author: BAREFOOT, J.

text:
    ERNEST MILLER v. STATE.
    No. A-10027.
    Jan. 13. 1943.
    (133 P. 2d 223.)

      Grester H. LaMar, of Guymon, and Person E. Wood-all, of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Geo. M. Frittz, County Atty. of Texas County, of Guymon, for defendant in error.
   BAREFOOT, J.

Defendant, Ernest Miller,' was charged in the county court of Texas, county with a. “breach of the peace;” was tried, convicted and sentenced to pay a fine of $150 and to serve 120 days in the county jail; and from this judgment and sentence he has appealed.

This case is one arising out of charges filed against persons known as “Jehovah’s. Witnesses.” Many appeals are now pending in this court in cases of this character, and in many of which different issues are raised, and oral arguments have been presented thereon.

This court has recently had under consideration certain cases involving members of this sect. These cases are as follows: Ex parte E. F. Walrod, 73 Okla. Cr. 299, 120 P. 2d 783; Ex parte W. L. Winnett, 73 Okla. Cr. 332, 121 P. 2d 312; Emch v. City of Guymon, 75 Okla. Cr. 1, 127 P. 2d 855.

The last case considered, George L. McKee and Toots Wilson v. State, 75 Okla. Cr. 389, 132 P. 2d 173, involved a question of a. breach of the peace, as is involved here. The other cases had reference to certain city ordinances, and did not involve the question of a breach of the peace.

It is considered proper that a short, concise statement of the facts in the instant case be given before the assignments of error are considered.

Defendant was charged hy information filed in the county court of Texas county with the crime of a “breach of the peace.” The charging part of the information was as follows:

“That the said Ernest Miller, then and there being in said Texas County, State of Oklahoma, on said date of June 5, 1940, did openly, wilfully, wrongfully and unlawfully commit acts by use of opprobrious epithets in the presence of Fred Millard and among divers and sundry persons in said county and state, which said acts and words so spoken did then and there grossly disturb the public peace, in the manner and form as follows, to wit: That the said Ernest Miller stated in the presence of Fred Millard and divers and sundry persons present in the City of Guymon, Texas County, Oklahoma, that he, the said Ernest Miller did not believe in man-made laws ; that the only laws he would obey are the laws of Jehovah; that he does not reverence and respect the principles which the flag of the United States represents; that he will not salute said flag; all of which said open, public and notorious acts, words and conduct of the said Ernest Miller as aforesaid, was calculated to arouse and to anger the said Fred Millard and sundry and divers persons in said Texas County, State of Oklahoma, and did thereby grossly disturb the public peace as aforesaid, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State.”

The statute under which the Attorney General contends that defendant is charged is Oklahoma Statute 1931, section 1988, O. S. A. (Stat. 1941) Title 21, § 1363, which is as follows:

“Use of language calculated to arouse anger or cause breach of peace. — If any person shall make use of any profane, violent, abusive or insulting language toward or about another person, in the presence or hearing, which language, in its common acceptation, is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, every such person shall be deemed guilty of a breach of the peace, and, upon conviction thereof, shall be punished by a fine in any sum not to exceed $100.00, or by imprisonment in the county jail not to exceed thirty days; or by both such fine and imprisonment, at the discretion of the court or jury trying the same.”

It will be noted that the punishment prescribed by this statute assesses a maximum fine of $100 and imprisonment in the county jail for a period not to exceed 30 days. The punishment assessed by the jury against defendant was a fine of $150 and 120 days in jail, for which judgment and sentence was entered by the court. This punishment, it will be noted, is far in excess of the punishment prescribed by the statute under which the Attorney General contends this prosecution is based. However, the trial court did not instruct the jury upon the statute which the Attorney General contends this prosecution is based; but, instead, instructed the jury with reference to Oklahoma Statutes 1931, sections 1772, 1768 and 1769, O. S. A. (Stat. 1941) Title 21, §§ 10, 21 and 22, which are as follows:

“§ 10. Except in cases where a different punishment is prescribed by this chapter or by some existing provisions of law, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding one year or by a fine not exceeding five hundred dollars, or both such fine and imprisonment.”

“§ 21. Where the performance of an act is; prohibited by any statute, and no penalty for the violation of such statute is imposed in any statute, the doing of such act is a misdemeanor.

“§ 22. Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another^ or which grossly disturbs the public peacei or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.”

The court, then, in instruction No. 3, instructs the jury with reference to what constitutes a breach of the peace, and in instruction No. 4 virtually informs the jury that if the defendant used the language as stated in the information he would be guilty of a breach of the peace. Defendant excepted to the giving of this instruction. The last part of this instruction practically instructs the jury to convict the defendant under the evidence offered by the state.

Counsel for defendant, at the conclusion of the state’s evidence, demurred to' the same and requested a directed verdict. The court, at the time of overruling the demurrer to the evidence, used this language:

“In view of the demurrer offered, the court has, to take the evidence offered by the state as true for the purpose of the demurrer. Under this evidence it is disputed, it is true, but I can see some similarity in the case quoted in the United States .Supreme Court and the case we have here. The case there seems to be between different denominations. In the language contained in the information in this court, the language wasn’t any language of any denomination, but was against the state and the flag. We have a statute which makes it unlawful to show any indignation toward the United States flag. For this reason it would be an unlawful act. The information charges that the defendant uttered language that would be an indignation against the United States flag, and that would be unlawful.

“There is another reason for which I am forced to overrule the demurrer. There is a question raised as to constitutionality, and our courts have held that it is not good practice for the lower courts to pass upon the constitutionality of the laws. I think that is good law. The Constitution should be obeyed and followed, and every citizen should have his constitutional rights and should not have some inferior court construing his rights under the Constitution, and the appellate courts have laid down that rule, and this court wants to follow it. For these reasons the demurrer will be overruled and exception noted.”

The statute to which the court referred when using the language “we have a statute,” is 2117, O. S. 1931, Okla. St. Ann. 1941, Tit. 21, § 372, which is as follows:

“Any person who shall tear down, mutilate, deface, defile, defy, treat with indignity, or wantonly destroy the flag or coat of arms of the United States of America, shall be guilty of a misdemeanor.”

It will be noted that the maximum punishment provided by this statute is not to exceed a fine of $100 and 30 days in jail. The court in his instructions to the jury did not refer to1 or mention this section of the statute. From a careful reading of the same we are constrained to believe that it has no' application to the facts as revealed by the record in this case. The acts and conduct of the defendant were not such as constitute a violation of the terms of this statute. That part of the court’s statement with reference to passing upon the constitutionality of the statutes by a “Nisi Prius” court was by reason of a decision of this court in the early days, the case of Dalton v. State, 6 Okla. Cr. 85, 116 P. 954, 956, in which it is stated:

“It is a questionable practice for nisi prius courts to take the initiative in holding statutes unconstitutional, and it is a matter of conmmendation that the superior court passed the important question of the constitutionality of this provisión of the statute to the appellate courts.”

As much may be said in this case. We do not think there is any constitutional question raised which required the serious attention of the lower court or of this court. The only question is the proper consideration and construction of different statutes as applied to the facts.

