text:
    BILL LIZAR v. STATE.
    No. A-10449.
    Feb. 13, 1946.
    (166 P. 2d 119.)

      Brown Moore and Guy Horton, both of Stillwater, and Lee Johnson, of Pawnee, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Ewing C. Sadler, Asst. Atty. Gen., and Horace D. Ballaine, Acting County Atty., of Pawnee, for defendant in error.
   BAREFOOT, J.

Defendant, Bill Lizar, was charged in the district court of Pawnee county with the crime of receiving stolen property; was tried, convicted and sentenced to serve a term of three years in the State Penitentiary, and has appealed.

This defendant was previously convicted in this case, and appealed to this court. The case was reversed and remanded, and a new trial ordered. Lizar v. State, 74 Okla. Cr. 368, 126 P. 2d 552.

The facts are stated in the former opinion, and it is unnecessary to here repeat them. On the first trial, , defendant was sentenced to serve a term of five years in the penitentiary. Here he is sentenced to serve a term of three years.

Twenty assignments of error are alleged, but defendant in his brief relies on five, as follows:

First: “The court erred in appointing Horace D. Ballaine as special prosecutor.”
Second: “The court erred in appointing Mr. Byers assistant to the special prosecutor.”
Third: “The court erred in overruling the defendant’s application for a continuance.”
Fourth: “The court erred in sustaining the objections of the state to competent, material and relevant evidence and testimony offered by tbe plaintiff in error.”
Fifth: “The court erred in admitting incompetent, irrelevant and prejudicial evidence and testimony.”

The first assignment of error is presented under three heads: (a) Mr. Ballaine was not appointed in the manner required by law; (b) Mr. Ballaine was not a suitable person within the meaning of the statutes in such cases made and provided; and (c) Mr. Ballaine did not qualify as such special county attorney, as required by law.

The applicable statute of this state with reference to the appointment of a special county attorney is 19 O. S. 1941 § 187, and is as follows:

“The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or be unable to attend to his duties, or disqualified to act may, appoint,, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed.”

The facts with reference to the appointment of Mr. Ballaine as special county attorney are as follows:

At the time the information -was filed, July 5, 1940, in which this defendant was charged with receiving stolen property, Mr. Ballaine was the county attorney of Pawnee county, and as such county attorney represented the state and prosecuted the defendant. The defendant was convicted and appealed to the Criminal Court of Appeals. The case was reversed and remanded for a new trial, because of the admission of incompetent and prejudicial testimony. On February 28, 1943, and prior to the second trial, Mr. Ballaine resigned as county attorney of Pawnee county, and Mr. L. M. Kimerly was appointed to succeed him.

On March 8, 1943, the following order was entered on the journal of the district court of Pawnee county:

“Cases assigned for trial Monday, March 29, 1943.
“1953, State of Oklahoma v. Bill Lizar, and now on this 8th day of March, 1943, Horace D. Ballaine is hereby appointed special prosecutor.”

On March 29, 1943, the case was called for trial. A motion for continuance was filed by defendant because of the' absence of two witnesses. Evidence was taken and the motion for continuance was overruled. At that time, the following proceedings were had:

“Mr. Moore: The defendant, at this time, objects to the appearance of Mr. Ballaine, special prosecutor, for the reason that he is holding a dual office — that is, he is law clerk in the Supreme Court and for that reason, and as a matter of law is not entitled to appear as special prosecutor in this case at this time, and we ask that the case be stricken for a new trial assignment, and for the further reason that a prosecution against the defendant would be in violation of his legal constitutional rights. The Court: Overruled. Mr. Moore: Exception, and the defendant further objects to the appearance of Mr. Byers, special prosecutor, for the reason that his appearance is not authorized by law and is in violation of the legal constitutional rights of this defendant. Mr. Ballaine: I employed Mr. Byers to assist me, and if the court feels it is necessary, I would like to have you appoint him too, as special prosecutor. The Court: Very well, at your request Mr. Byers will be appointed to assist you. Mr. Moore: Exception.”

Defendant in Ms brief cites the following cases to sustain his contention: Lattimore v. Vernor, 142 Okla. 105, 288 P. 463; Board of County Commissioners of Tulsa County v. Johnston, 192 Okla. 203, 134 P. 2d 335; Viers v. State, 10 Okla. Cr. 28, 134 P. 80; McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260; Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, 33 L.R.A., N.S., 568, Ann. Cas. 1912D, 180; State v. Maben, 5 Okla. Cr. 581, 114 P. 1122; Dodd et al. v. State, 5 Okla. Cr. 513, 115 P. 632; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698.

The state in its answer brief refers to the above cases, and asserts that they are distinguishable from the facts here presented; and also cites the following cases: Guthrie Daily Leader v. Cameron, 3 Okla. 677, 41 P. 635; Oklahoma City v. Century Indemnity Co., 178 Okla. 212, 62 P. 2d 94; State v. Sowards, 64 Okla. Cr. 430, 82 P. 2d 324; People ex rel. Attorney General v. Provines, 34 Cal. 520, 89 A.L.R. 1122; City of Ardmore v. Sayre, 54 Okla. 779, 154 P. 356; Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L.R.A., N.S., 1036; Sheldon v. Green, 182 Okla. 208, 77 P. 2d 114; Morgan v. State, 66 Okla. Cr. 205, 90 P. 2d 683; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698; Mahaffey v. Territory of Oklahoma, 11 Okla. 213, 66 P. 342; Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636; Hyde v. Territory. 8 Okla. 69, 56 P. 851; Board of County Commissioners, Comanche County, v. Fain, 66 Okla. 13, 166 P. 896; Baggett v. State, 35 Okla. Cr. 119, 248 P. 875; State v. Gray, 71 Okla. Cr. 309, 111 P. 2d 514.

We have read all of the cases cited, and consider it unnecessary to refer to each case. Many of the cases cited by defendant have reference to the appointment of a special county attorney, or a deputy county attorney where they appeared before a grand jury, and the indictment returned by the grand jury was quashed or sustained. Other cases were where there was an effort being made to prohibit the duly elected county attorney from acting and a proceeding was brought by him to prohibit interference with him in the performance of his duties as county attorney.

Of all the cases cited, it occurs to us that the case of Hisaw v. State, supra [13 Okla. Cr. 484. 165 P. 639], is more nearly in point with the issues involved in this case; and the construction there placed upon the statute under consideration (19 O.S. 1941 § 187) is more in conformity with the construction which we think should be placed thereon under the facts in the instant case. In that case Judge Matson, who wrote the opinion, said:

