text:
    JERRY POWELL v. STATE.
    No. A-5026.
    Opinion Filed Nov. 9, 1925.
    (240 Pac. 1080.)

      Jesse W. Watts and T. J. Lillard, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Wagoner county, January 6, 1923?, Jerry Powell did have in his possession three gallons of whisky, with the willful and unlawful intent to sell the same. On the trial the jury returned a verdict finding the defendant guilty, and fixing his punishment at a fine of $250, and confinement in the county jail for 90 days. To reverse the judgment rendered on the verdict he appeals.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is that the evidence is insufficient to sustain the conviction.

It appears that the defendant resided with his father and mother and a married sister; that under authority of a search warrant two deputy sheriffs visited his home, and told him they had a search warrant and wanted to search the house, and he said, “All right; go ahead.”

Robert Murphy, deputy sheriff, testified:

“Wq drove out to Jerry’s house. I went in the front door, and Joe went in the back door. I noticed that he had a half pint bottle in his hand — I think he took it off the mantel, and I took it from him. It was full of whisky. We found a five-gallon glass jug. It had one ounce of liquor in it, enough to tell what it was. I found three empty 5-gallon jugs in the back room, and the floor was wet with com whisky. We arrested Jerry and took him to town, and then I went back and made another search. I turned the half pint bottle over to the sheriff.”

Joe Thompson, deputy sheriff, testified in substance to the same facts.

As a witness in his own behalf the defendant testified that the half pint bottle that he took from the mantel contained five or six ounces of whisky and witch-hazel that his mother kept and used for rheumatism; that he got the five-gallon jugs a mile and a half south of Glenn Pool from Joe Barnes, and hauled them from there in a wagon about six months before, and had used two of them for water bottles.

Upon a careful examination and consideration of the evidence we have reached the conclusion that it is insufficient to support’ a conviction, in that there was no proof of an unlawful intent, which is an essential element of the offense charged. There was no direct evidence of an unlawful intent, and the proof fails to show that the quantity of liquor found was sufficient to be prima facie evidence of an intent to violate the liquor laws.

It follows from what has been said that the judgment appealed from herein should be and the same is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex Parte STARRETT.
    No. A-5876.
    Opinion Filed Nov. 10, 1925.
    (240 Pac. 748.)
    Keller & Cameron, H. H. Brown, Guy Sigler, J. H. Hayes, and Ben F. Williams, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

Upon the hearing of this petition it conclusively appears that the petitioner by the use of firearms killed two persons in the town of Marietta, in Love county, on July 14, 1925. For these homicides the petitioner stands charged with murder in the district court of Love county, and bail has been denied him by that court.

Upon an application for bail after commitment, upon a charge of murder, on the ground that the proof of guilt is not evident nor the presumption thereof great, if upon a consideration of all the evidence offered the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt, bail will be refused.

The rule generally approved by appellate courts is that, in denying an application for bail, neither the facts nor the law in the case should be discussed by the court lest it prejudice the rights of the defendant on his final trial; and we shall adhere to that rule in this case.

The application is denied.


author: BESSEY, P. J.

text:
    BEN SMITH v. STATE.
    No. A-5031.
    Opinion Filed Nov. 14, 1925.
    (240 Pac. 656.)

      Walter Mathews, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The information in substance charged that Ben Smith and Mamie Cobb willfully, unlawfully, and feloniously sold to J. W. Stafford one capsule of morphine for the price of $1; the exact quantity of morphine being unknown to the county attorney, contrary to the statutes.

The information was attacked by demurrer, urging that the facts stated did not constitute a public offense; that more than one offense was stated; that the information was so ambiguous that a person of ordinary intelligence could not know what was intended; and that the court could not render judgment on conviction according to the rights of the case. The demurrer was overruled. At the close of the testimony the court instructed the jury that the evidence was insufficient to hold Mamie Cobb.

Against the plaintiff in error, Ben Smith, the jury rendered a verdict of guilty without assessing the punishment. The court, in pronouncing judgment upon the verdict, fixed the penalty at a fine of $500 and imprisonment in the state penitentiary for five years.