Enough has been stated to cause a reversal of this case, but the evidence as revealed by the record shows that defendant was a member of a religious group known, as “Jehovah’s Witnesses.” He had lived in Texas county for a number of years and bore a good reputation in that community. On the date charged in the information he came to the city of Guymon for the purpose of distributing literature on the streets. He had a placard on his car with quotations from the Bible. The exact quotation is not revealed by the record. He parked his car on the street and near the place of business of Mr. Claude Hesson, who was friendly to and also a member of “Jehovah’s Witnesses.” He worked on the streets until about 4 o’clock and returned to his car and found that the placard had been taken therefrom and burned in the street. He did not see and did not know who did this. He went to' the shoe repair shop of Mr. Hesson and there found some 50 or 75 people congregated, a number of them on the outside. They were in conversation with Mr. Hesson with reference to the Bible and the teachings of “Jehovah’s Witnesses.” The defendant approached and was engaged in conversation by those present and a number of questions were asked defendant by the citizens present. These questions were answered by defendant and the answers he gave constitute the basis of the charges against him of a “breach of the peace.” There was no fight, no acts of violence, no overt act of any kind, either by the citizens or the defendant, such as existed in the case of George L. McKee and Toots Wilson v. State, supra, decided by this court on the 9th day of November, 1942, 75 Okla. Cr. 389, 132 P. 2d 173. It is only the spoken words by defendant upon which it is relied by the state that there was a breach of the peace. The state offered the evidence of four witnesses as to what transpired. The complaining witness was Fred Millard and he testified to the following statements being made by the defendant:

“Q. Just tell the jury what it was he said. A. Well, he said he didn’t believe in man-made laws, and he said he didn’t reverence the American flag nor believe in anything that it stood for. * * * Q. Now when he made the statement that you have just related to* this jury, did that cause you to become angry? A. Well, I should think that would rile up the people. Q. I asked you if it did cause you to become angry? A. Yes, sir; that is right. Q. Did you say anything to Mr. Miller about that? A. Well, I don’t just remember what I said. I think that any man that would malee that statement is wrong. * * Q. Did he speak out, so that other people could hear him? A. He did. * * * Q. Alright, who was there? A. Well, there are four or five witnesses here that I believe were down there, and there were other people there; I can’t recall them by name. Q. What witnesses' do you mean; do you mean Jehovah’s Witnesses? A. No, sir; Mr. Simpson was there, and Jim Degraffenreid, and Mr. Doyle, and I think Mr. Moorehouse, and I expect there were 50 other people there; I didn’t know all of them. * * * Q. Just go ahead and tell us what you said to Hesson. A. There was a bunch of us trying toi determine why he took the stand he did against the American Government and the flag. Q. Will you just tell us what you said to him and what you said to Ernest Miller there? A. Part of it would not be very nice to hear here. Q. You don’t want to repeat it here? A. No-, sir; I don’t remember just what I said. * * * Q. Did you hear him say he didn’t believe in the American flag? A. He sure did, and furthermore, he said he wouldn’t salute the American flag. * * * Q. Was Ernest Miller present at the time the sign was taken off of his car and destroyed? A. I don’t know; I don’t think he was. * * * Q. Where did you destroy that sign? A. We burned it down -there between Nash’s and the Magnolia Filling Station.”

The testimony of the other witnesses of the state was practically to the same effect. The defendant, testifying in his own behalf, denied making some of the statements. A part of his evidence was as follows:

“* * * Q. Where were you? A. I volunteered in the service the 15th of July, 1918. ' Q. And did you serve in the army? A. Yes, sir. Q. Ho-w long did you serve in the army, Ernest? A. Nine and one-half months. Q. What is your occupation, Ernest? A. I have two- occupations. One is that of a farmer, and the other is that of an ordained minister of the gospel. Q. Of what particular group are you an ordained minister? A. Jehovah’s Witnesses.”

The witness then went into a further account, giving Bible quotations for his beliefs. It is- unnecessary to quote from this evidence.. He further testified:

“Q. Did you state to one of the parties there that you would not salute the flag? A. I did not. Q. As a matter of fact, you will not salute the flag, will you? A. That answer, I will read to you from the Bible. Q. I don’t care anything about you reading from the Bible. * * * Q. Now you can answer that question, yes or no? A. No, sir.' Q. I will ask you this question; do you believe in man-made laws? A. Yes, sir. Q. Do you obey man-made laws? A. Yes, sir. Q. I will ask you if you ■believe in the principles that that flag stands for (indicating flag on wall) ? A. Yes, sir; that flag stands for liberty and justice, freedom of worship and freedom of speech and freedom of the people. It stands for that and I believe in it. Q. You understand that the Bill of Rights of the United States gives a man the right of freedom of speech, do you? A. I sure do.”

The question here presented is: Were the statements made by the defendant a “breach of the peace” under the statute which defendant was prosecuted? We do not believe that the statute under which the court instructed the jury is applicable to the facts in this case. This is especially true by reason of the section immediately following this section. Oklahoma Statutesi 1931, section 1773, O. S. A. (Stat. 1941), Title 21, § 11, and which is as follows:

“If there be in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof, shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.” .

If, as contended by the Attorney General, Oklahoma Statutes 1931, section 1988, O. S. A. (Stat. 1941), Title 21, § 1363, is applicable, we have a specific criminal statute and one which prescribes the punishment which is different from the punishment prescribed by the statute under which the court instructed the jury that this prosecution was based. If the Attorney General is right in his contention that the prosecution was based upon the statute above indicated, it was then error for the court to instruct the jury under the statute heretofore quoted, for the very good reason that this was a specific statute covering this offense, and the statute under which the court instructed the jury was. only applicable when there was no such statute under which a'defendant could be specially prosecuted; and as heretofore stated, the punishment inflicted by the statute under which the court charged the jury provides a more excessive penalty than the statute under which the Attorney General contends this prosecution is based. It is clear to us that the terms..of the statute under which the court charged the jury has no application to the facts as revealed by the record. Thomas v. State, 38 Okla, Cr. 379, 262 P. 503; Hayes v. State, 22 Okla. Cr. 99, 210 P. 728; State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093.

Defendant has filed an elaborate brief, in which it is contended that the court erred in refusing to give certain'requested instructions, and with reference to defendant being denied certain constitutional rights under the due process clause of the Fourteenth Amendment to the United States Constitution, and under article 1, sec. 2, of the Constitution of this; State. We do. not consider it necessary in view of what has heretofore, been said to discuss these questions, at length. Other cases pending in this court, and in which these issues are more clearly raised, will be decided at an early date. We do. not believe that the words here used by defendant were sufficient to constitute a breach of the peace. While one may not agree that the defendant is right in his thought, or that he is right in the construction lie has placed upon •different verses, of the Bible with reference to saluting the flag of his country, yet under1 our democratic government and the Constitution of the United States and the Constitution of this state, he has the right to these thoughts, and under the decisions of the Supreme Court of the United States, and of this state, he has the right to these beliefs. Of course, he does not have a right to violate the laws of this state by overt acts or by a breach of the peace, and if he does so it is at his own peril. Here the defendant committed no over tact. Most of his statements were in answer to questions propounded by citizens who had gathered.

