by it was a de facto grand jury and the indictments found by it are valid, and that none of tbe formal court proceedings heretofore had can be successfully challenged.’ ”

To say the least, the term of court was de facto and its proceedings valid but subject to review on appeal.

The writ is denied.

DAVENPORT and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    Ex parte JOHN DAVID CONLEY.
    No. A-9037.
    Jan. 9, 1937.
    (66 Pac. [2d] 110.)
    Lynn W. Norman, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This case presents the same question as Ex part Marvin Worley, 60 Okla. Cr. 384, 66 Pac. (2d) 107, just decided, and on the authority of that case the writ is denied.


author: DOYLE, J.

text:
    LEE MASON v. STATE.
    No. A-9070.
    Feb. 5, 1937.
    (64 Pac. [2d] 1238.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted in the county court of Jackson county upon an information charging that in said county on June 25, 1935, he did unlawfully have in his possession eight pints of whisky with the unlawful intent to sell the same. The jury rendered the following verdict:

“We, the jury empaneled and sworn to try the issues in the above entitled cause, do upon our oath, find the defendant Lee Mason guilty and leave his punishment to be fixed by the court.”

Motion for new trial was duly filed and overruled. October 16, 1935, the court rendered judgment and sen-teneed the defendant to be confined in the county jail for thirty days and pay a fine of $75 and the costs.

To reverse the judgment he appeals and assigns numerous errors, including the overruling of his motion to suppress the evidence, and that the verdict rendered is not supported by the evidence and is contrary to law.

The evidence on the part of the state shows that Henry Savage, sheriff of Jackson county, accompanied by two or three deputies, went to 409 North Grady street, Altus. The defendant, Mason, came to the door. He told him he had a search warrant, Mason turned on the light and he gave him the search warrant; that Mason said: “Sheriff, you got me this time.” He said: “Well, where is your liquor?” Mason said: “Setting there behind the door.” And there he “found six or eight pints of liquor,” which the sheriff identified. Thereupon six pint bottles containing liquor were offered in evidence.

■ The sheriff testified that the seventh bottle was found by one of his deputies in another room occupied by a ,lady who claimed the same.

As a witness in his own behalf, Lee Mason testified:

“The sheriff walked in the door and handed me a search warrant. I said, ‘-Sheriff, there is the liquor,’ it was in a paper sack, I was sick at the time, had asthma, and had to- have liquor for my throat. The man that hauls it called me over the telephone and told me I could have six pints for $4.50, he delivered it that night, and I was going down to pay him for the liquor, I never made the statement testified to by the sheriff.”

It is urged by counsel for appellant that the court erred in overruling defendant’s motion to suppress the evidence, obtained by an illegal search warrant issued upon an insufficient affidavit-.

This conviction rests npon tbe testimony of Sheriff Savage, the only state witness who testified on the trial and npon the evidence procured by a search and seizure in executing a search warrant issued upon an affidavit naming the person whose premises were to be searched as John Doe, and describing the place to be searched as: “Residence and all out houses thereto belonging located at 409 North Grady Street, in the city of Altus, county of Jackson, State of Oklahoma.” And further reciting: “Affiant further says: That said defendant, John Doe as aforesaid at said place and in said building are now wilfully and unlawfully bartering, selling, giving away and otherwise furnishing intoxicating liquors, to wit, whisky and beer.”

The evidence in support, of the motion to suppress shows that defendant, Lee Mason, a widower, and his two children lived at 409' North Grady street, Altus; that Mrs. Appling, her child, and her sister, Mrs. Helms, occupied a separate apartment; that this search was made in the nighttime.

Mrs. Lottie Helms testified that she with her sister, Mrs. Appling, occupied the west apartment and the defendant the northeast apartment..

In rebuttal, Sheriff Savage testified that this search warrant was originally made out for 419 North Grady street, and with Deputies Rollins, Hathaway, and Harrison he went to that number, then came back and got McBride, J. P., to change the number to 409, and went there and searched the house at that number. That there was a woman in bed in the south room who claimed it was her apartment.

The statute (section . 2635) provides that the warrant shall command a search of “the premises described and designated in such complaint and warrant.”

The warrant may not command the search of other or different premises than those described and designated in the affidavit.

In the case of Myer v. State, 34 Okla. Cr. 421, 246 Pac. 1105, 1106, it is said:

“Where the place to be searched is described in the affidavit and in the search warrant by a single street number without naming the owner or any of the occupants, where two or more families reside in separate apartments, a search warrant directing the officers to search the premises designated by such single number is void because in legal contemplation it describes more than one ‘place,’ within the meaning of the Constitution. One of several light housekeeping apartments, however humble or unpretentious, when occupied as a home, is just as sacred and entitled to the same constitutional protection as a separate mansion used as a home. Wiese v. State, 32 Okla. Cr. 203, 240 Pac. 1075; U. S. v. Innelli (D. C.) 286 F. 731; Search & Seizure by Cornelius (1925) § 126 et seq., and cases cited.”

In Uhlenhake v. State, 58 Okla. Cr. 248, 52 Pac. (2d) 117, 120, we said:

“Probable cause for the issuance of a search warrant is a mixed question of law and fact, and the true test of sufficiency of the complaint or affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false.”

The affidavit in this case does not name the owner, nor does it name any person occupying the premises described.