In his brief on appeal plaintiff in error complains that the information does not state facts sufficient to charge the crime of illegally selling narcotic drugs.

Section 8886, Comp. Stat. 1921, defines narcotic drugs thus:

“As used in this act, the term ‘narcotic drugs’ shall be construed to mean and comprehend opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof including paregoric except preparations or remedies which do not contain more than two grains of opium, or more than one-fourth of a grain of morphine, or more than one-eighth of a grain of heroin,' or more than one grain of codeine, or any salt or derivative of any of them in one fluid ounce, or, if a solid or semi-solid preparation, in one avoirdupois ounce, and except liniments, ointments or other preparations which are prepared for external use only,” etc.

The plaintiff in error claims that the information was defective because it did not state that the capsule of morphine sold contained more than one-fourth of a grain of morphine to the fluid or avoirdupois ounce, or that it was not sold as medicine for external use only.

■Counsel for plaintiff in error argues as if plaintiff in error were charged in the trial court with the sale of a preparation or remedy containing morphine, instead of with the sale of morphine itself. In Barr et al. v. State, 32 Okla. Cr. 99, 231 P. 322, it was said:

“The court will take judicial notice that morphine sulphate is a narcotic drug within the definition of that term as contained in section 8886, Comp. Stat. 1921, and that an ordinary dose of this substance is from one-twelfth to one-half of a grain.”

It is self-evident that the pleader was not obliged to state that the thing sold contained more than one-fourth of a grain of itself to the fluid or avoirdupois ounce. Neither is it necessary to negative the exceptions or provisos contained in the narcotic drug statute. A portion of section 8887, the section prohibiting the sale of narcotic drugs as defined in the preceding section, states:

"It shall not be necessary to negative any of the aforesaid exceptions in any complaint, information, or indictment, or any writ of proceeding laid or brought under this act; and the burden of proof of any such exemption or exception shall be upon the defendant.” Alexander v. State, 24 Okla. Cr. 435, 218 P. 543.

Plaintiff in error urges that the penalty assessed is excessive. The evidence is not before us, the appeal being here on a transcript of the record only. The trial court may have seen the accused on the witness stand, and could observe his appearance and demeanor. It may have developed in evidence that the plaintiff in error was an old offender. The illegal sale of narcotic drugs is a most reprehensible practice, having a debasing influence on both the seller and the buyer and on society in general, and meriting severe punishment. The penalty here assessed was not the maximum prescribed by the statute. Under such circumstances there is no showing made which would warrant this court in modifying the sentence imposed by the trial court.

The judgment of the trial court is therefore affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    D. GLASS v. STATE.
    No. A-5148.
    Opinion Filed Nov. 14, 1925.
    (240 Pac. 752.)

      Morgan & Osmond, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Caddo county on a charge of transporting whisky the plaintiff in error, hereinafter called defendant, has appealed. The defendant contends, first, that there is no proof of the time of the commission of the offense alleged and no proof of venue; and, second, that the evidence is insufficient.

The information charges the offense to have been committed on the 24th day of December. 1928. The trial took place on the 12th day of March, 1924. George Nixon, sheriff, and W. L. Townsend, undersheriff, testifying for the state, fixed the time as the 24th day of December, without stating the year. This evidence clearly referred to the 24th day of December preceding the trial, and must have been understood so by the court and jury, and is a sufficient fixing of the time of the commission of the offense. Upon the question of venue, the witness Nixon further testified that he was sheriff of the county and, acting in his official capacity, arrested the defendant; that he saw the defendant and another man drive up in front of defendant’s house, saw the defendant take a five-gallon jug of whisky out of the car, remove it a short distance and set it down; the jug was full, almost to the top, of corn whisky; and that soon after the arrest the defendant said to him: “If a fellow monkeys with the law and gets caught, he oughtn’t to holler about it.”