The Supreme Court of the United States, in the case of Jesse Cantwell et al. v. State of Connecticut, 310 U. S. 296, 60 S. Ct. 900, 903, 84 L. Ed. 1213, 128 A.L.R. 1352, decided in May, 1940, has reviewed a case in which the facts are very similar to those in the case at bar.

In that case the defendant, Jesse Cantwell, and others who were members of Jehovah’s Witnesses^ were charged on different counts. The fifth count charged a breach of the peace. Jesse Cantwell was convicted in the lower court on the fifth count, and appealed to the Supreme Court of the United States. The facts with reference to, this count are that the defendant Jesse Cantwell stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record “Enemies,” which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cant-well unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed. Nor were there any overt acts on the part of the defendant or either of the parties approached.

The lower court held that the charge was not an as-i sault or breach of the peace or threats on Cantwell’s part, but invoking or inciting others to' breach of the peace, and that the facts supported the conviction of that offense.

The Supreme Court in an opinion by Justice Eoberts, reviewing the facts as above outlined, said:

“No one would contest the proposition that a state may not, by statute, wholly deny the right to' preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places* and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the act in question is not such a regulation. * * *

“We hold that, in the circumstances disclosed, the conviction of Jesse Cantwell on the fifth count must be set aside. Decision as to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The state of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the state’s interest, means to which end would, in the absence of limitation by the federal Constitution, lie wholly within the state’s discretion, has been pressed, in this instance, to a point where it has come into1 fatal collision with the overriding interest protected by the federal compact.

“Conviction on the fifth count was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should in the interest of comfort or privacy be limited or prevented. Violation of an act exhibiting such a legislative judgment and narrowly drawn to prevent the supposed evil, would pose a question differing from that we must here answer. * * *

“The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to' a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.”

This language has specific application to the facts as revealed by the record in the instant case. From that record we cannot say that the answers to the questions made by the defendant presented a “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.” The court further says:

“Having these considerations in mind, we note that Jesse Cantwell, on April 26, 1938, was upon a public street, where he had a right to be, and where he had a right peacefully to impart his views to others. There is no showing that his deportment was noisy, truculent, overbearing or offensive. He requested of two' pedestrians1 permission to> play to them a phonograph record. The permission was granted. It is not claimed that he intended to insult or affront the hearers by playing the record. It is plain that he wished only to interest them in his propaganda. The sound of the phonograph isi not shown to have disturbed residents of the street, to, have drawn a crowd, or to have impeded traffic. Thus far he had invaded no right or interest of the public or of the men accosted.

“The record played by Cantwell embodies, a general attack on all organized religious systems as instruments of Satan and injurious to, man; it then singles out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, but all others who respect the honestly held religious faith of their fellows. The hearers were in fact highly offended. One of them said he felt like hitting Cantwell and the other that he was tempted to throw Cantwell off the street. The one who, testified he felt like hitting Cantwell said, in answer to, the question ‘Did you do anything else or have any other reaction?’ ‘No, sir, because he said he would take the victrola and he went.’ The other witness testified that he told Cantwell he had better get off the street before something happened to him and that was the end of the matter as, Cantwell picked up his books and walked up the street.”

The facts are very much like the facts in the instant case. Here, the defendant Miller offered no abusive words, he simply answered the questions propounded by the citizens who, had assembled before he came in their presence. These answers were based upon his individual religious beliefs, and though he may have been wrong in the opinion of others, he had the right, under the Constitution as interpreted by the Supreme Court of the United States-to have and express his private opinion based upon his religious beliefs. All of the witnesses testified that no overt act, and no abusive language towards others was used by the defendant. His own testimony showed that he believed in the principles for which the flag stands; that he had been a former service man in World War No. 1. Certainly the facts in the. instant case are almost identical with the facts in the Cantwell case.

The court in that case further said:

“CantwelFs conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Eesort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

“We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion.

“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to' his own point of view, the pleader, as we know, at times, resorts to' exaggeration, to- vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. * * *

“Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to' define and punish specific conduct as constituting a clear and present danger to a substantial interest of the state, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.

“The judgment affirming the convictions on the third and fifth counts is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.”

It has universally been the tendency of this court to follow the decisions of the Supreme Court of the United States upon questions involving the construction of the Constitution of the United States. We deem it important to do' so- at this time.

To our mind, the facts in the instant case are almost identical with the facts in the Cantwell case. While we may not agree with his thoughts, yet, under the Constitution as interpreted by the Supreme Court of the United States, he has the right to that thought, and his expression of the same in a proper manner, as a part of his religious belief, may not be considered as a violation of a statute, especially as the one under which this defendant was charged and convicted.

The punishment inflicted by the jury in the instant case is out of proportion to the acts committed by this defendant. As heretofore announced, the statute under which the court instructed the jury has no application to the facts in this case. While citizens have served their1 country, and have given of their life’s blood for the principles for which it stands, yet our Constitution and our democracy are based upon freedom of speech, freedom of the press, and the right to worship God according to the dictates of our own conscience. This defendant may be wrong, in the opinion of the court, in the principles for which he stands, and his manner of strict construction of certain verses of the Bible, but the principles which are applied by the dictator nations‘of the world should not be applied here. We should rather hope that the sacrifices of blood and lives of the young men of this country will be a lesson which may bring this defendant and those with whom he is associated to their senses and to an appreciation of the flag of this country and for the noble principles for which it stands.

From the oral arguments recently held in this court, we feel that some of the members of this sect are sincere in their belief that it is contrary- to the teachings of the Bible for them and their children to salute the American flag. Others, we fear, are joining this organization with the thought in their minds that it will be a shield in preventing their sons from entering the armed forces of this country, to defend its honor in this great hour of peril. If this be true, we realize that the indignation of those men who entered the World War and the citizens of this country would be taxed to the limit. But would it not be better for their organization to1 proceed in conformity with democratic principles which are a part of the Constitution of the United States, and of this state, than for them to use force or violence in attempting to correct the mistake of others? It may be that when the sons of these members are called to' the defense of their country, and called they will be, they will see the error of their way, and they will be able to read the Bible with a clearer understanding that the defense of one’s country, and a reverence for its flag, is a basic principle of the Bible, and has always been recognized from the days of Jehovah, the God whom they claim to revere.

For tbe reasons above stated, the judgment and sentence of the county court of Texas county is reversed, with directions that the defendant be discharged.

JONES, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    J. N. (NAT) HUDGINS v. STATE.
    No. A-10081.
    Jan. 13, 1943.
    (133 P. 2d 231.)

      Wendell G. Stockton, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This appeal is from a conviction in the court of common pleas of Oklahoma county wherein the defendant, J. N. Hudgins, was charged by information with the crime of “operating a motor vehicle upon the public highway for transportation of passengers for compensation without a permit from the Corporation Commission.” A jury was waived and upon a trial to the court the defendant was found guilty and a fine of $10 and costs assessed against him.

This case involves the application and interpretation of our law regulating motor carriers as set forth in Title 47, chapter 7, O. ;S. 1941. We have heretofore decided four cases involving so-called “travel bureaus.” Herring v. State, 60 Okla. Cr. 449, 64 P. 2d 921; Herring v. State, 68 Okla. Cr. 32, 95 P. 2d 128; Hall v. State, 68 Okla. Cr. 367, 99 P. 2d 163; Hall et al. v. State, 68 Okla. Cr. 451, 99 P. 2d 166.