Obviously, the warrant was intended to operate, and did operate, as a blanket search warrant covering the private place of abode of several people, and was therefore void.

A private residence, occupied as such, is immune from search, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort. Section 2639.

The statute (section 2625) provides:

“It is hereby enacted, in order to suppress the unlawful practice of selling, bartering, giving away and otherwise furnishing liquors, the sale of which is prohibited by this act, from private residences, that it shall be unlawful for any person within this state to have or keep at, in, or about his place of residence, at any one time, more than one (1) gallon of spirituous, or one (1) gallon of vinous (the provisions of this act shall not apply to that for sacramental purposes) liquors, or any imitation thereof, or substitute therefor; nor more than one cask of malt liquors * * * Provided, that this section shall not be construed in any way, to legalize the keeping of such liquors at or about a place of residence for an unlawful purpose.” '

At the close of the evidence, defendant moved the court for a directed verdict of not guilty, for the reason the evidence was insufficient to sustain a conviction and the further reason that said evidence was obtained by an illegal search and seizure in violation of the constitutional rights of the defendant.

On the record before us we think the search and seizure in this case was unreasonable within the meaning of section 30, Bill of Bights, and for this reason all the state’s evidence was improperly admitted in violation of the defendant’s constitutional and statutory rights. It also appears that the amount of liquor in the defendant’s possession was insufficient to afford prima facie evidence of unlawful intent within the statute. And for this reason the trial court should have sustained the defendant’s motion for a directed verdict of acquittal.

The judgment of the court below is accordingly reversed, and the cause remanded, with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    FRANK RICE v. STATE.
    No. A-9096.
    April 9, 1937.
    (64 Pac. [2d] 1240.)

      W. C. Henneberry, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., for the State.
   BAREFOOT, J.

In this case the defendant was convicted of burglary in the second degree. He was charged in the information with having heretofore been convicted of the same crime and of having served a two-year term in the state reformatory at Granite. He was convicted and his punishment fixed at a term of ten years in the penitentiary. The verdict of the jury was as follows:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oaths find the defendant Frank Rice guilty of burglary in the second degree, as charged in the information herein, and fix his punishment at confinement in the state penitentiary at McAlester, Okla., for a period of ten years.”

The defendant excepted to the verdict, and the first assignment of error is: The verdict is contrary to law, for the reason that the jury, by its verdict, failed to state that he had formerly been convicted and sentenced to serve a term in the penitentiary.

In support of this contention defendant cites the case of Ex parte Daniels, 119 Cal. App. 350, 6 Pac. (2d) 549, a California case. A careful reading of this case and the California cases cited therein, and relied upon, are based upon the fact that California has an express statute which required the jury to pass upon the question of prior conviction. The California Penal Code, § 1158, provides:

“Whenever the fact of a previous conviction of another offense is charged in an indictment or information, the jury, if they find a verdict of guilty of the offense with which he is charged, must also, unless the answer of the defendant admits the charge, find whether or not he has suffered such previous conviction.”

Oklahoma, and practically every other state, has no such statute. The case of State v. Dale, 110 Wash. 181, 188 P. 473, 476, carefully distinguishes between the general rule, as adopted in the great majority of the states, and the rule adopted by California under the statute above quoted. The court in that case says:

“In view of what may occur upon a new trial of this case, we deem it proper to’ make some observations relative to remarks of the court in State v. Dericho [107 Wash. 468], 182 Pac. 597. The following is all that was said in that decision touching the question of submitting to the jury the question of former conviction of the defendant :
“ Nor did the court err in instructing the jnry to find whether or not appellant was formerly convicted, as a verdict finding a prior conviction is generally held essential to empower the court to impose the increased punishment provided by the act. State v. Findling, 123 Minn. 413, 144 N. W. 142, 49 L. R. A. (N. S.) 449, supra; People v. Dueber, 34 Cal. App. 686, 168 Pac. 578; People v. Franklin, 36 Cal. App. 23, 171 Pac. 441; Evans v. State, 150 Ind. 651, 50 N. E. 820.’
“A casual reading of these remarks might suggest the conclusion that the court was of the opinion that it would be necessary to have a special finding of the jury upon the question of the defendant’s former conviction in a case of this nature. We think, however, the language will not bear such construction, when read in the light of the decisions therein cited. A reference to the cited California cases will disclose that a special verdict upon the question of former conviction was required by express statute of that state, that is, it was required at the time of rendering the decisions in those cases, though apparently it was not required at the time of rendering the decision of the California court in the case of People v. Delany [49 Cal. B94] above noticed and quoted from. Referring to the cited Indiana case, we find its bolding to be, in substance, that a general verdict of ‘guilty as charged’ constitutes a finding against the defendant upon the question of his prior conviction as charged, there appearing to be no statute in Indiana calling for a special verdict upon that question. We think, therefore, that the above-quoted language from State v. Dericho is only a recognition that the question of a defendant’s former conviction in such cases is a jury question, and is not a holding that a special verdict on that question is necessary to sustain a conviction of the aggravated offense.”