“The regularly elected county attorney being disqualified by reason of having been employed by the defendant as counsel in his defense, prior to his election to the office of county attorney, the regular district judge of the district while holding court in another county in the district appointed Mr. Guy A. Curry, an attorney of the Haskell county bar, as special prosecuting attorney in this case. This appointment was made some two years after the return of the indictment; the special prosecutor being appointed merely for the purpose of preparing the state’s case for, and conducting, the trial.
“The counsel for defendant filed numerous motions and took various exceptions, all based upon the action of the district judge in appointing a special county attorney while not in open court in Haskell county. It is contended that our statutes require that a special or substitute county attorney must be appointed by the court, and that an appointment by the presiding judge in vacation is void, and all subsequent proceedings conducted by such an appointed special county attorney are an absolute nullity. Counsel cite the case of Dodd v. State, 5 Okla. Cr. 513, 115 P. 632, in support of their contention that this appointment was void. However, in the Dodd case, the special county attorney was appointed by a district judge who had, prior to the appointment, become disqualified, and the special county attorney himself failed to properly qualify according to the laws of this state.
“In this case it is nowhere contended that the district judge making the appointment was disqualified to act, or that the special county attorney failed to take the required oath of office before acting. On the contrary, it is made to appear affirmatively that the district judge was qualified to make the appointment, and that before taking any action in the case the special county attorney properly qualified.
“The sole contention in this case is that the appointment was void because not made in open court and the order entered upon the minutes. Section 1558, Rev. Laws 1910 (19 O.S. 1941 § 187), provides:
“ ‘The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed.’
“The foregoing statute was intended to give the district court the power and authority to appoint temporarily a county attorney to act in the place and stead of the regular county attorney under the circumstances enumerated in the statute. Prior to the adoption of [Rev. Laws 1910], the words ‘or disqualified to act’ were not contained in this statute. They were inserted by the codifiers of that Code. Independent of the statute, however, the court would have the inherent power to appoint a special county attorney under any of the circumstances therein enumerated. It is essential to the very life of the court that the proper officers be in attendance upon it. The power to appoint such officers is necessary for the protection and existence of the court and absolutely essential to the administration of justice and the enforcement of all our laws. It would be an indefensible reproach upon our institutions if crimes should go unpunished and the public business remained unattended to for want of power in a court of general jurisdiction to appoint some one to supply the place of the regular elected officer when absent from the court or disqualified to act. The courts of this state are not powerless to this extent. They have the right and power to preserve their life, and the machinery of the court cannot be kept in motion without its proper officers. It is therefore an inherent power of the presiding judge of the court to supply these officers when there is a temporary vacancy or a disqualification in any particular case. We conceive it our duty therefore to give the foregoing statute a broad, practical, and common-sense construction in order to carry into effect the purposes for which it was enacted, and to give expression to this inherent power of courts of general, jurisdiction in this state. We admit that it was intended that the special county attorney should be appointed by the court; but should an irregularity in the appointment destroy its effect and render void all the acts of this special officer where it appears conclusively from the record that with the knowledge and consent of the court the officer proceeded to his duty? In this case, while the original appointment was made by the judge in vacation, yet when the case was called for trial, and objection made to that appointment, the judge in open court before proceeding to the trial of this case announced that the appointment had been made by him, and permitted the special county attorney thus appointed to proceed as the representative of the state in this action. It is admitted also by counsel for the defendant that the regular county attorney was disqualified in this case; that the special county attorney who represented the state was qualified to act, and the very judge who made the appointment in vacation presided at the trial. It is onr opinion, therefore, that the action of the trial judge in permitting the special county attorney to act under these circumstances amounted in itself to an appointment made by the court, and was a specific ratification by the court of everything that the presiding judge had done in vacation and at his chambers. The purpose of having the appointment made by the court is to permit a judicial determination of the fact that some ground exists under the statute which permits an appointment to be made. That such a ground did exist clearly appears from the record of the trial and proceedings in this case. The purpose of having the order of appointment noted in the minutes of the court is to supply a record thereof, and in our opinion it is a substantial compliance with that provision of the statute if the order of appointment be recorded on the journal of' the court and made a part of the proceedings of the case, as was done in this instance. In the case of State v. Duncan, 116 Mo. 288, 22 S.W. 699, it was held:
“ ‘Where there was no prosecuting officer in attendance on the trial, the court had the power, aside from Revised Statutes 1889, § 643 [Mo.R.S.A. § 12949], to appoint a temporary representative of the state; and the fact that, in the absence of the circuit attorney, the trial court permitted another to represent him, was tantamount to an appointment.’
“And again, section 5908, Revised Laws 1910 (Tit. 22 O.S. 1941 § 859) provides:
“ ‘If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.’
“The latter statute permits the court to appoint a special county attorney for the trial of any particular case where the regular county attorney is disqualified. These statutes are merely expressive of the inherent powers of a court of general jurisdiction, and when it is made to appear, as it does in this case, that a contingency arose under which it was proper for the court to appoint a substitute for the county attorney, although the appointment be made in vacation, if afterwards in open court the same judge recognizes the appointment and permits a qualified person to act upon the trial in the place and stead of the disqualified county attorney, there has been a sufficient compliance with the statutory requirements to validate said appointment.”

See also Hyde v. Territory, supra; Baggett v. State, supra; State v. Gray, supra, and Board of County Commissioners of Comanche County v. Fain, supra.

The language used above applies with equal force here. The district judge who made the appointment in this case was the duly qualified and acting district judge. The record discloses that the regular county attorney, Mr. Kimerly, was disqualified by reason of having represented the defendant in this identical case at the time of his first trial. Mr. Ballaine was the attorney who represented the state as county attorney at the time defendant was charged and tried, was fully familiar with the case, and well qualified to represent the state.

We nest consider the contention that Mr. Ballaine was not a “suitable” person, within the meaning of the statute.

This contention is based on the fact that he was at the time of the trial legal assistant to one of the Judges of the Supreme Court, and the argument is made that he could not hold two offices at the same time, especially by reason of the provision of the statute:

“Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed.”

The contention of the defendant that Mr. Ballaine could not be appointed as special county attorney is by reason of 51 O.S. 1941 § 6, which is as follows:

“Except as may be otherwise provided, no person holding an office under the laws of the State and no deputy of any officer so holding any office, shall, during his term of office, hold any other office or be the deputy of any officer holding any office, under the laws of the State. Provided, that the provisions of this Section will not apply to notaries public and members of the Textbook Commission.”

Defendant does not cite any authority to sustain his contention, but makes the argument that Mr. Ballaine Avas, by reason of his position, in the same position as a state officer, and that it would be unfair to a defendant to permit the appointment of a “state officer” with the power of his office, to prosecute a defendant.

We do not consider this reasoning sound, for the reason that in our opinion, a legal assistant to one of the Judges of the Supreme Court is not an officer or deputy officer as contemplated by the statute above quoted. He does not under the law perform any duty of the Judge. Pie cannot sit or act in his absence, and he cannot act in his stead, or perform any duty except that of an assistant in preparing opinions and other legal work, which must meet the approval of the Judge himself. Certainly he was not a deputy as contemplated by the statute.

In the case of Guthrie Daily Leader Ar. Cameron, supra, the Supreme Court of this state, in defining a public officer, said:

“A public office is the right, authority, and duty created and conferred by laAV, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, either executive, legislative, or judicial, to be exercised for the benefit of the public; and unless the pOAvers conferred are of this nature the individual is not a public officer.”

See, also, Oklahoma City v. Century Indemnity Co., supra; and State v. Sowards, supra.

Having held that Mr. Ballaine is not a public officer as contemplated by the statute above quoted, we are of the opinion that he does not come within the provision of receiving two salaries for his duties as special prosecutor. His appointment was for a special matter. He was no doubt appointed by reason of his familiarity with this case, as hereinbefore set out. He was neither elected nor appointed for a definite time, nor was he required to furnish bond for the faithful performance of his duties. There was no fixed salary or compensation. He was not holding any other “office” as contemplated by the statute. The statute appointing three district judges in this state as members of the Court of Tax Review, and who draw “compensation” in the form of traveling and living expenses while performing the duties of that office, would not, in our opinion, come within the provision of the statute above quoted. And they are public offices. 89 A.L.R. 1122; People ex rel. Attorney General v. Provines, supra; Hutchins v. Des Moines, 176 Iowa, 189, 157 N.W. 881; Maples v. Road Improv. Dist., 137 Ark. 177, 208 S.W. 577.

We next consider the contention that Mr. Ballaine did not qualify as such special county attorney, because the record does not disclose that he filed an oath of office. There is nothing in the record to show that he did not do so. There is a presumption of the regularity of all proceedings, and in the absence of any proof that he did not qualify in accordance with the law, it will not be held that he did not so qualify. Bethel v. State, 8 Okla. Cr. 61, 126 P. 698.

Instead of a strict technical construction of the statute, that it was necessary for the record to affirmatively show that a hearing was had as to the disqualification of the county attorney, and that Mr. Ballaine executed an oath of office which was properly filed, we adopt the expression used in the Hisaw Case, supra, where it is said:

“We conceive it our duty therefore, to give the foregoing statute a broad, practical, and common-sense construction in order to carry into effect the purposes for which it was enacted, and to give expression to this inherent power of courts of general jurisdiction in this state.”

There is nothing in this record to show that defendant was in any way prejudiced by the appointment of Mr. Ballaine as special county attorney. His conduct and handling of it were above reproach. There are some few facts in the Hisaw Case a little different from those here presented, but the principles of law involved are the same. By reason of the facts hereinbefore stated, we are of the opinion that the court did not commit error in appointing Mr. Ballaine as special county attorney.

It is next contended that the court erred in appointing Mr. Byers assistant to the special prosecutor. The record in reference to this is as follows:

“Mr. Moore: * * * and the defendant further objects to the appearance of Mr. Byers, special prosecutor for the reason that his appearance is not authorized by law and is in violation of the legal constitutional rights of this defendant. Mr. Ballaine: I employed Mr. Byers to assist me, and if the court feels it is necessary. I would like to have you appoint him too, as special prosecutor. The Court: Very well: At your request, Mr. Byers will be appointed to assist you. Mr. Moore: Exception.”

This objection, it seems to us, is technical. We fail to find anything in the record, and nothing has been called to our attention, indicating that the actions of Mr. Byers were in any way prejudicial to the rights of the defendant. In fact, the record does not disclose any particular activity of Mr. Byers in the prosecution of the case. The case of Mahaffey v. Territory, supra [11 Okla. 213, 66 P. 343], cited by defendant, is not applicable to the facts here presented. In that case, an attempt was made by the Territorial distinct judge to appoint an assistant to the regularly elected count attorney for the reason that the county attorney “is a young gentleman without experience as an attorney at law, never having practiced before the circuit or district courts.” This was an attempt to substitute the assistant for the regularly constituted county attorney, without any showing of his disqualification in the particular case, and giving the assistant full and complete powers and duties which the law imposed on the regular county attorney. The court held that the district judge did not have this power and that he did not have the right to appoint an assistant county attorney, as the law gave that right to the county attorney himself. In the instant case, the appointment of Mr. Byers was made at the request of the special county attorney.

It is next contended that the court erred in overruling defendant’s application for a continuance.