While there is a great similarity in the method of operation of the business of the defendant with those travel bureaus involved in the above cases, the defendant herein very ingeniously adopted what he refers to as the rent-lease method of operation. Under the operation of the travel bureaus, as disclosed by the cases above cited, persons traveling across the country would stop at the travel bureau and register their car for the purpose of securing pay passengers who were traveling on the same route. Persons desiring transportation to some fixed destination along the route to be traveled by the car owner would go to the travel bureau and pay a definite amount, usually one cent a mile, to- travel as a passenger in the automobile which had been registered. The owner of the automobile would pay to- the operator of the travel bureau a certain percentage of the money paid by the passengers as his commission or fee for securing the passengers.

Under the plan devised by defendant the cross-country traveler who had possession of an automobile would stop at defendant’s office and execute to the Travelers Benevolent Association operated by defendant a so-called lease contract and affidavit which, by its terms-, provides:

“Travelers Benevolent Association “Tel: 3-1229 21 S. Robinson “Oklahoma City, Oklahoma “Lease Contract and Affidavit No.........

“State of Oklahoma “County of Oklahoma, ss.

“I, the undersigned, hereinafter referred to as first party, and affiant, of lawful age, being first duly sworn, deposes and says, as follows: This contract, made and entered into on the date below set forth, by and between, the undersigned first party, and affiant, and the Travelers Benevolent Association, A Corporation, of the second part, and the affidavit as herein set forth by affiant-first party, witnesseth:

“That said first party has this day rented and leased to- said second party a certain automobile, more fully described below, and it is agreed and understood by the said second party that this is a rental contract only, and not of sale, conditional or otherwise; that the renter has rented the automobile, described below, upon the express condition that it shall always remain the property of the party of the first part, and it is further expressly agreed and understood that the second party shall not permit said automobile to be operated by one under the influence of narcotics, or liquor, or by one under 18 years of age, or by anyone for any illegal purpose, but said second party shall not be liable in any event.

“Notice: It is further agreed and understood that the sole relationship between the parties hereto is that of bailor-bailee, and said parties are not, and shall not be considered the agents, servants or employees of each other, in any capacity, and the second party may and is hereby authorized to bail, to lease or sub-lease said automobile, and the first party hereby confirms and ratifies said authority ; it is further agreed and understood that the first party may, subject to such appointment or designation, by any subsequent bailee or lessee of said car, act as caretaker or driver of said car, however, subject wholly to the approval of such bailee or bailees.

“Notice: I, the undersigned bailor, further state, on oath, that I du and have applied to said second party, as a member of the Travelers Benevolent Association, to lease the car, described below, and respectfully state that I am in need of the assistance of the Association, and cannot, otherwise, attain my destination.

“That in consideration of One dollar and other good and valuable consideration, the receipt of which is hereby acknowledged, I do hereby lease unto the second party the automobile, described below, for a period of.................. days, or................months. Dated this..........day of................, 194..... “Make & Model......................... “Tag No....................................... “Drivers License No............... ................................................ ................................................... Bailor & Affiant “Subscribed and sworn to before me this ............day of................, 194.....

“My Commission Expires: November 1, 1944.

A Notary Public

“Travelers Benevolent Association

“By............................................ “Bailee & Attorney-in-fact.”

When, enough people had applied to the defendant for transportation on the route to he traveled by the leased automobile, the defendant in turn ivould have them execute what is denominated a rental contract and affidavit which, by its terms, provides:

“Travelers Benevolent Association “Tel: 3-1229 21 S. Robinson

“Oklahoma City, Oklahoma

“Rental Contract and Affidavit No.........

“State of Oklahoma “County of Oklahoma, ss.

“We, the undersigned, of lawful age, being first duly sworn, depose and say, as follows: This contract, made and executed on the date, below set forth, by and between, the Travelers Benevolent Association, a corporation, first party, and the undersigned renters as parties of the second part and affiants, and the affidavit as herein set forth by affiants, witnesseth:

“That said first party has this day rented and leased to said second parties, jointly and severally, a certain automobile, below described, and it is agreed and understood by said second parties that this is a rental contract only, and not of sale, conditional or otherwise, and that said renters have rented the automobile, described below, upon the express condition that it shall always remain the property of the party of the first part, or its lessor, and that renters shall pay when due their proportionate! part of the costs of the rental charge, including all damage, wear and tear excepted, and will return same to first party, or to such person, hereinafter designated as caretaker, upon the expiration of this lease-contract and/or bailment, and said second parties agree that they will not permit said automobile to be operated by one under the influence of narcotics, or liquor, or by one who is not 18 years of age, or more, or by anyone for any illegal purpose. It is further agreed and understood, and the undersigned second parties, and affiants state that the sole relationship between the parties hereto is that of bailorbailee, or lessor-lessees, and that said second parties shall not for any purpose be considered the agents, servants, or employees of the first party in any capacity, and said first party shall not he liable for damages to any of said second parties in any event.

“Notice: We, the undersigned affiants, and second parties, upon oath, state that we, jointly and severally, undertake the lease of said automobile, as bailees, and we, jointly and severally undertake such trip, adventure, or travel as is made under this lease or bailment, and we do, jointly and severally, designate................, one of the undersigned bailees, as caretaker and driver of the car during the duration of this lease. We, the undersigned bailees, further state on oath, that we do and have applied to said first party, as member of the Travelers Benevolent Association, for the above lease, and respectfully state that we need the assistance of the said Association, and are otherwise without resources to attain our destination.

“Notice: We, the undersigned bailees, acknowledge that we have inspected the car, described below, and that we have, by our acceptance, approved the mechanical condition of the car. Dated this............day of....................,...., 194..... This lease shall expire after"..............days, ............ months.

“Model & Make..........

“Tag No1.......................

“Drivers License No-.

“Address ..............................................

Bailees & Affiants

“Subscribed and sworn to before me this..............day of........................, 194.....

“My Commission Expires :..............................

................................., Notary

“Travelers Benevolent Association

“By....................................................

“Bailor & Attorney-in-fact.”

It is insisted by defendant that by reason of the execution of these contracts, a bailment is created, and that as the relationship' of bailor-bailee then exists between himself and the passenger, he cannot be classified as a motor carrier or as one who aids, abets or assists a motor earner in the transportation of passengers for hire under the motor carrier law, citing 15 O. S. 1941, § 531; Fullgraf, Adm’x, v. Oklahoma Ry. Co., 188 Okla. 592, 111 P. 2d 1072; Roeske v. Lamb et al., 39 N.M. 111, 41 P. 2d 522; State v. Dabney, 176 Ark. 1071, 5 S. W. 2d 304; Armstrong v. Denver Saunders System Co., et al., 84 Colo. 138, 268 P. 976; State v. Hertz Driv-Ur-Self Stations, Inc., 149 Wash. 479, 271 P. 331.

Without relating the facts in each of the cases relied upon by the defendant above set forth, it is sufficient to state that there is no question in the court’s mind but that any person has a right to rent an automobile to’ transport themselves to such destination as they choose, and that the state is without power to forbid the carrying of one or more persons as a special undertaking or similar transaction on a' share expense basis or for hire by an owner or driver of a motor vehicle.