In the very beginning of the tidal of the case counsel for the defendant admits in open court that the defendant had been previously convicted. The record shows the following proceedings:

“The Court: Are you ready? Mr. Henneberry: Comes now the defendant and admits prior conviction. The Court: Does what? Mr. Henneberry: We admit we have been previously convicted. The Court: Well; you are doing that so you can take the stand. Mr. Henneberry: No, no, no. The Court: What is the purpose of it? Mr. Henne-berry : The County Attorney then can’t read the fact that he has been previously convicted. Mr. Conway: The jury has to pass on that. Mr. Henneberry: Now, let me tell you, the only purpose in the world of the prior conviction being mentioned in the information is because— The Court: Is: to affect his credibility. Mr. Henneberry: No, no, to fix his punishment. Mr. Conway: The jury has got to fix the punishment. I have him charged with burglary, and then I say, ‘.Said defendant was heretofore’ on the 13th— The Court: Are you prosecuting him under the habitual criminal act? Mr. Conway: Yes, sir, it has to be proved as any other fact. Mr. Henneberry: Well, we admit it. The Court: Well, then it will have to be admitted in the record so the jury will know it. Mr. Henneberry: My view of it is this; That when we admit it, then when the court instructs the jury he don’t instruct them on the punishment for burglary, but the punishment provided for under the habitual — ”

In addition there was introduced in evidence the judgment and sentence on plea of guilty to the crime of burglary by the defendant upon a prior case. It was admitted without objection on the part of the defendant and no effort was made by him to deny that he was the party who had been convicted and sentenced. For future guidance we think it would be well for the courts of this state, in preparing verdicts to1 be submitted to juries in cases of this character, to require a finding in the verdict as to whether defendant is found guilty or not guilty as a second-offender, even though we do not have a specific statute requiring the jury to so- find in this state.

The court instructed the jury upon this question as follows:

“Number 7. You are instructed, however, that in determining the guilt or innocence of the defendant of the charge alleged in the information in this case, that is, with reference to the Cozy Theater, that you will not consider the question as to whether or not the defendant had previously committed a felony in this state, and 'been convicted thereof. However, if you do find the defendant guilty, beyond a reasonable doubt from the evidence adduced and under the instructions given in this case, and further find from the evidence beyond a reasonable doubt that the defendant has been previously convicted of a felony in the state of Oklahoma, then in determining the punishment to be inflicted, you may take into consideration such former conviction of a felony, if any, and fix the punishment to be inflicted at not less than ten years, as provided by statute.”

The above instruction correctly states the law as far as it goes, but the court should also- have instructed the jury that if they did not find beyond a reasonable doubt that defendant was guilty as a second offender, bnt do find him guilty of tbe crime charged in the information, that his punishment should be by confinement in the state penitentiary not less than two years nor more than seven years, as provided by the statute. The jury was nowhere instructed as to the punishment provided by the statute for burglary in the second degree. We think the jury should have been so instructed. There can be no question that from the evidence offered in this case and the admission made by the counsel for the defendant during the trial that the jury found the defendant guilty as a second offender. But for the error in this instruction we have decided that justice would be done by a reduction of the punishment assessed in this case to four years in the penitentiary. The defendant, as shown in the record, has served 270 days in jail before his conviction. He has been in the penitentiary for 18 months, being unable to make bond, and we think that when he serves sufficient time to satisfy four-year sentence that justice will have been done in this case for any error that might have been committed. The defendant, by his attorney, at the beginning of the trial admitted he was guilty as a second offender, and again during the trial made the same admission. He insisted the court should not submit this issue to the jury, seeking to keep from the jury the fact that defendant had been convicted at a prior time. We do not think he should be permitted to take advantage of this on appeal, and for this reason have reduced the penalty to four years as above indicated, which in our opinion is giving full justice to the defendant for the error committed in the instruction as above indicated. See Graham v. West Virginia, 224 U. S. 616, 32 S. Ct. 583, 56 L. Ed. 917; McDonald v. Massachusetts, 180 U. S. 311, 21 S. Ct. 389, 45 L. Ed. 542; Massey v. U. S. (C. C. A.) 281 F. 293; McCarren v. U. S. (C.. C. A.) 8 F. (2d) 113; State v. Findling, 123 Minn. 413, 144 N. W. 142, 49 L. R. A. (N. S.) 449. Tbe principles announced herein are in accord with those expressed in the cases of Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824; Wright v. State, 16 Okla. Cr. 458, 184 Pac. 158; Johnston v. State, 46 Okla. Cr. 431, 287 Pac. 1068.

The next assignment is, that the verdict is not supported by sufficient evidence, and that the evidence of Ted Cooper, who was an accomplice, was not sufficiently corroborated.

The evidence in this case shows that the Cozy Theater, in Tulsa, was burglarized during the night of January 21, 1935. Employees coming to work on the following morning found the doors of the theater pried open, the door of the safe pried open, with knobs, paper bags and rubbish on the floor. Following this one Ted Cooper was apprehended along with this defendant, and one Emil Weddel. He admitted the burglary and was used at the preliminary hearing against the defendant. His testimony, which was then taken, was read to the jury at the trial of plaintiff in error. He related that he met the defendant and Weddel at a hotel in Tulsa on the night of the burglary. That the three of them left the hotel and went to1 the Cozy Theater. That with a tire tool they pried the door of the theater open and with a heavy hammer knocked the knob off the safe and drove the pins out, making it possible to open the safe. After opening the safe they took money amounting to about $1,300, and went in a Ford car, belonging to one of the defendants, to a tourist camp near Tulsa, rented a cabin where they remained for some time, and after dividing the money returned to Tulsa. That while crossing the river defendant threw a suitcase containing the bags and wrappers in, in which the money had been kept.