This application was based upon the absence of the witnesses Louis Brown and Doc Marrs, who, with Sam Marrs, were the parties who stole the property which defendant was charged with receiving. The court heard the motion for continuance, and permitted the introduction of testimony, and also admitted in evidence a letter written by Louis Brown to the defendant, dated November 22, 1941. The defendant testified at this hearing, as did others, including Mr. Ballaine, the special county attorney.

It was revealed tliat the motion for continuance was filed March 29, 1943, the date the case was set for trial. A subpoena had been issued for the Avitnesses Louis Brown and Doc Marrs on March 24. 1943, and returned unserved.

It was shown by the evidence that the wife of the witness Brown' lived in Pawnee county. She was the daughter of T. Marrs, and a sister of Sam and Doc Marrs. The letter hereinbefore referred to had been written to the defendant by the witness Louis Brown on November 22, 1941, and subsequent to the first trial of this case. At the first trial, BroAvn had testified for the state, and in this letter he repudiated a part of the testimony given by him, stating that it Avas given by reason of promises made to him by certain officers that he would not be punished if he Avould testify against the defendant Lizar; and giving that as his reason for giving false testimony against Lizar. The defendant himself testified that he had seen Louis Brown on the streets of PaAvnee two or three weeks prior to the date of the trial. That he had never at any time talked with Brown about the letter he had received from him, and did not know “rvhat he would testify, on account of the promises made to him.”

Mr. Ballaine testified that the Avitness Brown had been absent from his home in Pawnee for the last eight months or so nearly all of the time, except as he had come home on week ends, and that his wife and child were at the home of T. Marrs, his father-in-law. That he had talked with Brown about two months prior to the trial, and told him it would be necessary for him to be a witness on behalf of the state, and Brown had said he would be there when needed. That he had caused a subpoena to be issued for him, but he could not be found, and that he had made inquiry of his folks as to where he could be found, and they said they did not know. Mr. Ballaine made certain statements as to what he thought Brown would testify to, but it is not necessary to state them here, as they were probably not considered by the court.

It was also revealed that the case had been set for trial once before this date since it was reversed, and had been continued. Defendant did not have a subpoena issued for the witness at that time.

As to the witness Doc Marrs, Mr. Ballaine testified that he was a young boy about 14 years of age, and did not know anything about the case as to whether or not Bill Lizar was involved; and that he had not lived in Pawnee county for three or four years.

The law is well settled in this state that the granting or refusal of a continuance rests within the sound discretion of the trial court, and unless that discretion has manifestly been abused, the court’s action will not be set aside. It is our opinion that the facts above stated and as revealed by the record do not show that the court abused its discretion in this instance. The court was justified in finding that the defendant had not used due diligence in attempting to secure the testimony of these witnesses. The statements heretofore made reveal this fact. The letter attached to the motion was dated November 22, 1941, and the second trial of defendant was November 29, 1943. The case was reversed and the mandate sent back to Pawnee county on June 30, 1942. The case had been continued one time after it was sent back.

There was probably another reason considered by the court, and that was that the witness Brown was attempting to change his testimony from that given at the former trial. We have fully discussed that question and cited many authorities in the case of Whitworth v. State, 80 Okla. Cr. 239, 158 P. 2d 364. It is unnecessary to quote therefrom. We are of the opinion that the court did‘not err in overruling the motion for continuance.

It is next contended that the court erred in sustaining an objection to competent, relevant and material testimony offered by defendant.

' This contention is based upon the refusal of the court to permit the defendant to introduce in evidence a letter written by the witness Brown to defendant, and to which reference has heretofore been made. It is very clear that this testimony was hearsay and inadmissible. We also call attention to the fact that this case was reversed for the very reason that the court permitted the state to introduce in evidence against the defendant, a letter written by this same witness to the defendant, on the ground that it was hearsay and inadmissible. The case of Little v. State 72 Okla. Cr. 273, 115 P. 2d 266, cited by defendant, does not sustain defendant’s contention.

It is finally contended that the court erred in admitting incompetent, irrelevant and prejudicial testimony.

This contention is based upon certain questions asked the defendant with reference to statements made by him in the sheriff’s office at Pawnee just prior to his arrest and in the presence of a number of officers. Mr. Harmon, sheriff of Pawnee county, was questioned with reference to a conversation, and replied:

“A. Bill Lizar was asked where he got the roan cow, and he said he worked for her and got her from the man. Q. Was he asked who that man was? A. Yes sir, I think so — I think he was. Q. What did he say? A. I believe he made the remark that the lawyer would talk for him.”

Certain questions with reference to this were asked the defendant while he was on the witness stand, as to why he did not tell from whom he got the cow. He testified that his refusal to tell was on the advice of his lawyer who was just outside the room at the time of the conversation. Of course, the defendant had the right to refuse to answer questions at that time, as advised by his counsel. He had not been placed under arrest, but was detained for investigation by the officers, and was placed under arrest immediately following this conversation. From an examination of the record, we do not find that the questions asked the defendant were so prejudicial to him as to require a reversal of this case. The jury was given the benefit of his answer that his counsel had told him before he entered the room that he did not have to answer any questions and for him not to do so. We do not think the jury was prejudiced by reason of the questions asked and the answers given.

We have given this case very careful attention and consideration. Roth the defendant and the state have filed able briefs. This defendant has been twice tried before a jury of his home county, and twice convicted. The evidence, especially with reference to the identification of the cow, which it is charged defendant received, was conflicting. This was a matter for the proper consideration and final determination of the jury. An examination of the record reveals that they were justified in the conclusion which they reached.

We do not find any error in this record which would justify a reversal of the case, under the law.

For the reasons above stated, the judgment and sentence of the district court of Pawnee county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    JACK ROBERTS v. STATE.
    No. A-10233.
    Feb. 13, 1946.
    (166 P. 2d 111.)

      John W. Tyree, of Lawton, A. J. Morris, of Anadarko, and C. H. Gilmer, of Kerrville, Tex., for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Jack Roberts, was charged in the district court of Comanche county with the crime of manslaughter in the first degree; was tried, convicted of said offense, and sentenced to serve five years in the State Penitentiary, and has appealed.

This is one of the most tragic cases we have ever reviewed. The defendant, a young man of excellent reputation, was reared on a ranch near Uvalde, Tex. At the outbreak of the recent World War, he enlisted in the United States Army, and was sent for training to Fort Sill, Okla., at which place he was located at the time of the commission of the alleged homicide.

The deceased, Sam Henderson, was a highway patrolman stationed at Lawton, Okla. He was one of the outstanding officers in the patrol and was well liked by all who knew him. The author of this opinion and the deceased attended the University of Oklahoma together and had been close personal friends for 20 years prior to his death. He was a large, impressive appearing man, weighing approximately 275 pounds, and his death has been keenly felt by the members of the Highway Patrol and his many other friends.

The information set forth two counts. The first count charged that the defendant, while operating an automobile in an intoxicated condition, did run into and strike the deceased with such force as to cause his death. The second count charged that the defendant, while operating his automobile in a reckless and careless manner, did drive his automobile into the deceased with such force as to cause his death.

After the conviction of the defendant, by agreement of all parties concerned, he was granted permission to go overseas with his combat unit. Several months ago, the commanding officer of his company wrote this court from overseas, stating that the defendant was one of the outstanding soldiers in his company and inquiring as to what disposition had been made of his appeal. Because the defendant was absent from the state and unable to respond' to any judgment that might be rendered, this court was very liberal in allowing both the representatives of the . state and the defendant considerable additional time in which to file respective briefs. It was only recently that all briefs were filed and the cause submitted for decision.

The original brief presented on behalf of the defendant covered 120 pages and presented many assignments of error. A large part of the brief was devoted to the contention that the evidence was insufficient to sustain the conviction. We shall not make an extensive review of the evidence.

Under the proof of the state, the deceased and his associate patrolman had stopped an automobile driven by one Inks on Lee street, in the city of Lawton, about 10:30 p. m., on May 7, 1941. The patrol car was stopped just behind the Inks car. The two patrolmen and Inks were standing at the rear of the Inks car with the deceased standing slightly to the north of the line of the two cars. The road at that place was muddy and full of chug holes. While they were standing in this position, the automobile driven by the defendant came by at a high rate of speed and struck the deceased with such force that he was killed. The defendant did not stop his automobile, but drove it on to a tavern where he stopped and later caught a taxi back to his barracks at Fort Sill. Upon his arrest two hours later, he was in an intoxicated condition. The two companions, who were traveling in the same car with the defendant at the time of the alleged homicide, testified on behalf of the state. They were friendly to the defendant and both of them swore that they did not know that the defendant had ever struck anything and that he was not intoxicated. They testified, however, that the defendant was driving the car pretty fast and that Lee street was full of chug holes to where they bounced a lot while driving over it. When the defendant and his companion Moore left the automobile at the tavern, the witness Combs remained in the back seat in an intoxicated condition. The state’s proof also showed that the defendant and his companions had been drinking beer at different places during the evening, prior to the time of the alleged homicide. One of the state’s witnesses, who lived on Lee street near the place where the accident occurred, testified that the road Avas narrow at the place of the collision and that there were several deep chug holes along the north side of the road.