47 O. S. 1941 § 161, which was the statute in effect at the time complained of herein, provides:

“(a) The term ‘motor vehicle’ when used in this Act shall mean any automobile, truck, truck-tractor, trailer or semi-trailer or any motor bus or any self-propelled vehicle not operated or driven upon fixed rails or tracks.

“(b) The term ‘motor carrier,’ when used in this Act, means any person, firm, business, trust or corporation, lessee or trustee or receiver, operating any motor vehicle upon any public highway for the transportation of passengers or property for compensation or for commercial purposes, doing an intercity business and not operating exclusively within the limits of an incorporated city or towns within this state, and, for the purposes of this act, motor carriers shall be divided into three classes as follows :

“(4) Class 'A’ motor carriers shall include all motor carriers operating as common carriers, of persons or property between fixed termini or over a regular route, even though there be periodic or irregular departures from said termini or route; and

“(2) Class ‘B’ motor carriers shall include all other motor carriers not operating as Class ‘A’ or ‘C’ motor carriers, whether as private carriers, for hire or common carriers for hire, of persons or property; and

“(3) Class ‘O’ motor carriers shall include all other persons, firms or corporations, their trastees or receivers, engaged in the transportation of property in furtherance of any private commercial enterprise and not operating as a private carrier for hire or as a common carrier for hire, * *

In determining whether the business of the defendant herein comes within the terms of the definition of a Class “B” motor carrier under the above statute, it is necessary to review the evidence as disclosed by the record to determine the practical operation of defendant’s plan. It should be borne in mind that courts never subordinate substance to shadow, and if the evidence discloses that defendant’s plan is a subterfuge to avoid regulation of his business by the state, when the practical method of operation by defendant shows that his business is such! as may be regulated by the state and, as is defined by the statute above quoted as interpreted in the former decisions of this, court, then the conviction herein should be sustained.

J. W. Marshall testified that he had been hired to go to the place of business of defendant and purchase a ticket to Albuquerque, N. M. That he was working for Mr. Anderson, an agent for the Union Bus Station. That hie went to the Rasbach Hotel where defendant maintained his office and asked defendant what it would cost to go to Albuquerque and defendant told him $6. That he said he wanted to go and defendant handed him a card and said “You sign this card,” and “I signed it.”

“Q. (By Mr. Daugherty, Asst. County Attorney) : Then what happened after that? A. Well, this driver came in and he said, after a while — he said, ‘You — I am ready to go’. Q. Did you go with the driver? A. Yes, sir. Q. What kind of automobile or conveyance did he have? A. It was a 1940 DeSoto sedan. Q. Was there anybody else that went with you? A. Yes, sir. Q. How many other people?, A. Two more passengers. One colored fellow and an old white gentleman. Q. Did you know anything about the arrangements that were made with Mr. Hudgins for that transportation? A. No, sir. I did not. Q. Now, did you notice the license tag on the car? A. Yes, I did. Q. Did it have the word ‘Bus’ written down the center or there between the numerals? A. No, sir. Q. Was it an Oklahoma tag? A. No, sir. Q. What kind of tag was it? A. Illinois.”

The witness further testified that the parties traveling in the automobile were stopped at Yukon and brought back tO' the courthouse in Oklahoma City. On cross-examination the witness admitted that he used the alias “Jimmie Martin” in signing the card presented to him by defendant. When confronted with the so-called rental contract and affidavit the witness identified the name “Jimmie Martin” appearing thereon as having been signed by him. On redirect examination the witness testified that he and each of the other passengers paid their fare to Mr. Hudgins, the defendant, the exact amount paid by the other two passengers not being remembered by the witness.

S. D. Anderson testified that he was an investigator in the Department of Public Safety and that on November 23, 1940, he was investigating individuals who were in the business of soliciting and obtaining passengers for unlicensed motor carriers to> be hauled over the highways of Oklahoma for hire. That he made an investigation of the place of business of the Travelers Benevolent Association operated by defendant in the Rasbach Hotel. That he had been watching the operations of the defendant for about a month prior to November 23, 1940. That there was a sign on the hotel window which read “Travel Information” or “Travel Bureau” in large letters which could be seen across the street from the hotel. That he arrested the witness Marshall, the driver of the automobile and the other passengers at Yukon and brought them back to Oklahoma City, • where he also arrested the defendant. That in a conversation had with defendant and the driver ¡Stone at the courthouse the defendant explained that he had an association and coupons for the passengers to sign which made it unnecessary for him to secure a permit from the Corporation Commission to operate his business. That the defendant further stated in the conversation that he was given part of the money which the passengers paid to Stone. That the other two- passengers besides Marshall were going to California. That defendant and Stone each stated that they did not have a permit from the Corporation Commission, and that there was no insurance on the automobile to guarantee the safe arrival of the passengers at their destination.

The defendant testified in his own behalf that as secretary of the Travelers Benevolent Association he had been operating the association since October 25, 1940. That he leased cars from the owners and in turn rented them to individuals who did not have the money to pay regular bus fare and no other means of reaching their destination. On direct examination he testified:

“Q. What if people come in and want to go to California? Do you lease them a car to go there? A. If I have a car I have leased I rent them that car jointly with someone else. Q. And do they have full control, as far as the operation of the automobile is concerned, during the trip? A. Just as much as anyone else. Q. How long are these leases taken for? A. Over the period of time it takes to ride to their particular destination.”

He further identified the contracts signed by Stone and the passengers in Stone’s automobile which are worded exactly as the two contracts hereinabove set forth. That the passengers, Browder, Booker and Marshall, paid him $10, $12, and $6, respectively, as a consideration for’ their trip. That of this money he gave $22 to Stone, the driver of the automobile, and retained $6, of which $3 was for money which he had previously advanced to Stone and $3 for his commission or fee. On cross-examination defendant admitted that the passengers paid Stone directly the $22 and to him $6. That Stone was driving an automobile which belonged to a finance company in California. That the owner of the car had defaulted in his payments and Stone had been sent by the finance company to return the car to- California. That Stone came to defendant and wanted some passengers that would help pay him some money for his trip out here. That for the $22 which was paid to Stone the three passengers were entitled to ride in the car to their destination and Stone was to furnish the gas and oil and maintain the car out of the money which was paid to him. On redirect examination the defendant testified that he did not hold himself out as a carrier of passengers and that he had no- sign and ran no advertisements to that effect, and that he had never been in what is known as the travel bureau business. On further cross-examination the defendant testified that if anyone came to his place of business and wanted to go to any certain point that he could tell them the cost, which was one cent a mile. That if a person wanted to go to- Houston, Téx., and he did not have a car1 going to that place he could not do business with them. On redirect examination the defendant stated that the sign in the window where he operated his business read “Travelers Benevolent Association” and “Cars Anywhere Most Anytime.”