The testimony of the witness Ted Cooper is corroborated in many details by the conditions found at the theater after the burglary, the testimony of the manager and the maid there, the proprietor of the cafe, and the owner of the camp cottage. The defendant was identified by the proprietor of the cafe where the defendant Cooper said they came for the purpose of renting the cottage; also, Mr. Shepherd, who owned the cottage and rented it to them in the early morning hours after the burglary. The witness Shepherd, after identifying the defendant, testified that they were in the cottage only a short while, and that he immediately went to the cottage after they left and there found money wrappers where they had been torn off rolls of nickels, dimes, quarters, and half dollars, such as had been on the money taken from the Cozy Theater. That he saw prints of money on the sheets on the bed in three piles. That the parties had told him at the time they rented the cottage that they' had just come from Oklahoma City. That they had tire trouble and were cold and wanted a cottage to rest and get warm. That he was suspicious and watched them, and that they only stayed there a short while and left. The witness Cooper testified to throwing one of the money bags into the river. This bag was identified as one that had been taken from the theater. This hag was also identified by the owner and employees of the theater. From this statement it is clear that the evidence was sufficient to convict the defendant and that the witness Cooper was amply corroborated by other testimony in this case.

Section 3071, Okla. Stats. 1931, provides:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense, or the circumstances thereof.”

By this it is not meant that separate and complete proof of a crime should be proved, but only there should be some evidence of material facts in addition to the testimony of the accomplice tending to connect the defendant with the commission of the crime charged.

This court has often passed upon the question of the sufficiency of the evidence to corroborate an accomplice, and we refer to the following cases which set out fully the reasoning of the court upon this proposition: Bond v. State, 54 Okla. Cr. 39, 14 Pac. (2d) 425; Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087; Fortman v. State, 45 Okla. Cr. 23, 280 Pac. 1109; Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43.

The next assignment of error is that the court erred in permitting the state to introduce the transcript of the testimony of the witness Cooper taken at the preliminary hearing for the reason that due diligence had not been shown to obtain his presence at the trial. This question has been before this court many times. It has often been held that upon proper showing by the state, it is permissible to read testimony of an absent witness. The authorities here cited fully discuss this proposition and give the reason for the rule. It is useless to quote from them, and we merely cite them in this opinion. Warren v. State, 6 Okla. Cr. 1, 2, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L.R.A. (N. S.) 701; Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001; Houser v. State, 41 Okla. Cr. 129, 271 Pac. 857; Jeffries v. State, 13 Okla. Cr. 146, 162 Pac. 1137; Pierce v. State, 35 Okla. Cr. 67, 248 Pac. 654.

The evidence shows that on the same date this case was set for trial the case of one of his codefendants was also set. A subpoena was issued in that case for the witness Cooper. Praecipe was filed September 7th and a subpoena issued on that date, for his appearance on September 18, 1935, and was returned 'by the sheriff of Tulsa county, on the 16th day of .September, 1935, in which he states: “I cannot find the within named Ted Cooper in my county.” The county attorney doubtless knew at the time he issued the subpoena that the witness was not in Tulsa county, and from the fact that the case of this defendant and his codefendant were set for the same day and at the same time, he considered it would be a useless expenditure of the county’s money to issue a subpoena for this witness in both cases. The return of the officer showed that the witness could not be found in Tulsa county. Under these circumstances Ave do not think it was error for the court to permit this proof.

In addition to this, the county attorney further showed his diligence in trying, to locate this witness by an officer whose testimony Avas as follows:

“A police officer Avhose name was E. P. Gardner, testified that he was acquainted with Ted Cooper, that he had last seen him just after the preliminary trial in this case, and further testified: ‘A. I started to try to locate Ted Cooper about four months ago. I had information that he was driving a truck at Vinita for somebody. I drove to Vinita and could not find where he had ever been employed there or in that vicinity. After showing his picture to everyone around the rooming house, pool halls, boarding houses, and everywhere else, I could not find him. I then had information that he was in Bartles-ville.’
“He further testified: ‘A. This case was set for special hearing on June 22nd and it was prior to that date that I had been up there trying to find Ted Cooper. I went to- Bartlesville and inquired of all trucking companies, boarding houses, rooming houses, and pool halls, showed them his picture and everything else and no one had heard of him. I next heard that he was in Joplin, ■Missouri. I did not go to Joplin, but sent his picture to the Chief of Police and put a pick-up there.’
“He further testified: ‘I next contacted the Special Agent of the Frisco Railroad, gave him Ted Cooper’s picture, asked him to distribute them over the line of the Frisco, to all of their agents, for them to contact the police departments through the different cities through which they operated, trying, to see if they could locate him. We have been unsuccessful. We don’t know where he is. And then, A. The last I heard of him was that he might be in Kansas City or Hallas. I have sent pictures to both places.’ ”

When objection is made to the introduction of evidence given and transcribed at a preliminary hearing where the witness is absent, counsel for the state or the defendant should offer evidence showing diligence on their part in an effort to secure the presence of the witness. As has been held by this court, the defendant is entitled to be confronted by the witness and be permitted the right to cross-examine him and every reasonable effort to secure the presence of the witness should be made and the record should show this diligence by the one seeking to introduce the same. In this case defendant had the opportunity of cross-examining the witness and by the same counsel who represented him in his final trial. Under the showing made, we do not think the court erred in permitting the evidence to be read of the witness Ted Cooper given at the preliminary hearing.