On behalf of the defendant, the proof showed that he was not in an intoxicated condition prior to the time of the alleged homicide, but that he had drunk two or three glasses of beer during the three or four hours preceding the commission of the homicide. Witnesses, who saw the defendant at the time he left a dance hall in his automobile just before the deceased Avas struck, SAvore that he did not appear to be under the influence of intoxicating liquor. The defendant’s proof showed that after his automobile allegedly struck the deceased, he drove to the Little Orchid Tavern. That he Avas there several minutes during which he met some soldier friends and drank some whisky with them. That the drinking of this whisky on top of the beer which he had drunk earlier in the evening did cause him to become intoxicated, and that when he was arrested two hours later in his bunk at the military reservation, he was still suffering from the effects of the whisky Avhich he had drunk Avith the other soldiers at the Little Orchid. The defendant himself swore that he did not know that he had ever struck anyone Avith his automobile. He testified that after he came over a rise in the road he saw the tAvo automobiles parked along the road and that he was driving at a pretty fast rate of speed. That he hit a chug hole just as he came near the cars that caused him to veer towards the cars, but that he righted his car and did not know that he had ever hit any one. A large number of witnesses from the State of Texas attended the trial and swore to the good reputation which the defendant bore in his home community.

We have only attempted to make a sufficient summary of the evidence to show that the position of the defendant that there was no evidence to sustain the conviction is untenable.

It is contended that the court erred in refusing to give an instruction on manslaughter in the second degree requested by the defendant.

It is well settled that in a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury. Atchison v. State, 3 Okla. Cr. 295, 105 P. 387; Kent v. State, 8 Okla. 188, 126 P. 1940; James v. State, 14 Okla. Cr. 204, 169 P. 1127; Mead v. State, 65 Okla. Cr. 86, 83 P. 2d 404; Hodges v. State, 65 Okla. Cr. 277, 85 P. 2d 443; Tucker v. State, 66 Okla. Cr. 335, 92 P. 2d 595; Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481; Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981; Smith v. State, 59 Okla. Cr. 111, 56 P. 2d 923, 924.

In Smith v. State, supra, it is stated:

“In the trial of a charge of murder it is the duty of the trial court to determine as a matter of law whether there is any evidence tending to reduce the crime to the lower degrees of homicide, and, if so, it becomes his duty to instruct the jury the law of such lower degree.”
“When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.”
“Where there is evidence, which tends to reduce the degree of the homicide from murder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct the jury the law of each degree which the evidence tends to prove.”

By statute, it is provided:

“When it appears that a defendant has committed a. public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degree [s] only.” 22 O. S. 1941 § 837.

Manslaughter in the second degree is defined as follows :

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.” 21 O. S. 1941 § 716.

This court has had this statute under consideration in many appeal cases involving homicides growing out of the operation of automobiles.

The case of Nail v. State, 33 Okla. Cr. 100, 242 P. 270, was similar to the case at bar. There, a conviction for manslaughter in the second degree was sustained. This court held that the jury did not find the facts necessary to sustain a conviction for murder or manslaughter in the first degree, but they did find that the death of the deceased was caused by the act of culpable negligence of the defendant. In defining culpable negligence, this court stated:

“ ‘Culpable negligence’ is the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.”

The court also said:

“The driving of an automobile upon the highway, with a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.”

In the case of Clark v. State, supra [63 Okla. Cr. 138, 73 P. 2d 482], the deceased was killed by a truck driven by defendant. This court stated:

“Where defendant is charged in the information with the crime of murder, if the facts warrant, it is not only proper for the court to instruct the jury in reference to manslaughter in the first and second degree, but it is his ■duty to do so.”

In that case, as in the instant case, the defendant was charged with driving his automobile while under the influence of intoxicating liquor at the time of the alleged homicide. On the issue as to whether the defendant was intoxicated at the time of the collision, the evidence ivas in conflict, the same as in the instant case. There would have been sufficient evidence for the jury to have concluded in either case that the defendant was intoxicated or that he was not intoxicated. This court there held that the court properly submitted the issue of manslaughter in the second degree, as the jury, under the evidence, could have found that the defendant was not intoxicated at the time of the commission of the alleged homicide, but that he Avas guilty of culpable negligence in the operation of his automobile. See, also, the following cases: Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412; Freeman v. State, 69 Okla. Cr. 164, 101 P. 2d 653; Wilson v. State, 70 Okla. Cr. 262, 105 P. 2d 789; Ansley v. State, 44 Okla. Cr. 382, 281 P. 160; Walters v. State, 57 Okla. Cr. 424, 48 P. 2d 875; Chandler v. State, 79 Okla. Cr. 323, 146 P. 2d 598; Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285; Sprouse v. State, 52 Okla. Cr. 184, 3 P. 2d 918; Herndon v. State, 38 Okla. Cr. 338, 201 P. 378; Smith v. State, 46 Okla. Cr. 160, 287 P. 1103.

In Wilson v. State, supra, it is held:

“The driving of an automobile upon the highway, with a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.”
“There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence.”

In the body of the opinion, it is stated:

“It may, however, be stated, that a violation of this statute does not depend on one being under the influence of intoxicating liquor at the time of its violation. One may be guilty of culpable and criminal negligence regardless of the fact as to whether he was drinking or not. An automobile in the hands of a person who handles the same in a reckless and careless manner, and in an utter disregard of the lives of others, is just as guilty under the statute as one who handles it while in an intoxicated condition. The degree of punishment may be different, but the guilt and responsibility is just the same.
“The evidence in this case reveals that this defendant Avas not driving her automobile, as provided by the statute, at a careful and prudent rate of speed, such as would be reasonable and proper, and having due regard to the traffic and'condition of the road, and in such a manner, and under such control that if danger appeared she could bring it to a stop within the assured clear distance ahead.”

In the instant case, the proof of the state showed that the street on which the homicide occurred was full of mud holes and. that the car of the defendant was being driven at a speed of from 40 to 50 miles per hour. This case was prosecuted on the theory that it was manslaughter in the first degree under the statute which provides that homicide is manslaughter in the first degree when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor. 21 O. S. 1941 § 711. The misdemeanor relied upon the prosecution was that the defendant, at the time of the homicide, was operating his automobile while he was in an intoxicated condition. 47 O. S. 1941 § 93. If the jury had seen fit to accept the testimony offered on behalf of the defendant, they would have been justified in finding that the defendant was not under the influence of intoxicating liquor at the time of the collision. Yet, they could have held, under the evidence, in considering the condition of the road, the position of the two cars which were stopped on the road, and the speed at which it is alleged the defendant was driving, that he was guilty of culpable negligence in the operation of his automobile. Under such circumstances, we think the court committed reversible error in refusing to give an instruction on manslaughter in the second degree at the request of counsel for the defendant.

There is another cogent reason why the trial court should have submitted the issue of manslaughter in the second degree. As stated above, the information filed against the defendant contained two counts. The first count charged the defendant with the crime of manslaughter in the first degree and alleged that the defendant killed deceased while committing a misdemeanor, to wit, driving an automobile while under the influence of intoxicating liquor. The second count of the information charged the defendant with the crime of manslaughter in the second degree, in that it charged the defendant with driving and operating Ms automobile upon the public streets of Lawton, Olda., at a bigb rate of speed and with a reckless disregard for the safety of others.

By statute, it is provided:

“The indictment or information must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same county.” 22 O. S. 1941 § 404.

Since the county attorney charged the defendant in the information with two counts of manslaughter, and the court did not require him to elect which of the two counts he was relying upon for a conviction, it certainly became the duty of the court to submit the issues covered by the information to the jury for their determination. Under such circumstances, since manslaughter in the second degree was charged in the second count of the information, it was the court’s duty to submit the question of the guilt or innocence of the defendant of such offense by proper instructions.

Several photographs taken the day following the alleged homicide were admitted in evidence over the strenuous objections of counsel for the defendant. The photographer testified that the pictures faithfully represented whatever each of them purported to reproduce.

The witnesses Inks and Kizziar testified that the following day they drove Inks’ automobile and the highway patrol car to the exact point where they were sitting at the time the deceased was struck by defendant’s automobile. They, also, testified that the positions they assumed in some of the pictures were the exact positions at which they were standing at the time the patrolman was struck.

In Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981, 982, this court held:

“When a photograph is shown to be a faithful reproduction of whatever it purports to reproduce, it is admissible in evidence, as an appropriate aid to the jury in applying the evidence and this is equally true whether it relates to persons, things, or places.”

■ See, also, Morris v. State, 6 Okla. Cr. 29, 115 P. 1030, to the same effect.