In Herring v. State, supra, 60 Okla. Cr. 449, 64 P. 2d 921, it is stated:

“Defendant who conducted a travel bureau, and who contracted with passengers for transportation to intrastate and interstate points, and fixed rates to be charged, the places where the passengers would take the conveyance, and the payment of fare, held guilty of operating a motor vehicle on public highway without a permit from the Corporation Commission, where neither defendant nor party transporting passengers had a permit for operation as a motor carrier, since party transporting passengers was a class B motor carrier, as defined by section 3700, Okla. St. 1931, as amended by Laws 1933, c. 156, § 1, 47 O. S. 1941 § 161.

“That part of the motor vehicle law, applicable to a class B motor carrier, section 3706 and sections 3700, 3704, 3711, Okla. St. 1931, as amended by sections 1, 2, 6, c. 156, S. L. 1933, 47 O. S. 1941 §§ 161, 165, 172, defining motor carriers, requiring a permit of carriers to operate on the highways, forbidding operation without permit, defining an offense, and providing punishment, is not unconstitutional.

“Freedom of contract, while the general rule, is nevertheless not absolute, but subject to' a great variety of legitimate restraints, among which are such as are required for the safety and welfare of the state and its inhabitants; and when the exercise of that freedom conflicts with the power and duty of the state to safeguard its property from injury and preserve it for those uses for which it was primarily designated, such freedom may he regulated and limited to the extent which reasonably may be necessary to> carry the power and duty into- effect.

“In the exercise of its power to regulate the use of its highways and to make them more safe and convenient for private vehicles and the public generally, the state may classify motor vehicles and malte reasonable regulations governing the use of the state’s highway. To that end it may require carriers for hire to procure a permit and to conform to> such reasonable regulations as a condition precedent to the using the highways in the business of a carrier.”

In the body of the opinion it is stated:

“We are satisfied the state is without power to forbid or to make criminal the act of carrying of one or more persons as a special undertaking or single transaction, on a share expense basis or for hire by an owner or driver of a motor vehicle. That is to say, if an owner or driver of a motor vehicle shall desire to drive to another point within or beyond the boundaries of the state and for such trip shall make arrangements to take other persons with him on a share expense basis or for a fixed charge, his act would not be unlawful for such purpose. But where the undertaking is a business or part of a business or where he proposes to carry all persons indifferently who choose to employ him, he becomes a carrier within the terms of the statute. In such case he is engaged in a business Avhich the state may regulate and control.

“In these modern days, the congestion of traffic of the highways, the enormous number of accidents with the great toll of death and injuries make restrictive regulation of the use of the highways imperative and has tended to make more liberal the decisions of the courts in upholding state legislation on the subject.”

In support of the conclusions reached in. said opinion the decision of the United States Supreme Court in the case of Stephenson et al. v. Binford et al., 287 U. S. 251, 53 S. Ct. 181, 187, 77 L. Ed. 288, 87 A.L.R. 721, was cited. That learned court, in its opinion, stated:

“The requirement of the Texas statute under attack that contract carriers must have a permit with the prerequisites in the statute for such a permit, is. reasonable, particularly in that this method enables the State to know who- will use its highways and to more efficiently regulate such use. The permit system has immediate relation to the condition of the roads and bridges, congestion of the highways and the character of equipment to be used, which relates not only to the effect of the operations on business but also to the problem of safety and convenience in use of the highway.”

If the operations of the defendant, as hereinabove stated, had been a single transaction in accordance with the terms of the written contract, he and Stone would not be guilty under the statute. Here, however, the defendant has an established business which earns sufficient fees to pay office expense and, according to defendant’s testimony, he was to be paid $100 per month out of the fees earned by said association. Under the defendant’s own testimony the association operated by him proposed to carry all persons indifferently who made application to them for that purpose., The association of defendant was organized under the purported authority of section 9943, O. S. 1931, 18 O. S. 1941 § 581, which provides:

“The following associations for benevolent and charitable purposes may become incorporated, as provided in this Article, to-wit: * * *

“2. For the mutual assistance of the members in time of sickness or necessity, and to provide a fund for this purpose by contributions of the members thereof from time to time, and for the like incidental benevolent purposes.”

It might be well to note that the business of the association as described by defendant does not come within the purview of the above section of the statute as the members referred to' in said statute could hardly include travelers who would meet other travelers in an office such as we have in this case and travel to various parts of the United States with no apparent intention of returning- to the place of business from which they started. Although the corporation, in support of its pretense, provides for the collection of an annual membership fee, the testimony shows that no fees were ever in fact collected except the fee which was paid as compensation for the trip which was to be taken by the traveler1. It was never contemplated that the purported member would ever be an active member of the association or ever return to Oklahoma City. It is apparent to this court that while the plan of operation has been ingeniously devised, it is a pretense only, while the actual method of operation is substantially the same as that of the so-called travel bureaus.

Courts are not bound by the designation which a party may give to his method of operation. The defendant may designate his plan as the rent-lease plan or the bailor-bailee plan, but it is incumbent upon the courts to look behind the pretense, if there is pretense, to determine whether a party is attempting to- do- indirectly that which he is prohibited by statute from doing directly. If this court should hold that by the adoption of a dual lease and rental plan, such as is involved here, a person may avoid the restrictions imposed by our motor carrier act, and which is sustained by sound public policy, then the various admitted motor carriers could accomplish the same result by having their passengers, before entering their buses at the various places on their fixed route, sign a rental contract and membership card such as was done herein and thus avoid regulation of their business by the state. It may not be done under our law in either instance.

The defendant further complains of the action of the court in allowing the witness Marshall to testify concerning what was said and done by himself and the defendant as the same was an attempt by Marshall to vary the terms of a written contract which he had executed. In! disposing of this question it is sufficient to- state that the evidence objected to was all admitted before there was any proof before the court that any written instruments had been executed. Furthermore, a court should not refuse to admit -parol testimony in a criminal action to explain certain acts which were done by defendant which amount to a crime because the defendant had contrived to have the ivitness sign a written instrument which would cover up his crime. However, in this case, we find the alleged error, if any, was cured by reason of the fact that the defendant, as a witness in his own behalf, upon questioning by his counsel, related all of the facts and circumstances surrounding the transaction with the witness Marshall. It should be further noted that this cause was tried to the court. In such cases the court will give effect and weight only to that testimony which is legally admissible in evidence and will disregard incompetent and inadmissible evidence which may be introduced.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT and DOYLE, JJ., concur.


text:
    EDWARD P. ROEDL v. STATE.
    No. A-10161.
    Jan. 20, 1943.
    (133 P. 2d 558.)

      Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Edward P. Roedl, was charged in the court of common pleas of Oklahoma county with the crime of conducting a public nuisance, was tried, convicted and sentenced to pay a fine of |500, and has appealed.

The charge in this case arises from the conducting by defendant of a place of business at 325 West Grand, in Oklahoma City, known as “Eddie’s” place, on the 21st day of April, 1941; and in which it was charged in the information, “where gambling games (betting and booking baseball games) were permitted, where score cards were kept, and where information was given out to various and divers persons, and where divers persons unknown were permitted to congregate, all for the purpose of gambling, betting and wagering, all to the common nuisance of the public.”

The only real contention of the defendant for a reversal of this case is that evidence introduced by the state “was wholly insufficient to justify a verdict of guilty or sustain a judgment based upon a verdict of guilty.” The other questions involved will be discussed in connection with this assignment of error.