The witness Townsend, who was with the sheriff at the time, testified that the circumstances took place in An-adarko. He corroborated fully the testimony of the sheriff. The court, of course, takes judicial knowledge that Ana-darko is the county seat of Caddo county. The proof of venue is sufficient. The defendant did not take the stand, and offered no testimony in his defense. The evidence is ample to sustain the verdict.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    HOMER STURGIS v. STATE.
    No. A-5169.
    Opinion Filed Nov. 14, 1925.
    (240 Pac. 750.)
    J. W. Miller, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Delaware county upon a charge of removing and disposing of mortgaged property, the plaintiff in error, hereinafter called defendant, has appealed.

The defendant contends that there is a variance between the complaint filed before the justice of the peace and the information, in that the original complaint did not charge a removal of the property, but only a sale. The transcript of the justice of the peace holding the defendant for trial in the district court is not in the record, and we are not informed for what offense he was held. The question of variance was not raised before plea to the information and is waived. Simpson v. State, 16 Okla. Cr. 533, 185 P. 116.

The record discloses that a complaint was filed before a justice of the peace charging the defendant with selling and disposing of certain mortgaged chattels. A preliminary was waived, and the information was then filed in the district court charging that the defendant “did then and there unlawfully, willfully, sell and remove and dispose of the following described property, to wit, * * * which property was then and there and had heretofore been mortgaged to the Corner Stone Bank of South West City, Mo., the said mortgage being then and there in force and effect and unsatisfied, and that sale and removal of said property being held and consummated without the written consent of the holder of said mortgage, with the felonious and unlawful intent in him, the said Homer Sturgis, to cheat and defraud the mortgagee of said property. * * *”

The defendant demurred to the information on the ground that it failed to state an offense and failed to charge that the property was removed from Delaware county, and that it is indefinite in not charging the date and execution of the chattel mortgage, which demurrer was overruled and exceptions saved.

It will be observed also that the information is duplicitous, in that it charged both a sale of mortgaged property and a removal of mortgaged property. The question of duplicity, however, was nowhere presented to the trial court, and by common consent the case seems to have been tried upon the theory that it charged only a removal. The instructions of the court were upon the theory that the information charged only a removal. The demurrer then presents only the question of the sufficiency of the information as charging a removal. The statute upon which the prosecution is predicated is section 2215, Comp. St. 1921, which is in part as follows:

“Any mortgagor of personal property * * * who, while such mortgage remains in force and unsatisfied * * * removes such property, or any part thereof, beyond the limits of the county * * * without the written consent of the holder of such mortgage, shall be deemed guilty of a felony. * * *”

It will be seen that the offense of removal is defined by the statute as a removal “beyond the limits of the county,” and for an information to properly charge the offense it is necessary that the removal must be charged to have been beyond the limits of the county, in the terms of the statute or by words of similar import. The information before us •is wholly lacking in such allegation, and is therefore insufficient. It is obvious that there might be a removal of the property from the place of its location when mortgaged to another part of the county or to another place in the county, and such removal would not be an offense under the statute. It is necessary that the indictment or information allege every essential element of the crime intended to be charged. Buffo v. State, 4 Okla. Cr. 516, 113 P. 233; Cheeves v. State, 5 Okla. Cr. 361, 114 P. 1125; Stout v. Territory, 2 Okla. Cr. 500, 103 P. 375.

For the reasons assigned, the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


author: EDWAEDS, J.

text:
    JOHN ZUPON v. STATE.
    No. A-5138.
    Opinion Filed Nov. 14, 1925.
    (240 Pac. 755.)
    Titus & Talbot, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWAEDS, J.

From a conviction in the county court of Alfalfa county on a charge of having possession of intoxicating liquor with intent to sell, the plaintiff in error, hereinafter called defendant, has appealed.

An examination of the record discloses that the sheriff and a deputy went to the farm where the defendant and his father resided. The father was not at home, and the officers made request of defendant to be allowed to search for intoxicating liquor, which was denied by the defendant unless they had a search warrant. They later procured a search warrant and searched the premises, and in a small draw or canyon, about one-fourth of a mile from the house covered deep with straw they found three barrels of what they designated as “mash,” and in the cellar of the house they found several jars of a fermented liquid and two Coleman burners. Analysis of the contents of the barrels showed it to contain 9 per cent of alcohol, measured by volume. The sheriff testified that in his judgment the liquid was capable of being used as a beverage. There was also evidence introduced that a short time prior to the finding of the mash two individuals had bought whisky from the defendant.