The general rule concerning the admission of photographs in evidence is stated in Wharton’s Criminal Evidence (11th Ed.) section 773, p. 1317, as follows:

“It is too well recognized to admit of any doubt that in proper cases, photographs or pictorial representations of physical objects or localities are admissible in evidence. The principle of admitting this kind of evidence is but a corollary to that permitting the introduction of the physical object itself. Stated as a general rule, the proposition is that photographs are admissible in evidence when they are shown to have been accurately taken, to be correct representation of the subject in controversy, and where they tend to illustrate any material fact in the case, or to shed light upon the transaction before the court.”

As to posed photographs taken some time subsequent to the time in controversy, based on recollection of witnesses, it is stated:

“There is a decided conflict of authority as to whether or not photographs of an attempted reproduction of the scene of a crime showing posed persons, dummies, or other objects are.admissible to illustrate the contention of the party offering them as to the relative positions of the movable objects so represented at the time and place of the crime involved in thé prosecution under consideration. Some courts have looked with disfavor upon the admission of photographs of an attempted theory or contention of the party offering them, as recalled by his witnesses, of movable or moving objects. Thus, it was held error to introduce in evidence in a prosecution for murder photographic representations of tableaux vivants carefully arranged by the chief witness for the State, intended to exhibit the situations of the parties and the scene of the tragedy according to such witness’s account of it. * * * In most jurisdictions where this question of admissibility has arisen, however, the courts have held such photographs admissible, when a proper foundation therefor has been laid by preliminary testimony showing that the objects and situations portrayed are faithfully represented as to position. The holding of these cases has been elucidated by one court, in a case in which it held admissible a photograph of the interior of a saloon in which a shooting occurred showing a group of prearranged figures to indicate the position of the principal parties at the time of the homicide as near as the witness could determine, as follows: ‘It has always been permissible to use diagrams in the trial of causes, both civil and criminal, and especially in the latter class to use diagrams, if shown to be correct, to illustrate the position of persons and places, and to better enable the witnesses to properly locate them. If, then, a diagram may be used for such a purpose, we can see no good reason why a photograph may not be, by which is presented to view everything within the range of the camera at the time the photograph is taken. This did not deprive the defendant of the right to cross-examine the witnesses who testified to its correctness, and as to the positions of the persons in the saloon, or its fixtures. He had the same right in this regard that he would have had, had a diagram been used instead of the photograph.’ ”

The defendant contends that the Supreme Court has established a rule that photographs taken for the purpose of illustrating the theory of either party to a lawsuit are incompetent and inadmissible, citing Colonial Refining Co. v. Lathrop, 64 Okla. 47, 166 P. 747, L. R. A. 1917F, 890, and Massey v. Ivester, 168 Okla. 464, 33 P. 2d 765.

In Colonial Refining Co. v. Lathrop, supra, the Supreme Court held:

“The probative value of photographs depends upon their accuracy. They must be shown by extrinsic evidence to be faithful representations of the place or subject, as it existed at the time involved in the controversy. And photographs taken to show more than this, with men in various assumed positions, and things in various assumed situations, intended only to illustrate hypothetical situations, and to explain certain theories of the parties, are incompetent.”

In Massey v. Ivester, supra, it is stated:

“Photographs purporting to depict the conditions at the point of accident may be admitted in evidence, if it is proven or admitted that the objects surrounding the scene' of the accident are in the same condition as they were at the time of the acts complained of, but may not be admitted as a ‘stage setting’ for the purpose of re-enacting the accident.”

To the same effect, see Empire Oil & Refining Co. v. Fields, 188 Okla. 666, 112 P. 2d 395.

In connection with this question, it is interesting to note that in the case of Missouri Pacific Railroad Co. v. Steel, 141 Okla. 133, 284 P. 21, 22, our Supreme Court laid down the following rule of law:

“Photographs of the scene of an accident, when ac~. companied by proper proof of their accuracy and correctness, are admissible in evidence for the consideration of the court and jury, but their accuracy and correctness are not irrefutable, and, where evidence has been received to the effect that such photographs are accurate and correctly represent a certain scene of accident, though taken some time thereafter, it is not error for the court to permit opposing evidence by a witness properly qualified to the effect that such photographs do not correctly represent the scene at the time of such accident and pointing out the alleged inaccuracies.”

We shall adhere to the rule of law adopted by the Supreme Court that photographs taken for the purpose of illustrating some hypothetical situations which might arise are inadmissible, but unless some of the photographs herein admitted come within this prohibition, the court did not err in admitting them in evidence. Exhibits D, E, E, and G were clearly admissible. The only photographs to which objection might be seriously urged are those set forth in the State’s Exhibits A, B, and C. The testimony of the photographer, when considered together with that of the witnesses Inks and Kizziar, justified the admission in evidence of Exhibits A and B, as they show the condition of the road the following day after the homicide at the particular place where the homicide occurred, and show, according to the witnesses, the exact location of the Inks car and the highway patrol car on the road at the point where they were at the time of the collision and the exact place Inks and Kizziar were standing when the deceased was struck. Exhibit C, under the rule herein above announced and with no further explanation concerning it than appears in the record, would be inadmissible as a stage setting to bolster the hypothetical theory of the state. Although the automobiles of Inks and Kizziar are situated at the exact spot where they sat the preceding night at the time of the alleged commission of the homicide, this exhibit shows a dummy placed on the ground some distance to the rear of the highway patrol car, and Kizziar and Inks are standing in the picture in a position different to that which they were standing at the time the deceased was struck. There is, also, a third car in the picture which is not identified but is stopped close to the body of the dummy which purportedly represented that of the deceased after he had been knocked several feet through the air. Both Kizziar and Inks admitted that they were not looking at the deceased at the time he was struck, and this photograph evidently was taken with a view of sustaining their hypothetical theory that the deceased had to have been in a certain position at the time he was struck in order to crack the windshield in the patrol car. Upon a re-trial of this case, unless the testimony concerning this particular exhibit C is clarified, so as to make it admissible under the rule herein above announced, it should not be admitted in evidence.

The questions raised by the defendant in regard to the objection to the special venire, and objection to having the case set specially at a time when it was the only case to be tried and their contention that the testimony of Major Grayeb was improperly used in rebuttal, need not be considered as those questions will not arise upon another trial.

A consideration of the information shows that it is not duplicitious and that the court properly overruled the demurrer thereto. Clark v. State, supra.

For the foregoing reasons, the judgment of the district court of Comanche county is reversed and this cause is remanded for a new trial.

BABEFOOT, J., concurs. DOYLE, J., not participating.


text:
    CHARLEY JONES v. STATE.
    No. A-10535.
    Feb. 20, 1946.
    (166 P. 2d 443.)

      Harold S. McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Ewing C. Sadler, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Charley Jones, was charged in the court of common pleas of Tulsa county with the unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and costs, and has appealed.

The sole issue for determination by this court is whether the search and seizure of the intoxicating liquor was unreasonable and the evidence obtained thereby inadmissible over the objection of the defendant.

There is no dispute about the facts. Two highway patrolmen and a garage man were proceeding north on Highway 11 in Tulsa county, when they saw defendant’s car parked on a section line road about three-quarters of a mile off of the highway. They turned off the highway onto the dirt road to investigate. Shortly before the patrolmen reached the automobile, the defendant, who was the driver of the parked automobile, started it and commenced driving it toward the patrol car. The highway patrolmen testified that they turned on their red warning light and stopped. That the defendant attempted to drive around their car and one of the patrolmen jumped onto the fender of the defendant’s automobile and jerked the ignition keys out of the switch, forcing the defendant to stop his car. On the floor behind the front seat, the patrolman saw a one-gallon jug containing a clear, transparent liquid. The patrolman testified that he asked the defendant what was contained in the jug and the defendant gave no reply. Whereupon, the patrolman took hold of the jug, pulled the cork, took a smell and pronounced the contents as being corn whisky. The filing of these charges followed such disclosure.

In Bowen v. State, 50 Okla. Cr. 36, 295 P. 623, this court held:

“A search of an automobile without a search warrant and not as an incident of a legal arrest, not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of article 2, § 30, State Const., and evidence obtained by such a search is inadmissible.”

In Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219, it is stated:

“The search of the car without a warrant of arrest or search warrant, or knowledge by the officer that it contained whisky, held illegal, and evidence should be excluded upon timely objection.”

See, also, Hamner v. State, 44 Okla. Cr. 209, 280 P. 475; Thomas v. State, 32 Okla. Cr. 57, 240 P. 133; Taylor v. State, 36 Okla. Cr. 431, 255 P. 157; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 603; Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, 434.