The statute under which defendant was charged is section 2457, Okla. Stats. 1931, O. ,S. A. (Stat. 1941), Title 21, § 1191, which is as follows:

“Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who wilfully omits to perform any legal duty relating, to the removal of a public nuisance, is guilty of a misdemeanor.”

Sections 11489, 11490, and 11496, Okla. Stats. 1931, O. S. A. (Stat. 1941) Title 50, §§ 1, 2, and 8, are as follows :

“§ 1. A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
“First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or
“Second. Offends decency; or,
“Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or,
“Fourth. In any way renders other persons insecure in life, or in the use of property.
“§ 2. A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”
“§ 8. The remedies against a public nuisance are:
“1, Indictment or information, or,
“2, A civil action, or,
“3, Abatement.”

An examination of the authorities convinces us that a place of business such as charged in the information in this case is a public nuisance, and under the statutes above quoted may not only be subjected to abatement by injunction, but that the conducting thereof may be punished under the law of this state for a misdemeanor, and that the sections of the statute above quoted and under which the defendant in this case was charged are the proper sections of the statutes for the prosecution of such charge.

In the case of James v. State, 4 Okla. Cr. 587, 112 P. 944, 34 L.R.A., N.S., 515, 140 Am. St. Rep. 693, this court in an early day decision said:

“A house or place kept for the purpose of enabling-persons to place bets or wagers, upon horse races is a common gambling house, is a' nuisance per se, and those who conduct it are indictable and punishable under section 2465, Snyder’s Comp. Laws Okla. 1909, 21 O. S. 1941 § 1191.”

The section of the statute referred to is identical with the one here involved.

.See, also, Jones v. State, 38 Okla. 218, 132 P. 319, 44 L.R.A., N.S., 161, Ann. Cas. 1915C, 1031; Oklahoma Kennel Club v. State ex rel. Bishop, 155 Okla. 233, 8 P. 2d 753; McNulty v. State, 90 Okla. 267, 217 P. 467; Blanton v. State, 38 Okla. Cr. 149, 259 P. 655.

In the recent case of Miller v. State, 74 Okla. Cr. 104, 123 P. 2d 699, we had occasion to decide a case which is very similar to the one here involved. The facts in that case were even stronger than in the case at bar. Judge Jones delivered the opinion and the case was reversed for the reason that the evidence was insufficient to sustain the judgment and sentence. The question involved was where the defendant with others was charged under the same statute as in the instant case, with the crime of running a place where bets and wagers were made upon football games. As stated above, the evidence against that defendant was stronger than in the case at bar. We will not quote from that case, hut anyone interested may read the same.

Here two officers who conducted the search of defendant’s premises without a search warrant were the witnesses for the state. One of them testified to visiting the place on several occasions, and that it was a place where beer, sandwiches, cigars, cigarettes, and so forth, were sold. That there was located therein a baseball board and a ticker tape machine for securing the results of baseball games played in the different leagues. There was no evidence of betting on the games other than that one of the officers saw some money change hands between the defendant and another party, and testified that the defendant told him “that he had always bet on baseball games, and he was going to continue to bet on them as long as he had mind to.”

Defendant’s place was searched and certain papers Avere taken therefrom. One of these papers had certain numbers thereon, and another one had a list of the names of the baseball pitchers in each of the leagues, and figures Avhieh tended to show the games they had Avon and lost, and the score of each game; and also a large list of basketball players, but the officers testified that it Avas not the basketball season, and that they had seen nothing that would indicate that betting Avas being had in any way on basketball games.

The officers had no search Avarrant at the time they secured these exhibits. They knew nothing about what they meant, and could not explain to the jury how they were used or could be used. There was no1 evidence that the defendant ever used them. N> bet of any kind was made by defendant or by anyone in his employment; and the officers testified that they had never seen any violation of laAV in any way in defendant’s place.

Defendant offered the evidence of some twelve witnesses, Avho daily frequented his place for the purpose of buying beer, sandwiches, and so- forth, and for the purpose of seeing the board where the results of the baseball games were posted. Each of these witnesses testified that they at no time saw any betting or violation of the law in any way by defendant, nor did they see the using of the cards for this purpose. These witnesses were men who worked or had business in close proximity to defendant’s place of business.

From a careful examination of the record, we are convinced that the evidence was not sufficient to' sustain! the judgment and sentence. No brief has been filed by the state, or by the county attorney of Oklahoma county. Defendant’s brief was filed on February 23, 1942.

For the reasons above stated, the judgment of the court of common pleas of Oklahoma county is reversed, Avith directions to discharge the defendant.

JONES, P. J., and DOYLE, J., concur.


text:
    GRADY SANDERS v. STATE.
    No. A-10099.
    Jan. 20, 1943.
    (133 P. 2d 562.)

      D. D. Archer, Fred Black, and 0. 0. Andrews, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Grady Sanders, was convicted in the common pleas court of Oklahoma county upon an information charging the crime of unlawful possession of intoxicating liquor, was sentenced to serve 45 days in the county jail and pay a fine of $50 and costs, and has appealed.

The principal question raised by defendant concerns the search warrant. The search warrant was what is known as a John Doe search warrant; that is, the name John Doe was inserted in the warrant in the place of the name of the defendant. Although some question was raised by defendant concerning the legal description set forth in the search warrant, it is clear to this court from the record that the description of the premises, was correctly set forth in the warrant.

One of the officers who made the raid stated that he knew the defendant lived at the premises. Relying upon this evidence, the defendant insists that the search warrant was insufficient as a matter of law to authorize the search, citing Linthicum v. State, 66 Okla. Cr. 327, 92 P. 2d 381, which holds that where the name of the party whose premises were sought to be searched was known to the officer, it should be inserted in the search warrant.

However, the affiant who went before the justice of the peace to procure the search warrant swore that he did not know who lived at the premises to be searched, but that he did know it was some person who was selling whisky for one Fuller. Since the affiant did not know who resided on the premises, it was not error to insert the name of the occupant as John Doe.

In the recent cases of Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196, and Cook v. State, 75 Okla. Cr. 402, 132 P. 2d 349, Ave have discussed the proposition now raised by the defendant.

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

“It is not always reversible error when the name ‘John Doe’ is substituted. This is especially true when the name of the party is unknoivn or the name of the party residing on the premises to be searched is unknown.”

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

> “Where search warrant is issued for the search of specifically described premises only and not for the search of a person, failure to name the owner or occupant of such property in the affidavit and search warrant does not invalidate them; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the search warrant, it is not a fatal defect if the legal description of the premises to be searched isi otherwise correct so that no discretion is left to the officer making the search as to the place to be searched.”

In vieAv of the above decisions and the authorities cited in the' opinions disposing of said cases, it is our conclusion that the court did not err in overruling the motion to suppress the evidence.

It is well to call attention to the fact that the defendant did not testify at the trial, but did testify on the motion to suppress that the whisky belonged to him, and that he was present when the search was made and the 300 pints of liquor seized by the officers.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT and DOYLE, JJ., concur.


text:
    W. L. JUMP v. STATE.
    No. A-10123.
    Jan. 20, 1943.
    (133 P. 2d 561.)
    Johnson & Johnson, of Fairfax, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

W. L. Jump has appealed to this court from a conviction in the county court of Pawnee county for the crime of unlawfully selling cholera infected hogs.