The defendant testified in his own behalf that where the barrels were found that there was a draw, and considerable work had been done there to stop the land from washing, and several loads of straw dumped for that purpose; that he had not placed the barrels there and knew nothing of them; and that the contents of the jars found in the cellar was merely some fruit that had spoiled, or in a spoiling condition, out of which he was making vinegar.

The defendant contends that the court erred in permitting proof of the sale by defendant of whisky at some prior date. Proof of an unrelated independent offense is not admissible against a defendant charged with a crime except where it has some logical connection with the offense charged, or where it tends to prove motive or intent, or falls within some other exception making it admissible. In this case there was circumstantial proof sufficient to carry the case to the jury on the possession by the defendant of intoxicating liquor. The quantity found is prima facie proof of the intent to sell (Quinn v. State, 8 Okla. Cr. 478, 128 P. 1104; Billingsley v. State, 4 Okla. Cr. 597, 113 P. 241; Rogers v. State, 19 Okla. Cr. 1, 197 P. 525), but the state is not precluded from proof of intent by other evidence; and the proof of sales on a prior occasion, not too remote, would be some evidence of the intent with which the particular liquor was kept.

Our attention has not been called to any case directly in point stating this view of the law. In the case of Kirk v. State, 11 Okla. Cr. 203, 145 P. 307, it was said :

“* * * The Attorney General contends that under the doctrine of the Wilkerson Case, 9 Okla. Cr. 662, 132 P. 1120, the general reputation of the defendants as to being bootleggers was competent and admissible. We do not assent to this contention. The Wilkerson Case was a prosecution for unlawful possession with intent to violate provisions of the prohibitory law. It is held in that case, and uniformly in all cases where the offense charged was unlawful possession, that testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent. * * *”

An examination of the Wilkerson Case, there referred to, however, disclose1* that that case does not hold as fully as indicated in the Kirk Case. Frazier v. State, 31 Okla. Cr. 322, 239 P. 186.

The second contention made by defendant is that the evidence is not sufficient to sustain the verdict. The evidence is circumstantial, but the circumstances are such that the jury might logically and reasonably find that the defendant had possession of the liquor in question with the intent to sell, and that it was capable of being used as a beverage. Finding no reversible error, the case is affirmed.

BESSEY, P. J., and DOYLE, J„ concur.


author: DOYLE, J.

text:
    JIM TENNISON v. STATE.
    No. A-5197.
    Opinion Filed Oct. 24, 1925.
    Rehearing Denied Nov. 14, 1925.
    (240 Pac. 323.)

      E. E. Ammons, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, Jim Tennison, was tried and convicted on an information charging that in McIntosh county, December 25, 1922, he did shoot one Sidney Warren with a pistol, with the felonious intent then and there to kill the said Sidney Warren, and in accordance with the verdict of the jury he was, December 7, 1923, sentenced to be confined in the state penitentiary at Mc-Alester for a term of nine months.

The only errors assigned are that the evidence is insufficient to sustain the verdict, and that the court erred in not granting a new trial.

There is very little conflict in the evidence. It appears that plaintiff in error, Tennison, and W. I. Sherbit appeared at the home of Sidney Warren, an old colored man, living near Eufaula, about 2 o’clock in the morning, they called Warren to the door and told him they wanted to borrow a jug or some fruit jars, and they offered him a drink of whisky from a bucket that one was carrying in his hand. He told them that he did not have any jugs or fruit jars and they left. Shortly afterwards Warren heard something disturbing his turkeys; he ran out in the yard and saw two men running from the turkey pen through the cotton patch. He went back to the house, put on his shoes and ran down the land about 600 yards to where there was a gap in the fence and there waited. The parties walked up to the gap, and he demanded his turkeys and the shooting occurred.