In the case of Hoppes v. State, supra, this court reversed a conviction in the county court of Pontotoc county and held a search of the automobile in that case was unlawful. The following rules of law were set forth in the syllabus of that case:

“Where an offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted to be committed in officer’s presence.
“A peace officer may arrest without a warrant in the case of a misdemeanor only where it is committed or attempted in his presence. And where the officer does not know of the act constituting the offense it is not committed in his presence.
“Whether a search of or seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the constitutional provision, forbidding unreasonable searches and seizures, is a judicial question to be determined in each cáse in view of all the facts and circumstances under which the search or seizure is made.
“A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of Bill of Rights, sec. 30, and evidence obtained by such a search is inadmissible. Const. Art. 2, sec. 30, Okla. St. Ann.
“Where an officer, after lawfully stopping or restraining a person, becomes aware that an offense is being committed or is about to be committed in his presence, he may lawfully arrest the offender without a warrant, but where the officer becomes aware of the facts constituting the offense after making an unlawful arrest, the arrest cannot be justified as being for an offense committed in his presence.
“Officers without warrant stopping and searching an automobile on public highway must possess knowledge or information of facts constituting probable cause for reasonable belief that automobile contains illegal liquor.”

In the instant case, the officers were merely suspicious of the defendant’s automobile being parked on the dirt road three-quarters of a mile off of the highway. They started towards it to investigate it because of their suspicions. They did not become aware that an offense was being committed by the defendant until they had stopped his automobile and opened the jug which they found behind the front seat and discovered that it contained whisky.

We think under these facts the court erred in admitting the evidence obtained by the search over the objection of counsel for defendant. The evidence having been obtained unlawfully and in violation of the defendant’s constitutional rights, it follows that the judgment of the court of common pleas of Tulsa county should be reversed and the defendant discharged.

It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: BAREFOOT, J.

text:
    L. E. LAMPLEY v. STATE.
    No. A-10489.
    Feb. 20, 1946.
    (166 P. 2d 445.)

      See, also, 82 Okla. Cr. 101, 166 P. 2d 448.
    S. E. Dunn, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam EL Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, L. E. Lampley, was charged in the court of common pleas of Tulsa county with the offense of requiring and permitting one Joan Ward, a female person, to work in a cafe managed and operated by defendant “more than fifty-four hours in one week, to wit: eighty-four hours, that is to say, from and inclusive of August 1, 1943, to and inclusive of August 7, 1943, being from 7:00 o’clock a. m. on each date to 7:00 o’clock p. m. on each date.” He was tried, convicted, and sentenced to pay a fine of $100, and has appealed.

It is contended that the evidence of the state is insufficient to sustain the verdict of the jury, and the judgment and sentence rendered. The statute under which this charge was filed is 40 O. S. 1941 § 81, and is as follows:

“That no females shall be employed or permitted to work in any manufacturing, mechanical or mercantile establishment, laundry, bakery, hotel or restaurant, office building or warehouse, telegraph or telephone establishment or office or printing establishment, or book bindery, or any theatre, show-house or place of amusement or any other establishment employing any female, more than nine (9) hours in any one day, nor more than fifty-four (54) hours in any one week.”

The state placed upon the Avitness stand two witnesses, Mrs. Joan Ward and Mrs. lone Crabbe. Mrs. Ward testified that she was employed by the defendant to work in his restaurant in the city of Tulsa. That she worked the last week in July and the first two weeks of August, 1943. That Mrs. Crabbe, who was working out of the Department of Labor at Oklahoma City, came to the Swing Shift Cafe where she worked on or about the 31st day of July, 1943, and that this was the first time she had ever seen or known her. That she heard a conversation between Mrs. Crabbe and the defendant, and testified relative thereto:

“A. Well, he told her and I that he was working us twelve hours a day, that he wasn’t in the right spot, and when he got where he could do better, that he would get more girls in and not work us so many hours as he had been working us.”

She testified that some time after this she saw Mrs. Crabbe again at the cafe. That she worked at the cafe for defendant from 7 a. m. to 7 p. m. from August 1st to and including August 7, 1943. On cross-examination she testified that the defendant told her to sit down and rest, but that she waited on the trade from 7 a. m. to 7 p. m., and ‘Ve could sit down and rest awhile, but when you see a lot of people coming into the place there you wouldn’t feel like you could sit down on the job.”

Mrs. Crabbe testified that she had been working out of the State Department of Labor for seven years in charge of the protective laws for women and children. That in such capacity she visited the place of business of the defendant on July 31, 1943. That she had an extended conversation with the defendant and Mrs. Joan Ward was present. She advised the defendant that complaint had been made to the Labor Department that he was working girls overtime, and asked him if he was, “and he said that he was, that he needed to work them twelve hours a day, and that he expected to work them twelve hours a day, and he didn’t know who was going to stop him from doing it.” She asked him about letting Mrs. Joan Ward go home and rest, “and he said he could-n’t do it, he had to have her there.” That Mrs. Ward told her in his presence that she worked from 7 o’clock in the morning until 7 o’clock at night. That she told him if he was going to operate his cafe, he would have to operate it under the law, and he would have to adjust hours on the girls. That she returned about August 16th and found that Mrs. Ward and other girls were still working 12 hours a day, and that she then filed the charges as above indicated.

Defendant and his wife and Mrs. Marie Pappan, who worked for defendant, testified in his behalf. Defendant testified that he gave Mrs. Ward and the other girls time off for rest, and that they did not work during a three or four hour period each day. On cross-examination his testimony was somewhat confusing with reference to this point. Mrs. Ward testified on rebuttal that she worked from 7 a. m. to 7 p. m., during the week of August 1 to August 7, 1943.

From the above statement, it clearly appears that there is a conflict in the evidence, as to whether Mrs. Ward was given a rest period during the time she worked as alleged in the information. It is contended that by reason of 40 O. S. 1941 § 82, which gives certain exceptions to the statute above quoted, the present case comes within that exception. That part of the statute to which reference is made is as follows:

“That in case of emergency in hotels and Restaurants, females may work a maximum of ten (10) hours during the twenty-four with their consent; such females to be paid not less than double their regular compensation for such extra time.”

There is nothing in the record which shows that the instant case comes within the exception. The argument that the World War created such an emergency as to bring this defendant within the exception cannot be maintained. Defendant in his brief states that the Labor Department “has since been granting special permits to employers to work female employees more than nine hours per day, and more than fifty-four hours per week.” The record does not disclose any such proof, and we know of no reason why any department would have the authority-to suspend or alter a law of this state by making such an order. The Department might not see fit to prosecute or file charges under existing facts or circumstances, but it could not alter the law as enacted by the Legislature.

Under the facts as they appear in the record in this case, there was no error in the judgment and sentence rendered. Ex parte Carson, 33 Okla. Cr. 198, 243 P. 260.

It may be noted that four separate cases were filed against this defendant, all of which were decided against him, and have been appealed to this court. This case charges a violation of the 54 hours a week statute, and the other three cases charge a violation of the nine hours a day provision of the law. We are of the opinion that justice demands a modification of the judgment and sentence in this case from a $100 fine to the minimum fine of $50 and costs.

For the reasons stated, the judgment of the court of common pleas of Tulsa county, as modified, is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    L. E. LAMPLEY v. STATE.
    No. A-10527.
    Feb. 20, 1946.
    (166 P. 2d 450.)
    S. E. Dunn, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, L. E. Lampley, was charged in the court of common pleas of Tulsa county with the offense of requiring and permitting one Joan Ward, a female person, to work in his restaurant in the city of Tulsa more tlian nine hours, to-wit: 12 hours, from 7 a.m. to 7 p.m., on the 13th day of August, 1943. He was tried, convicted and sentenced to pay a fine of $50 and costs, and has appealed.

This is a companion case of Lampley v. State, 82 Okla. Cr. 95, 166 P. 2d 445. In that case this defendant was charged with requiring and permitting one Joan Ward, a female person, to work in a cafe managed and operated by the defendant more than 54 hours in one week, to wit: from and inclusive of August 1, 1943 to and inclusive of August 7, 1943, from 7 o’clock a.m. until 7 o’clock p.m., on each date.

The evidence and questions of law are identical in both cases, and the same statute, 4Ó O. S. 1941 § 81, covers both charges. One brief has been filed by defendant in support of his contentions.

For the reasons stated in the case of Lampley v. State, 82 Okla. Cr. 95, 166 P. 2d 445, the judgment and sentence of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    L. E. LAMPLEY v. STATE.
    No. A-10508.
    Feb. 20, 1946.
    (166 P. 2d 448.)

      S. E. Dunn, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, L. E. Lampley, was charged in the court of common pleas of Tulsa county ivith the offense of requiring and permitting one Esther Brock, a female person, to work in his cafe in the city of Tulsa, Oklahoma, more than nine hours, to wit: 12 hours, from 7 a.m. to 7 p.m., on July 24, 1943. He was tried, convicted and sentenced to pay a fine of $75 and costs, and has appealed.