Plaintiff in error assigned several other errors which were that certain testimony was incompetent, that the information was insufficient, and that the verdict of the jury is contrary to law and evidence.

We have carefully examined these assignments and from what has heretofore been stated, we are of the opinion that the judgment and sentence in this case should be modified to four years in the penitentiary, and as so modified the judgment of the district court of Tulsa county is affirmed.

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


text:
    JACK PATTON v. STATE.
    No. A-9202.
    Feb. 5, 1937.
    (64 Pac. [2d] 1245.)

      E. Moore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges in substance that Jack Patton did in Coal county on or about the 3d day of August, 1935, commit the crime of assault with intent to kill by making an assault upon D. F. Manning with a deadly weapon, to wit, a pistol, and did inflict upon the said Manning certain grievous wounds with the felonious intent to' kill.

Upon his trial the jury by their verdict found the defendant guilty of assault with intent to' kill, fixing his punishment at confinement in the state penitentiary for four years. On February 13, 1936, motion for new trial was filed. An appeal bond was filed which recites:

“The condition of this obligation is such that whereas on the 3rd day of February, 1936 the said' Jack Patton, the principal obligor was tried and convicted of the offense of assault with intent to1 kill and on the 13th day of February, 1936, his motion for new trial in said cause was overruled and judgment and sentence was rendered against him and he was sentenced tO‘ serve a term of four years in the state penitentiary at McAlester.”

On September 16, 1936, a case-made with petition in error attached was filed in this court.

On December 4, 1936, the Attorney General filed a motion to dismiss this appeal upon the following grounds: That no written notices of appeal were ever served upon the clerk of the court where the judgment sought to' be appealed from was entered, nor upon the county attorney of Coal county stating, that the defendant appeals from said judgment of conviction; and that the case-made contains no copy of the judgment from which this appeal is taken.

No response has been made by the defendant to said motion. The record and case-made filed in this court fails to disclose that the defendant, within the time allowed for taking the appeal, served any notice of appeal upon the clerk of the court or county attorney as provided in section 3193, O. S. 1931, prescribing:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

An appeal to this court may be taken by the defendant as a matter of right from any judgment rendered against him; but the manner of taking and perfecting such appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by law.

Under the statute, notice to the clerk of the trial! court and to the county attorney are the prerequisite steps to conferring on this court jurisdiction to hear and determine an appeal from a judgment in a criminal action. Arispi v. Territory, 2 Okla. Cr. 79, 99 Pac. 1099; Clemmons v. State, 5 Okla. Cr. 119, 113 Pac. 238; Cloyd v. State, 6 Okla. Cr. 530, 119 Pac. 1125; Means v. State, 10 Okla. Cr. 581, 139 Pac. 115; Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173; Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

Under section 3193, supra, requiring notices of appeal to be served upon the clerk of the court and the county attorney, written notice is intended; and oral notice, though given in open court in the presence of those officers, and shown by journal entry, is insufficient.

The notice of appeal in criminal cases,. provided for in section 3193, is analogous to a citation or a summons in error, and is designed to take the place thereof. Clem-mons v. State, supra.

An examination of the record discloses that the case-made contains no> copy of the judgment referred to in the petition in error, and does not contain the journal entry of judgment appealed from.

The uniform holding of this court is that where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed. Fowler v. State, 11 Okla. Cr. 157, 143 Pac. 658; Loyd v. State, 12 Okla. Cr. 82, 151 Pac. 1190; Harjoe v. State, 14 Okla. Cr. 187, 169 Pac. 659.

Inasmuch as the case-made does not contain a copy of the judgment of the trial court, we are of the opinion that for this reason also this court is without jurisdiction to consider this appeal.

The case-made contains a copy of the verdict and motion for new trial, but no order appears overruling said motion, except the recital in the bond.

We may remark that an examination of the record shows that the only question presented is the sufficiency of the evidence to support the verdict. There was no objection to the information and no exceptions taken to the instructions given by the court.

The evidence shows that the prosecuting witness, a man in the fifties, and the defendant, a man in the early thirties, lived about a mile apart in the neighborhood ■about two- miles south of Clarita; that about 2 p. m. on the date alleged the complaining witness.walking on the highway to Clarita was overtaken by the defendant on horseback, and after a brief conversation the defendant pulled a pistol and shot him, the bullet entering above the left nipple; that Manning falling said, “Don’t shoot me any more,” and the defendant said, “I intend to kill you,” and fired two more shots, one- bullet entering the arm and the other entered the back.

As a witness in his own behalf, the defendant testified that when he started to- ride on, Manning reached down and picked up a rock, and as he drew back to throw it he shot him toi protect himself, and when Manning reached for his hip pocket he thought he was after a gun, so he fired two1 more shots and rode off; that Manning had made threats against him and he fired the shots, in self-defense.