He testified in part as follows:

“I was sitting there and heard them talking, they came to the gap; Sherbit was ahead, and he had a sack on his ■shoulders, and the defendant was right behind him. I says, ‘Give me my turkeys,’ and this fellow Jim Tennison shot me with a pistol, the bullet hit me just above the knee and passed through my leg, then I shot at them and they ran off.”

As a witness in his own behalf, Jim Tennison testified that he was with W. I. Sherbit that night and Sherbit went to a house near Eufaula and came back with a lard bucket full of whisky and together they stopped at Sidney Warren’s to get a jug or a jar to put the whisky in; it was then about midnight; that Warren refused to give them a jug or jar and they left Warren’s together, after going a little ways they separated, witness started to go to his cousin’s and Sherbit said that he was going back and make Warren let him have a jar; that witness got lost in the dark and after wandering around saw a man ahead of him in the road, just then he heard several shots, and he ran up the road towards Eufaula; that before reaching town Sherbit overtook him, and they came into Eufaula together, they met an officer and Sherbit told him that he was the fellow that did the shooting.

It is the province of a jury in a criminal case to try the issue joined by a plea of not guilty, and, if the evidence of the state uncontradicted will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.

The record in this case shows no such condition as would justify this court in holding that the verdict was contrary either to the law or the evidence. The assignment that the court erred in overruling the motion for a new trial presents no other question.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JIM TENNISON v. STATE.
    No. A-5198.
    Opinion Filed Oct. 24, 1925.
    Rehearing Denied Nov. 14, 1925.
    (240 Pac. 324.)
    E. E. Ammons, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in McIntosh county, December 25, 1923, Jim Tennison and W. I. Sherbit did commit the crime of grand larceny as defined in Penal Code, §2119, C. S. 1921, in that they did feloniously, in the nighttime of said day, steal, take, and carry away certain domestic fowls, to wit, one black gobbler turkey and one black gray hen turkey, the property of one Sidney Warren, from the premises upon which the dwelling house in which said Warren resided was situated.

It appears that the defendant W. I. Sherbit was not apprehended, and on his separate trial the jury returned a verdict finding the defendant Jim Tennison guilty as charged in the information, and leaving the punishment to the court. December 7, 1923, the court rendered judgment and sentenced the defendant Tennison to be confined in the state penitentiary at McAlester for a term of four years.

The judgment recites that the sentence may commence at the expiration of the 9 months’ sentence in case No. 914. Said sentence to run nonconcurrently.

It will be observed that this is companion case to that of Tennison v. State, 32 Okla. Cr. 257, 240 P. 323, conviction of shooting another with intent to kill, this day affirmed.

In addition to the usual assignments of error, that the verdict was contrary to the evidence, and error in overruling the motion for a new trial, both of which are waived, it is urged on behalf of plaintiff in error that the punishment imposed by the court is excessive.

Counsel in his brief says:

“Plaintiff in error most earnestly contends that the trial court erred in the infliction of the punishment, and the term of four years in the penitentiary for stealing a turkey, when the jury in the former case, wherein the plaintiff in error was charged with assault to kill on the owner of said turkey, assessed the punishment at nine months in the penitentiary.”

It is both the spirit and intention of our laws that sentences should be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law.

In consideration of the record before us, our conclusion is that the judgment and sentence of four years’ imprisonment in the penitentiary should he modified by reducing the sentence to a term of one year, and, as thus modified, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JEFF SETTLES et al. v. STATE.
    No. A-5166.
    Opinion Filed Nov. 16, 1925.
    (240 Pac. 756.)
    Sam K. Sullivan, Neal A. Sullivan, R. J. Shive, and Matson & Mathers, for plaintiff in error.

      The Attorney General, for the State.
   BESSEY, P. J.

The plaintiffs in error, here denominated the defendants, by separate verdicts of the jury were found guilty of the illegal possession of whisky. The punishment of defendant Settles was assessed at a fine of $500 and confinement in the county jail for 6 months; the punishment of Ruth McFarland was fixed at a fine of $250 and 90 days in jail.