This is a companion case of Lampley v. State, 82 Okla. Cr. 95, 166 P. 2d 445. In that case, this defendant was charged with requiring and permitting one Joan Ward, a female person, to work in a cafe managed and operated by the defendant, more than 54 hours in one week, to-wit: from and inclusive of August 1, 1943, to and inclusive of August 7, 1943, from 7 o’clock a.m., until 7 o’clock p.m., on each date.

The evidence and questions of law are identical in both eases, and the same statute, 40 O. S. 1941 § 81, covers both charges. One brief has been filed by defendant in support of this contention.

It may be noted that four separate cases were filed against this defendant, all of which were decided against him, and have been appealed to this court. This, and tivo of the other cases, charge defendant with the violation of the nine-hour a day provision of the statute, and one case charges him with the violation of the 54 hours a week provision thereof. We are of the opinion that justice demands a modification of the judgment and sentence in this case from a $75 fine to the minimum fine of $50, and costs.

For the reasons stated in the case of Lampley v. State, 82 Okla. Cr. 95, 166 P. 2d 445, the judgment and sentence of the court of common pleas of Tulsa county, as modified, is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    L. E. LAMPLEY v. STATE.
    No. A-10507.
    Feb. 20, 1946.
    (166 P. 2d 447.)

      S. E. Dunn, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, L. E. Lampley, was charged in the court of common pleas of Tulsa county with the offense of requiring and permitting one Esther Brock, a female person, to work in his restaurant in the city of Tulsa more than nine hours, to wit: 12 hours, from 7 o’clock a.m. to 7 o’clock p.m. on July 25, 1943. He was tried, convicted and sentenced to pay a fine of $50 and costs, and has appealed.

This is a companion case of Lampley v. State, 82 Okla. Cr. 95, 166 P. 2d 445. In that case, this defendant was charged with requiring and permitting one Joan Ward, a female person, to work in a cafe managed and operated by defendant more than 54 boars in one week.

The evidence and questions of law are identical in both cases, and the same statute, 40 O. S. 1941 § 81, covers both charges. One brief has been filed by defendant in supported of his contentions.

For the reasons stated in the case of Lampley v. State, 82 Okla. Cr. 95, 166 P. 2d 445, the judgment and sentence of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    BEULAH HENDRIX v. STATE.
    No. A-10540.
    Feb. 27, 1946.
    (166 P. 2d 785.)

      Ted R. Fisher and Allan Falkenstine, both of Wa-tonga, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Átty. Gen., and Anna Armstrong, Co. Atty., of Watonga, for defendant in error.
   BAREFOOT, J.

Defendant, Beulah Hendrix, was charged in the county court of Blaine county, with the crime of unlawful possession of intoxicating liquor, “approximately 12 gallons of beer or home-brew, a substance containing more than 3.2 per cent of alcohol measured by weight, and capable of being used as a-beverage.” She was tried, convicted, sentenced to pay a fine of $50, and to serve a term of 60 days in the county jail, and has appealed.

This case-made with petition in error attached was filed in this court on June 21, 1944. The Attorney General, on behalf of the state, filed a motion to dismiss the appeal on July 7, 1944, for the reason that the appeal had not been filed within the time provided by law. When this motion was filed, counsel for defendant filed a petition in the county court of Blaine county praying for an order nunc pro tunc, to correct the record to show that the application had been made to the county court, and that the court had ordered orally an extension of time to perfect the appeal of this case. After hearing this motion and taking evidence, the court denied the motion, and from this order counsel for defendant, after filing a motion for new trial, appealed to this court, and the record of these proceedings has now been filed in this court.

There is some conflict in the testimony as to just what occurred at the time an attempt was made to secure the order extending the time to serve the case-made. The state has not filed a brief in this case, relying only upon the motion to dismiss.

It is revealed by the record that the court reporter who reported this case lived at Lawton, Okla., in Comanche county, and that there was some difficulty in getting the case-made prepared. The case not having been briefed fully by the state, we are not passing upon the motion to dismiss or the right of defendant to appeal from the order of the court refusing to grant the nunc pro tunc order.

We have examined the record in this case and find that the judgment and sentence should be affirmed on its merits.

It is contended that the court erred in overruling a motion to suppress the evidence procured by the search warrant, and upon which this conviction was based. Evidence was taken and the motion was overruled. It is contended that the search warrant was a “blanket search warrant,” and for that reason void. The affidavit and search warrant upon which it was based described the property as follows:

“A two-story frame building located on lots 9, 10, 11, block 4, Enke Addition to the city of Geary, Blaine County, Oklahoma. * * *
“That the aforesaid premises is a building establishment, hotel, cafe, dance room and residence. * * * .”

The affidavit in addition to setting forth the grounds provided by statute and the facts with reference to the grounds for search, states that the defendant, “Beulah Hendrix, Cleo Rogers and Isabella Hendrix are the owners and in possession of the premises.”

The evidence taken on the motion to suppress, and also at the trial, reveals that the premises above described were being used as a rooming house, or hotel, a cafe, public dancing hall, and that certain rooms or apartments were rented to certain individuals and the defendant, Beulah Hendrix, owned and operated the same at the time the search was made. Cleo Rogers was the daughter of defendant, and occupied one of the rooms on the second floor. The record does not disclose any interest in Elizabeth Hendrix.

Based upon the search warrant, the sheriff of Blaine county, R. C. Scott, assisted by the city marshal of Geary, W. R. Grant, and three deputies from the sheriff’s office, searched the premises on the night of June 19, 1943. They found approximately 12 or 13 gallons of homebrew in two separate jars or containers. One containing about eight gallons was found in what was described as the southeast room downstairs, and one containing about four gallons located in the kitchen which was used in connection with the cafe owned and operated by the defendant; and also a small amount in the refrigerator that was in the kitchen. Samples were taken from each of the containers by the sheriff and sent to the office of the state laboratory, and there examined. That found in the southeast room was found to contain 5.32 per cent of alcohol by volume, and 4.25 per cent by weight; and that found in the southeast room contained 6.1 per cent alcohol by volume, and 4.87 per cent by weight, and all capable of being used as a beverage. There was also found in the southeast room a 100 pound sack of sugar, a small portion of which had been used.

A number of witnesses testified that the. southeast room was occupied exclusively by one Nelson Hill and his wife and child, and that the defendant did not have control of same, only to rent to the said Nelson Hill. They also testified that the door to this room opened on the outside, and that the doorways leading to the other part of the building were locked and fastened. The officers all testified that these inside doors were open on the date of the raid, and that passage from the dance hall, cafe, etc., could be made. •

The sheriff and other officers testified that the defendant was present at the time the search was conducted, and that when asked by the sheriff as to the ownership of the property seized both in the southeast room and the kitchen, she stated it was hers, and that the homebrew was hog feed which she had for hogs on the premises.

The evidence, while somewhat conflicting on minor matters, discloses many circumstances that the defendant was operating a public place where intoxicating liquor was being sold, and a number of witnesses testified that the premises had such a reputation. Facts were testified to by the officers upon which this testimony was based.

Much stress is made by defendant as to the occupancy of the southeast room by Nelson Hill and his family. We do not see that this makes much difference, for the reason that four gallons of homebrew were found by the officers in the kitchen, which, under the undisputed evidence, was in possession of the defendant. All of this testimony was for the consideration of the court on the motion to suppress, and for the jury on the trial of the case. The evidence was sufficient to sustain the judgment and sentence, and under the evidence on the motion to suppress, the court did not err in overruling the same. This place was being conducted as a roominghouse, public dance hall and cafe. The statute, 77 O. S. 1941 § 88, gives the right to search premises of this character upon the procurement of a search warrant based upon affidavit, which was done in this case.

The officers testified that they only searched the premises on the ground of the first floor. Upon the testimony of the defendant, all of this part of the building was in possession and operated by her, with the exception of the southeast room. The evidence with reference to her possession of that room was at least conflicting, and the conrt and jnry had the right to consider this conflicting evidence, and this court will not set aside the judgment and sentence where there is evidence to sustain, as in this case.

For the reasons above stated, the judgment of the county court of Blaine county is affirmed.

JONES, P. J., concurs, DOYLE, J., not participating.


text:
    BEULAH HENDRIX v. STATE.
    No. A-10541.
    Feb. 27, 1946.
    (166 P. 2d 787.)

      Ted R. Fisher and Allan Falkenstine, both of Wa-tonga, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Anna Armstrong, Co. Atty., of Watonga, for defendant in error.
   BAREFOOT, J.

Defendant, Beulah Hendrix, was charged in the county court with the crime of unlawful possession of intoxicating liquor, to wit: Approximately 12 gallons of homemade beer, a substance containing more than 3.2 per cent of alcohol measured by weight and capable of being used as a beverage.” She was tried, convicted and sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail, and has appealed.

This is a companion case of that of Hendrix v. State, 82 Okla. Cr. 105, 166 P. 2d 785. The same facts and questions of law are here involved. For the purpose of briefing, the cases were consolidated, and the same brief filed by defendant in both cases.