For the reasons assigned, the purported appeal is dismissed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    JIM McBRAIN v. STATE.
    No. A-9172.
    Feb. 5, 1937.
    (65 Pac. [2d] 202.)

      Jno. V. Roberts, for plaintiff in error.
    Mac Q. Williamson, for the State.
   DAVENPORT, P. J.

The plaintiff in error was charged by information with the keeping in his possession one copper still boiler and tank without his having registered the same properly with the United States officer and obtaining from the said officer a certificate of registration, and without filing said certificate or a copy thereof with the county clerk of Grant county, Okla., the county in which the offense is alleged to. have been committed. For which crime the defendant was convicted and his punishment fixed at six months in the county jail and a fine of $500.

Glenn D. Davis, a Avitness for the state, stated:

“I am sheriff of Grant county, Oklahoma, On May 7, 1935, I went with other officers to the Harvey Venn farm in Grant county; we searched the Venn place andi found a still; Venn was living on the farm searched; no one Avas Avith the still, so we stayed there until the next day, when Jim McBrain came to it; he took the still down and scattered it around in a thicket of plum bushes.”

The testimony further shows that the other officer corroborated the statements of .Sheriff Davis. The plaintiff in error, the defendant in the lower court, signed a statement admitting he owned the still, consisting of one copper pot or boiler of about 75-gallon capacity, naming the other parts of the still, and also stated the statement had been made voluntarily and of his own free will and accord and without any duress exercised against him.

The defendant, testifying in his own behalf, admitted the still found at the Harvey Venn place was his, and stated he was paying Mr. Venn $1.50 a day when the still was operated. McBrain, the defendant, further stated that the still had not been operated for two or three weeks, and so far as he was concerned it probably would not be operated again.

He then testified that Venn phoned him the day before he went out to Venn’s place and asked him to come out, told him he had a cow for sale. “I went out to the Venn place and Venn told me he wanted me to get the still away from there. We took the still and threw the pieces in the thicket, and the officers came up to where we were.” The record shows that Mr. Venn was taken to town and he was released.

The defendant admits he was the owner of the still, and as a defense he says he was entrapped into going out to the Harvey Venn farm. He does not contend any one entrapped him into owning the still or in mailing whisky with the still. The only reason given by him that he was entrapped is that Venn phoned him to come out to his place; that he had a cow for sale. This in no' way relates to the commission of the offense. The foregoing is in substance the testimony.

The only assignment of error presented in defendant’s brief and argued is that the court erred in refusing to give his requested instruction on the question of entrapment.

The testimony in this case fails to show that any one entrapped the defendant into the offense charged against him, that is, that he was entrapped in owning and controlling the still found. On the contrary he admits his guilt.

In the case of Caveness v. State, 3 Okla. Cr. 729, 109 Pac. 125, in the body of the opinion the court said:

“The state is not precluded from prosecuting, the defendant for selling liquor because the purchase was made by the officer for the purpose of instituting a prosecution against him.”

In the case of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, 539, paragraph 4-c of the syllabus, the court said:

“It is not improper for officers, charged with the duty of enforcing the laws, to employ detectives to ferret out and procure evidence for the prosecution of parties who violate the law.”

The holding of the court in De Graff v. State, supra, has been adhered to by this court. The court did not err in refusing to give the requested instruction of the defendant.

There is nothing in this record to show that the defendant was a law violator. The charge against him seems to be his first offense. It is further shown by the record, and undisputed by the state, that the defendant had not been out to the place where the still was located for more than two or three weeks, and that he did not intend to go out there or use the still any longer, and that Mr. Venn sought to shift the responsibility of his connection with it to the defendant. The punishment imposed in this case, under the facts, in the minds of the court is excessive, and should be modified from a fine of $500 and six months in jail, to a fine of $200 and 60 days in jail, and as modified the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    ROBERT HICKMAN v. STATE.
    No. A-9157.
    Feb. 5, 1937.
    (65 Pac. [2d] 211.)
    John E. McCain and Champion, Champion & Fischl, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, J.

The plaintiff in error, Robert Hickman, was convicted of burglary in the second degree in Johnston county, Oklá., on the 9th day of December, 1935, and was sentenced to serve a term of two years in the state penitentiary. His appeal was filed in this court on the 10th day of June, 1936. No brief was filed on behalf of plaintiff in error and no' appearance was made when the case was set for oral argument.

The rule has long been established in this court that when no brief is filed or appearance made for oral argument, the record will be examined for the purpose of determining whether or not jurisdictional facts are disclosed, and when such facts are disclosed and no fundamental error appears, the judgment of the trial court will be affirmed. Bloodsworth v. State, 10 Okla. Cr. 99, 133 Pac. 1131; Spann v. State, 22 Okla. Cr. 128, 210 Pac. 315; Gladys Mitchell v. State, 35 Okla. Cr. 61, 248 Pac. 654; Bob Jones et al. v. State, 58 Okla. Cr. 308, 53 Pac. (2d) 292, and Benton Walker v. State, 60 Okla. Cr. 302, 64 Pac. (2d) 935.