In the town of Tonkawa, in Kay county, there waá a. building, the upper story of which was known as the McFarland rooming house. The lower front portion of the. building was occupied as a secondhand furniture store; the rear portion of the lower floor was used as a garage. A search warrant was issued and delivered to certain peace officers, authorizing them to search the “McFarland rooms,” describing their location, for intoxicating liquors said to be kept there in violation of law.

Under authority of this warrant the officers went to this rooming house, where they entered a room occupied by defendant Settles, who was then ill and confined to his bed. While they were in this room they heard a crash as of breaking glass in an adjoining room. Upon entering this latter room they found defendant Ruth McFarland, and in the sink was a broken bottle; some liquid had fallen or splashed, presumably from this bottle, upon the floor, and from it emanated a pungent odor like that of whisky. The search was continued, but no other evidences of liquor were found in any of the rooms on this floor.

Later that day, or possibly the following day, the officers went into the front part of rooms below and made a search among the furniture. In the rear portion, used as a garage, they procured a spade, and under the ground a jug containing whisky was found.

The state offered no evidence showing, or tending to show, that the rooms on the lower floor, occupied as a furniture store and garage, belonged to the defendants or either of them, or that they exercised any control over them. The whisky found in the'excavation in the garage was marked as an exhibit, and introduced in evidence over the objections of the defendants.

The defendants denied that they had whisky in the rooms above, and denied that they had any knowledge of the whisky found in the garage, and stated that the furniture store and garage were not a part of their premises, and that they had no control over them; they also named the person who occupied and operated the premises below.

It is elementary that a defendant charged with illegal possession of whisky must be charged with but one offense, and that the proof should be limited to evidence supporting that offense, directly or indirectly. Other offenses may be shown if they are connected with the same transaction and are a part of the res gestee; or separate offenses not too remote and reasonably tending to show an illegal intent may be shown. But in this case the evidence of the finding of the liquor in the garage portion of the building was inadmissible, because no proper predicate had been laid showing that these defendants had any connection with it.

Evidence was properly admitted tending to show that the McFarland rooming house was a place of public resort and bore a bad reputation as being a place where liquors were illegally kept and sold. Caffee v. State, 11 Okla. Cr. 263, 145 P. 499.

Where the charge is illegal possession, previous specific violations of the prohibitory laws, not too remote, may be shown when such violations reasonably tend to establish an illegal intent to sell the particular liquor seized or any liquor found in the possession of the accused. But such evidence should be introduced only for the purpose of showing intent, and the jury should be so instructed. Zupon v. State, 32 Okla. Cr. 255, 240 P. 755.

Over the objection of the defendants a woman taken from the jail testified that she saw liquor sold and kept for sale by the defendants about six months previous, at the McFarland rooms. Under the circumstances, this was too remote, and in any event the court should limit the application of such testimony to the question of intent of the parties relative to the particular liquor found when the arrest was made.

Under the evidence before them, guided by the instructions of the court as given, some of the jurors may have believed that the defendants were in illegal possession of the whisky found in the garage, while other jurors may have believed that they had illegal possession of the liquor said to have been destroyed in the sink, or of the whisky said to have been sold by the defendants months earlier.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    TOM RUDOLPH v. STATE.
    No. A-5266.
    Opinion Filed Nov. 16, 1925.
    (240 Pac. 761.)

      E. J. Giddings, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction of murder and sentence of imprisonment at hard labor in the penitentiary for life, rendered upon plea of guilty, entered by appellant, Tom Rudolph, upon his arraignment on an information charging him and others with the crime of murder.

The information filed in the district court of Oklahoma county, January 18, 1924, charged that Frank Brumley, Eustace Knight, Herman Fox Davis, and appellant, Tom Rudolph, did, in said county, on the 9th day of November, 1923, kill and murder Paul J. McCarthy by shooting him with a pistol, then and there held in the hands of the defendant Frank Brumley.