The Attorney General has filed a motion to dismiss the appeal for the reason that the judgment and sentence of the county court was pronounced against the defendant on the 3rd day of June, 1941, and that this appeal was filed in the office of the Clerk of the Criminal Court of Appeals on August 14, 1941, which was more than 60 days after the date of the judgment and sentence. That no order of the county court was ever made extending the time in which said appeal might be filed.

No response has been filed to this motion, and an examination of the record sustains the allegations set forth in said motion.

Section 8192, O. S. 1931, 22 O. ;S. 1941, § 1054, provides :

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. * * *”

In the case of Gunter v. State, 13 Okla. Cr. 83, 162 P. 231, it is stated:

“* * * When an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.”

See, also, Fleetwood v. State, 16 Okla. Cr. 675, 181 P. 157; McAdams v. State, 17 Okla. Cr. 740, 192 P. 428.

It is therefore ordered that the purported appeal be and the same is hereby dismissed and the cause is remanded to the county court of Pawnee county, with directions to cause its judgement and sentence to be carried into execution.

BAREFOOT and BOYLE, JJ., concur.


text:
    D. McELROY v. STATE.
    No. A-10124.
    Jan. 27, 1943.
    (133 P. 2d 900.)

      J. Kandall Connell, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Ed Sbipp, County Atty. of McCurtain County, of Idabel, for defendant in error.
   BAREFOOT, J.

Defendant, D. McElroy, was charged in the county court of McCurtain county with the crime of unlawful possession of intoxicating liquor-, to wit, 16 pints of whisky and two quarts of wine; was tried, convicted and sentenced to pay a fine of $50, and to- serve 90 days in the county jail, and has appealed.

The facts in this case are that two deputy sheriffs and the assistant county attorney of McCurtain county, on the 31st day of December, 1940, went to a point on the public highway northwest of Idabel in said county; that the defendant was the owner of a “house trailer,’.’ the same being located, as the officers testified, upon the public highway. It appears that the defendant was living in this trailer. The three officers secreted themselves in close proximity to where the trailer was located, and waited for defendant to make his appearance.

They observed a Chevrolet automobile drive up near the trailer and the defendant appeared and delivered a bottle of whisky to the party who was driving the car, who was not identified in the record.

The officers remained in the place where they had hidden themselves) which was only a few steps from the defendant. They saw him go1 to a near-by culvert and get several bottles of whisky, and also saw him pick up in his arms other bottles of whisky.

Each of the officers identified the whisky, and testified positively that they saw it and saw defendant carrying it in his arms toward the trailer. One of the officers followed him into' the trailer and immediately placed him under arrest, as he sat the bottles of whisky on the floor. They then searched the premises, and a total of 16 pints of whisky and two quarts of wine were found. Some of this was. at various points on the outside of the trailer. Some was in a temporary ice chest on the outside of the trailer, and some hidden in the woodpile. The two quarts of wine were on the outside near the woodpile.

Defendant was placed in the county jail, and these charges are the outgrowth of the above facts.

The officers did not have a search warrant at the time, and it is for this reason defendant contends that the court erred in refusing to sustain his motion to suppress the evidence; and that the search was illegal, void and contrary to- his constitutional and statutory rights.

It is contended by the state that the defendant committed a misdemeanor in the presence of the officers; that under the law they had the light to arrest him without the necessity of a search warrant, and having arrested him lawfully, they had the right to search his person, and the property in his immediate presence.

From the above statement of facts, we are clearly of the opinion that a misdemeanor was committed by defendant in the presence of the officers, and they had the right to arrest defendant and search him and the property in his immediate presence. Nott v. State, 73 Okla. Cr. 139, 118 P. 2d 667; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Wilmoth v. State, 75 Okla. Cr. 369, 131 P. 2d 774.

The mere fact that he walked into the trailer while transporting the whisky in his arms would be no reason why the officer should not follow him and arrest him therein for the crime committed in his presence.

Defendant complains that the officers concealed themselves. We know of no law which would deprive an officer of the right to conceal himself prior to making an arrest.

It is also contended that the law with reference to the officers being informants or spies should have been upheld in this case. We see no reason why this law should be applied, under the facts above stated.

The trailer was located on the public highway, and the defendant was on the public highway at the time he was in possession of the whisky, and was conveying the same. While we have often stated, and now reiterate, it is the best practice for officers- to procure search warrants when knowing what property they intend to search, yet when one commits a misdemeanor in the presence of officers, and they lawfully arrest without the same being a subterfuge, they have the right to search without the necessity of procuring a search warrant. Certainly there is no justification in believing that a subterfuge was practiced by the officers in the case at bar.

The record reveals that the defendant ivas arrested on the 31st day of December, 1940. At this time the Honorable M. F. Hudson was county attorney of McCur-tain county. His name as county attorney, by Ed Shipp, assistant, was signed to- the information filed in this case on January 2, 1941. It appears that before the case was called for trial Mr. Hudson had been appointed county judge of McCurtain county. It also appears from the record that a motion to suppress the evidence was filed in this case on March 28, 1941, and on this same date, when defendant was arraigned, an order was entered by M. F. Hudson, county judge, overruling the motion to suppress the evidence. There is nothing in the record to show that any evidence was taken, or heard at the time this motion was overruled. On April 16, 1941, Judge Hudson entered an order certifying his disqualification in the case, and the Honorable Tom Finney, of the Me-Ourtain county bar, was in open court selected by agreement of all parties to hear and try the case. Both parties announced ready for trial on April 16, 1941, and Special Judge Finney heard the case.

No question was at any time presented by defendant with reference to the action of Judge Hudson in overruling the motion to suppress the evidence, either during the trial, on the motion for new trial, or in the petition in error. It is only in the brief of plaintiff in error that this matter is referred to, and the case of Dodd v. State, 5 Okla. Cr. 513, 115 P. 632, is cited. We do not think the facts in that case are similar to the facts in the instant case.

We are of the opinion that the defendant, under the facts as above stated, waived any right he had as to the entering of the order by Judge Hudson. He having, been county attorney at the time this case was filed, he was, in our opinion, disqualified to hear the case, and did not have the right to make any order therein; and if the defendant had been prejudiced in any way by his action or order, we would not hesitate to- reverse the case. The same motion was presented during the trial, and at the close thereof, to Special Judge Finney and was overruled. We think the facts justified this action.

Defendant also complains that the court refused permission to propound certain questions to prospective jurors. These questions were with reference to questions of law regarding the having or issuance of a search warrant, and were clearly questions for the consideration of the court, and not for the jury. The court was clearly right in sustaining objections to these questions.

We find no error in the trial of this case. Defendant had a fair and impartial trial.

We note from the record that defendant did not have sufficient funds to pay for a case-made for an appeal in this case, and that the same was prepared at the expense of the county. While it is not often that a verdict of the jury will be modified in a case of this character, we believe the ends of justice will be met by modifying- this judgment from a fine of $50 and 90 days in jail to a fine of $50 and 60 days in jail.

The judgment and sentence of the county court of McCurtain county is therefore modified and affirmed, as above stated.

JONES, P. J., and DOYLE, J., concur.