For this reason it becomes unnecessary to discuss either the facts or the law of the case; and for the reasons stated in the case of Hendrix v. State, 82 Okla. Cr. 105, 166 P. 2d 785, the judgment and sentence of the county court of Blaine county is affirmed.

JONES, P._ J., concurs. DOYLE, J., not participating.


text:
    STATE v. DOLA TYLER.
    No. A-10537.
    March 6, 1946.
    (166 P. 2d 1015.)

      Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and H. A. Kehn, Co. Atty., of Pryor, for plaintiff in error.
    Harve N. Langley and Ernest R. Brown, both of Pryor, for defendant in error.
   BAREFOOT, J.

Defendant, Dola Tyler, was charged in the county court of Mayes county with the offense of illegal fishing, and that he did “unlawfully take from Grand river, or tributary thereto, a channel cat fish with an illegal device, to wit: a gig, contrary to and in violation of section 261, title 29, Oklahoma Statutes, 1941.”

The defendant filed a demurrer to the amended information, but, at the request of the Assistant Attorney General, the same was not passed upon by the court until the evidence was offered by the state.

A jury was waived by all parties, and the case tried by the court. Four witnesses were presented by the state, two deputy game rangers, and two individual citizens of Mayes county. The testimony of these four witnesses was practically the same, and need not be considered separately. The facts were:

The defendant was fishing below the Grand River dam in Mayes county on April 25, 1944, as were numerous other parties. They were fishing in holes of water below the spillway, which ran into the bed of a former tributary of Grand river. The defendant, when arrested, had a cat fish weighing from five to seven pounds on a hook which he had just taken from the waters above described. The defendant was using a stiff pole about six or seven feet in length, with a cord about 15 feet long to which was attached a large (No. 10) hook. Just above the hook was what is known as a Hawaiian wiggler. There was no bait on the hook. The cord was strung through eyelets on the pole in such a manner that it could be pulled by hand until the hook reached the end of the pole, where it would be stationary. The fish defendant had taken from the water was caught with this hook, behind the gills. It had not swallowed the hook.

The evidence Was that the water was muddy, or murky, and that there were many fish, including carp, buffalo, and cat fish in the different holes between the dam and where the gates were closed. They were making every effort to go down stream in the water that was flowing from hole to hole. The game rangers testified that under the conditions existing, the fish would not strike, but were battling and “were fighting for their lives,” to get down stream. The game rangers testified that no one else was using a pole and line such as that used by defendant. They demonstrated with the pole and line, which were introduced in evidence, just how it was used by pulling the hook up to the end of the pole, and then dragging it through the water, and catching the fish in the side or gill.

The court, after hearing the evidence, sustained the demurrer to the information, and also sustained the demurrer to the evidence. From this judgment, the state has appealed on a reserved question of law. 22 O. S. 1941 § 1053. The court discharged the defendant, and under the decisions of this court, he cannot again be placed on trial. 22 O. S. 1941 §§ 508, 509.

We now consider the question of whether the court erred in sustaining the demurrer to the information, and the demurrer to the evidence.

It is conceded that a cat fish comes within the designation of a game fish, as provided by the statutes of this state, 29 O. S. 1941 § 262, which provides:

“Channel cat fish (also known as blue cat, forked tail cat, speckled cat or river cat), * * * are hereby declared to be ‘game fish.’ ”

The statute under which this charge Avas filed is 29 O. S. 1941 § 261, which provides:

“It shall be unlaAvful for any person to take or catch from any of the rivers, creeks, lakes or ponds of this State, or any privately OAvned ponds, which are stocked by State Hatchery Fish, any game fish * * * Avith any sort of net trammel, net seine, gun, trap, Avire or pot, snare or gig, * * # »

It is also provided by 29 O. S. 1941 § 263 (as amended in 1943, 29 O. S. Supp. 1945 § 263) :

“It shall be unlawful for any person or persons to take, catch or kill any game fish as defined in Section 15 of said Chapter 35 (Tit. 29 § 262), from- any of the streams, creeks, lakes, ponds or waters of this State other than privately owned ponds or lakes by any means, except with hook and line attached to a pole or rod, throw line or trot line; * *

This court has been liberal in construing informations or indictments, and has often held that they Avere sufficient if the offense is charged in the language of the statute. It has often been held that an information is sufficient if it informs the accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense, that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense. Simpson v. State, 67 Okla. Cr. 152, 93 P. 2d 511; Scott v. State, 10 Okla. Cr. 296, 268 P. 312; Newman v. State, 44 Okla. Cr. 137, 279 P. 980; Armour v. State, 72 Okla. Cr. 44, 112 P. 2d 1116; Daves v. State, 77 Okla. Cr. 313, 141 P. 2d 603; Ross v. State, 78 Okla. Cr. 293, 147 P. 2d 797.

We have held in some cases that the peculiar wording of the statute was such that it required the indictment or information to be more definite and certain to the end that the defendant could be brought within the rule announced above. Duggins v. State, 76 Okla. Cr. 168, 135 P. 2d 347; O’Neil v. State, 76 Okla. Cr. 107, 131 P. 2d 1033.

In this case the defendant was charged with a misdemeanor, and the information charged him in the words of the statute, and was sufficient as against a general demurrer.

We have, with much interest, read the briefs submitted relative to the contention that the court erred in sustaining the demurrer to the evidence, and holding that the same was insufficient to establish an offense against the laws of this state.

It may be noted that this case was tried before the court without the intervention of a jury. From the record before us, the court did not decide the case on its merits, or determine any question of fact, but decided the same on a question of law, by sustaining the demurrer to the information, and the demurrer to the evidence. In other words, under the holding of the court, if the case had been tried to a jury, the court as a matter of law would have sustained the demurrers, and directed the jury to return a verdict of acquittal. In our opinion, this was error. The evidence of the state was such that as a question of fact, it could have been concluded that the manner of the use of the pole, cord and hook by defendant was such as to bring it under the terms of a violation of the statute. The evidence was that the hook, which was much larger than generally used, was drawn to the end of the pole where it became stationary, and was then dragged through the water and the fish caught in the side or gill. It was not used for casting, as is usual with rod and reel. There is no evidence that a reel was even on the pole. The fish was caught in the gill on the outside and as the witnesses testified by dragging the pole through the water while the hook was stationary at the end thereof. The Hawaiian wiggler attached to the cord was of no benefit, and a jury could have reached the conclusion that it was being used only as a subterfuge in an attempt to comply with the law. The nature of the pole, line and hook and the man: ner of its use was a question of fact to be decided as to whether the defendant was attempting to violate the terms of the statute by the use of such paraphernalia.

The statute contains the word “gig,” and this word is used in the information. We have been surprised to find that Words and Phrases and a number of law dictionaries do not define this word. But Webster’s New International Dictionary, second edition, defines the word “gig” as follows:

“Gig. Noun. An arrangement of hooks to be drawn through a school of fish when they will not bite, in order to hook them in their bodies.”

The evidence of the state in this case comes clearly within the above definition. The evidence would justify a finding that the fish Avhich defendant had in his possession was caught in this very manner. In fact, some of the Avitnesses so testified. We can not consider the statement that others Avere catching fish Avhere defendant Avas fishing, or that the fish Avould perish if not taken by someone. This Avas a matter for the serious consideration of the Fish and Game Department. In the case of State v. Wheatley, 20 Okla. Cr. 28, 200 P. 1004, 1007, this court, in an opinion by Judge Matson, said:

“This court Avill take judicial notice of the policy of the Legislature to encourage the propagation and protection of the fish and game of this state. Fish hatcheries have been established and from time to time sums appropriated for the distribution at the expense of this state of food fish to the various Avaters of the state. Game preserves have also been established, and the state is annually expending large sums of money to protect and preserve the Avild game of this state of all kinds.”

Since that opinion Avas Avritten, many game and fish laAVS have been enacted and this state is fast becoming one of the leading fishing and hunting sections of the country. Every true sportsman should and will lend a willing hand in assisting the Game Commission in bringing the Department to the highest standards possible. The decisions of the courts of the various states very generally uphold the acts of Legislatures for the protection of both fish and game. The wisdom of passing legislation such as is uoav under consideration is a question for the legislative branch of the government, and the courts are only concerned Avith the proper construction of the law as it is written.

In this case the court did not order a new information to be filed. The demurrer to the evidence was sustained and the defendant was discharged. Under the law and former decisions of this court, this is final as to the defendant, and lie may not be subjected to further prosecution for this offense. State v. Waldrep, 80 Okla. Cr. 230, 158 P. 2d 368; State v. Gray, 71 Okla. Cr. 309, 111 P. 2d 514; State v. Wheatley, 20 Okla. Cr. 28, 200 P. 1004; State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Shafer, 15 Okla. Cr. 610, 179 P. 782.

The reserved questions of law are decided in favor of the state, but for the reasons above stated, the prosecution is at an end.

JONES, P. J., concurs. DOYLE, J., not participating.