We have carefully examined the record and read the testimony in this case. An information was filed against this defendant by the county attorney of Johnston county on the 22d day of June, 1935, charging him jointly with W. T. Morrow with the crime of burglary in the second, degree. Testimony reveals that the home of M. O. Gam-mill, who lives near Mannsville, in Johnston county, was broken into on the 5th day of May, 1935, by the breaking of the door which had been locked. Certain tools with which the door had been broken were found near the premises. The burglary was committed in the daytime and while Mr. Gammill and family were away from home. Certain wearing apparel, flour, and silverware had been taken. Upon his return home in the evening, Mr. Gammill found Avhere car tracks had been near the door and that there were tracks of two different parties who had walked up to the door and away from it. A short while after this a large portion of this property was found at the home of the defendant. The silverware was buried in the cellar of defendant’s home and the clothing was buried in the bam. All of this property was identified as being property taken at the time of the burglary. Defendant admitted, while testifying in his own behalf, that he was present when the burglary was committed, but contended that his codefendant, who was in the penitentiary at the time of the trial, had committed the burglary and that he accompanied him, not- knowing that he intended to commit the crime. There is much incriminating testimony against the defendant. Testifying on his own behalf, he admitted hiding and burying the property after the officers had been to his house looking for it. He at first denied having the property and afterwards admitted that he did have it. The testimony of other witnesses clearly showed that he participated with his codefendant in the commission of the crime as alleged in the information.

The jury heard his defense; they did not believe it. He was given the minimum punishment. He had a fair and impartial trial.

The judgment of the district court of Johnston county is affirmed.

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


text:
    Ex parte ROY MOORE.
    No. A-9256.
    Feb. 5, 1937.
    (65 Pac. [2d] 201.)
    Roy Moore, per se.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

This is an original petition asking for a writ of habeas corpus. Among other allegations the petitioner alleges:

“That he is illegally restrained of his liberty, in the means and manner as follows:
“That on the 18th day of April, 1936, he was sentenced in the district court of Bryan County, to serve a term of five (5) years for the crime of subsequent offense petit larceny.”

That he is now confined in the state penitentiary, at McAlester, Olda., that he was received at the state penitentiary on the 18th day of April, 1936, and assigned No. 34011.

The main grounds of the petitioner’s contention that he is illegally restrained of his liberty is that the information filed against this defendant alleges he committed the crime of subsequent and second offense petit larceny. The information charged that the defendant prior to the filing of the information in this case had been convicted and served a number of sentences. The records of the court show that when the defendant was called on to plead in the district court of Bryan county, Obla., which is,a court of general jurisdiction having jurisdiction over the defendant and the crime charged against him, this defendant entered his plea of not guilty, was then , tried, convicted, and sentenced to serve a term of five years in the state penitentiary.

It is argued by the petitioner that the judgment and sentence against him for five years’ confinement in the state penitentiary is illegal, for the reason that the judgment recites subsequent offense petit larceny.

With the petitioner’s contention this court does not agree. The information shows conclusively that prior to the trial in the case for which the defendant now is confined in the penitentiary the defendant was convicted of several different offenses, not only in this but in other states, and when the information was drawn in this case it alleged subsequent offenses for' which the defendant had been tried, convicted, and sentenced, and then alleged the crime of petit larceny against the defendant convicted on the 7th day of December, 1935, in Bryan county, Okla.

Section 1817, O. S. 1931, provides for the punish-inent to be inflicted upon those who are convicted upon a- second offense. The third paragraph of said section is as follows:

“If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.”

The record shows that this defendant was tried and convicted of petit larceny, alleged to have been a subsequent offense committed by the petitioner after he had been convicted of several other offenses and served sentences. The pleading shows the conviction of the petitioner was regular, that the court had jurisdiction of the subject-matter and the petitioner; and they further show that the defendant is not entitled to the relief prayed for.

The writ is therefore denied.


text:
    ROBERT HICKMAN v. STATE.
    No. A-9167.
    Feb. 5, 1937.
    (65 Pac. [2d] 420.)
    Champion, Champion & Fischl and John E. McCain, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of larceny, and his punishment fixed at two years in the state penitentiary.

The record in this case was filed in this court on June 30, 1936; no brief has been filed in support of plaintiff’s assignment of errors. A careful examination of the record discloses no fundamental errors. The evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    Ex parte HENRY WOODWARD.
    No. A-9251.
    Feb. 5, 1937.
    (64 Pac. [2d] 1247.)
    Mac Q. Williamson, Atty. Gen., and Sam L. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, J.

This is an original petition asking for writ of habeas corpus. The petitioner being now confined in the state penitentiary at McAlester. The petitioner complains that he is unlawfully imprisoned, confined, and detained of his liberty and has been restrained thereof in Oklahoma state penitentiary.

The facts, as shown by the record in this case, are that the petitioner, Henry Woodward, was convicted of the crime of robbery in Creek county, Okla., and was sentenced to serve a term in the Granite reformatory, for a period of seven years. He was received at the Granite reformatory on June 27, 1921. On June 17, 1923, he escaped from prison, and all of the good time which he had received in that institution was therefore forfeited. While out of prison, he was again convicted of robbery in Ottawa county, under the name of Howard Duncan, and sentenced to serve a term of 25 years in the state penitentiary at McAlester. He was received at the McAlester penitentiary on September 23, 1924, and was given the number 14,440. He served in the McAlester prison until January 11, 1931, at which time he was issued a parole by the then Governor, Holloway. He was, however, held in the jail at McAlester for a period of four days and was on January 15, 1931, transferred to the reformatory at- Granite, to serve out his unexpired term. On June 8, 1931, the parole which had been granted him on January 11, 1931, was revoked by Gov. Murray. He served in the Granite reformatory until June 29, 1931, as number 24,102 and on this date was transferred back to McAlester where he is now serving and has served since that time.