The several assignments of error present but two questions: First, whether the court erred in denying appellant’s motion for leave to withdraw his plea of guilty and plead not guilty; second, whether the court erred, in overruling his motion for a new trial.

It appears that the defendant Frank Brumley upon his separate trial was convicted, and in accordance with the verdict of the jury was sentenced to imprisonment at hard labor in the penitentiary for life; that the defendant Herman Fox Davis on his separate trial was convicted, and in accordance with the verdict of the jury was sentenced to imprisonment at hard labor in the penitentiary for life, from the judgment an appeal was taken to this court, and by its decision was affirmed (Davis v. State, 31 Okla. Cr. 109, 237 P. 471) ; that the defendant Eustice Knight pleaded guilty, and was by the court sentenced to imprisonment at hard labor in the penitentiary for life.

Our Code of Criminal Procedure provides:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” Section 2621, C. S. 1921.

It has been uniformly held by this court that if a defendant in a criminal case enters a plea of guilty, it is within the discretion of the court whether it will allow the plea to be withdrawn and a plea of not guilty substituted.

The record shows: That upon arraignment the defendant was represented by counsel, and after the reading of the information the.following proceedings were had:

“The Court: Mr. Rudolph, do you desire to enter a plea to this charge at this time?
“Defendant Rudolph: Yes, sir.
“The Court: What is that plea, Mr. Rudolph?
“Defendant Rudolph: Guilty.
“The Court: You understand, do you, that if you enter a plea of guilty that it will be necessary for the court to either sentence you to life imprisonment or to the electric chair?
“Defendant Rudolph: Yes, sir.
“The Court: And understanding that you desire to enter a plea of guilty, do you?
“Defendant Rudolph: Yes, sir.
“The Court: You do this of your own free and voluntary act, freely and voluntarily, enter this plea of guilty? You haven’t been coerced or induced by promises from any one, any of the officers or any one else, to enter this plea of guilty?
“Defendant Rudolph: No, sir.
“The Court: All right; let pleas of guilty be entered oh the part of Mr. Knight and Mr. Rudolph.”

That this plea was entered January 19, 1924.

It appears that at the time defendant Rudolph was arraigned the county attorney handed to the court two separate statements previously made by the said defendant Rudolph; that the court examined and read the same before judgment and sentence was passed upon the defendant on February 9, 1924, which statements are confessions, purporting to show all the facts and circumstances in connection with the homicide.

It appears that on February 9th the following proceedings were had:

“The Court: Are you ready for sentence Mr. Smith?
“Mr. Gomer Smith: Yes, sir.
“The Court: You have entered a plea of guilty to the charge of murder here several days ago and sentence was deferred. Are you each ready now to be sentenced? Are you ready, Mr. Rudolph, for the sentence to be imposed?
“Defendant Rudolph: Yes, sir.
“By the Court: I might say that a few minutes ago the telephone rang, and I answered the phone, and some lady answered, saying she was Mr. Giddings’ stenographer, and she said Mr. Giddings had filed an application to have the plea heretofore entered withdrawn. Is that true? What are the facts about it?”

Whereupon Mr. Gomer Smith, counsel for the defendant, stated in substance that, having learned that E. J. Giddings was claiming to represent these defendants, he went to the county jail, and they informed him that they had not employed E. J. Giddings to represent them; that he did not represent them; that they still wanted him to represent them; that he was their counsel, and he would like to have the court inquire of these defendants what their desire is or what authority E. J. Giddings has to present the application for withdrawal of the plea.