The total amount of time which he has served at Mc-Alester is eleven years, ten months, and 22 days. The total at Granite two years, five months, and four days. According to the rules and regulations in force in the prisons of this state, the total amount of time which it would have been necessary for him to' serve in McAlester, after being given credit for the time to which he was entitled, was eleven years, nine months, and eighteen days. The total amount necessary at Granite would have been three years, seven months, and seventeen days, and his application for habeas corpus at this time is based upon the fact that he has served at McAlester eleven years, ten months, and twenty-two days; but the record submitted by the state in this case shows that at the time of his transfer from Granite reformatory on June 29, 1931, or soon thereafter, that Gov. Murray, the Chief Executive of this state, issued an executive order, in which it is said:

“Whereas, the said Henry Woodward, Number 3089, left unserved on his sentence at the Oklahoma State Reformatory at Granite, Oklahoma, one year, one month and thirteen days at the time he was transferred to the Oklahoma State Penitentiary at McAlester, Oklahoma.
“Now, Therefore, I, Wm. H. Murray, Governor of the State of Oklahoma, by virtue of the power and authority vested in me by law, do hereby transfer the remainder of the prison time of Henry Woodward, Number 3089, due the Oklahoma State Reformatory at Granite, Oklahoma, to the Oklahoma State Penitentiary, at McAlester, Oklahoma, where the said Henry Woodward, Number 3089, will serve out said time to the same extent and purpose as if he had served said time in the Oklahoma State Reformatory at Granite, Oklahoma.”

It will thus be seen that when petitioner was transferred to McAlester on June 29, 1931, that it was necessary for him to serve a term of one year, one month, and thirteen days in the McAlester penitentiary as a balance of the time that was due upon the sentence at Granite. This would have kept him in prison until the 16th day of November, 1932, to have satisfied this judgment and sentence. It will, therefore, be noted that the total amount of time served in the McAlester penitentiary would be approximately ten years, six months, and four days, which would not be sufficient time to serve out that sentence. Section 5301, Okla. Stats. 1931, permits the transfer of prisoners from McAlester to Granite, and from Granite to McAlester. It, therefore, appearing from the record that petitioner has not yet served the time as required under the sentence which he received, he is therefore not entitled tO' the relief prayed for.

The writ is therefore denied.

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


text:
    LEE PENA v. STATE.
    No. A-9193.
    Feb. 12, 1937.
    (65 Pac. [2d] 210.)
    John W. Tyree, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was by information charged with the crime of murder, in the killing of George Laurenzana; was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of 18 years in the state penitentiary, and appeals. The petition in error, with case-made attached, was filed in this court .on August 26, 1936.

The facts in substance are that on the night of August 3, 1935, the defendant and his wife, the deceased, and. other acquaintances, attended a dance in the neighborhood where several Mexican families lived; some feeling came up between the deceased and defendant that night, but so far as the record shows it was not very serious. The next morning the defendant in this case and a man by the name of Adams drove back to the Mexican neighborhood, stopped the car, and started walking down to the house where the deceased was; the deceased saw them coming and stepped out of the door and walked toward the defendant and Adams; the defendant drew a pistol and fired three shots ; from the effect of the shots the deceased instantly died.

The only defense presented by the plaintiff in error is that the deceased, when he came out of the house walking toward him, had his hand to his side, which led him to believe the deceased was going to draw a weapon of some kind and take his life. Neither of the witnesses saw the deceased with a weapon, or saw him make any effort to do injury to the plaintiff in error. The plaintiff in error after firing the shots started walking away, and then hurried up into a trot until he got back to the car in which he and Adams had driven to the scene of the killing, and immediately drove away. No words passed between the deceased and the defendant immediately prior to and at the time of the shooting.

The defendant has assigned five errors alleged to have been committed by the trial court.

“1. The verdict is contrary to the law and the evidence.
“2. The court erred in admitting incompetent and prejudicial evidence.
“3. The couid erred in excluding material and competent evidence.
“4. Judgment and sentence of the court is excessive under the testimony in the case.
“5. There are other errors of law committed during the trial of the cause.”

There being, no argument of the defendant presented in support of the assignment of errors, the court has examined the record carefully to ascertain whether or not there is any fundamental or prejudicial error which deprived the plaintiff in error of a fair and impartial trial. After a careful examination of the record and considering the testimony of the state, we fail to find any error in the record sufficient to deprive the plaintiff in error, the defendant in the trial court, of his rights under the Constitution and the laws of this state.

The action of the defendant in taking the life of the deceased clearly shows he had armed himself with a pistol and sought out the deceased, and immediately when deceased came out of the house and came toward defendant he began shooting and kept on until the deceased had fallen.

The defendant was fortunate in not receiving a more severe sentence. We hold there is nothing in the record that would warrant this court in modifying the sentence imposed by the trial court. The plaintiff in error was accorded a fair and impartial trial. There are no errors in the record warranting a reversal. The court correctly advised the jury as to the law applicable to the facts.

The judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.