“The Court: As I understand, the provisions of the law is to do justice and not to take advantage of the court, and I want you young men to understand that no advantage is going to be taken in this court. If you desire to, you have the privilege of withdrawing your plea and going to trial before a jury; if you do not desire to do that and desire your plea to stand as it is, why then, in the degree of punishment, the court will follow the recommendation of the county attorney. The county attorney has never agreed to a recommendation or told me what to do along that line. With that statement, Mr. Knight, is it your desire that your plea of guilty heretofore entered stand as your plea?
“By Defendant Eustace Knight: Yes, sir.
“The Court: And Mr. Rudolph, is it your desire that your plea heretofore entered of guilty to the charge, stand as your plea?
“By Defendant Tom Rudolph: Yes, sir.
“The Court: Well, then; is it the desire of you, Mr. Knight, to withdraw your plea?
“Defendant Knight: No, sir.
“The Court: Is it yours, Mr. Rudolph?
“Defendant Rudolph: No, sir.
“The Court: Then, does Mr. Smith, who appears in court with you — is he your attorney and the attorney of you men, both of you?
“Defendant Knight: Yes, sir.
“Defendant Rudolph: Yes, sir.
“The Court: And does Mr. Giddings represent you or has he represented you, or, either of you?
“Defendant Eustace Knight: No, sir.
“Defendant Tom Rudolph: No, sir.
“The Court: I suppose, then, that the proper course to pursue, then, would be, before sentence is passed, would be possibly for the young men themselves to withdraw that application.
“Mr. Smith: I don’t think that sentence could be imposed with the record showing that the application is not withdrawn.
“Mr. Smith: Well; let the record show, in open court, that I, as counsel, appearing for them, withdraw the motion to set aside and to withdraw the motion heretofore filed to withdraw their plea of guilty, and enter a plea of not guilty, and that we desire to proceed, at this time, with the record showing that motion withdrawn. Is that satisfactory, Mr. Knight?
“Defendant Eustace Knight: Yes, sir.
“Mr. Smith: Is that satisfactory, Mr. Rudolph?
“Defendant Tom Rudolph: Yes, sir.
“Mr. Smith: That’s what you want to do?
“Defendant Eustace Knight: Yes, sir.
“Defendant Tom Rudolph: Yes, sir.
“The Court: All right; let the record so show. Now Mr. County Attorney, do you have a recommendation you desire to make?
“Mr. Wright: If the Court please: We feel that under all the conditions of this case and the statements made by these young men that we would be warranted in recommending that the court sentence to a life term of imprisonment.
“The Court: After hearing the evidence in the case we have been trying all week, Mr. County Attorney, I am very strongly inclined to make some remarks, possibly, that I oughtn’t to make and to put into the record here, but in view of the fact that the case is not closed, and with the possibility that any statement that I might make, through the columns of the papers or otherwise, might get to the jury now deliberating, I am going to refrain from doing it.
“The Court: Mr. Rudolph have you anything to say now why the sentence of the court should not be pronounced against you ?
“Defendant Tom Rudolph: No, sir.
“By the Court: Mr. Rudolph; it is the judgment and sentence of this court on your plea of guilty that you be taken from the bar of this court to the county jail, and from there to the state penitentiary at McAlester, where you will be required to serve at hard labor for the period of your natural life.”

Thus it appears that the utmost care was taken by the court to apprise this defendant of his legal rights and of the peril of his plea. Upon his answers, nothing further remained for the court but to pronounce the judgment and sentence.

It appears that the grounds of the motion for a new trial are the same as those advanced in the motion to withdraw the plea, with the additional ground that the state, in using the said defendant, Tom Rudolph, as a witness on the trial of his codefendant, Frank Brumley, thus com-polling him to give evidence tending to incriminate him, thereby granted him immunity as a constitutional right under section 27, art. 2, of the state Constitution.

The question of immunity is not presented by the record on this appeal, in that there is nothing in the record before us tending to show that appellant was not a voluntary witness for the state on the trial of his codefendant, Brumley. That he was a competent witness for the state, either before or after conviction, against the others, there can be no doubt. Dumas v. State, 19 Okla. Cr. 413, 201 P. 820. “Before any person can secure immunity under section 27” art. 2 of the Constitution, “on account of incriminatory evidence, given by him as a witness” for the state, “such witness must have testified under an agreement made with the prosecuting attorney, approved by the court, or such witness must have claimed the privilege of silence, which was by the court denied, and such witness must have been compelled by the court to so testify.” Scribner v. State, 9 Okla. Cr. 465, 132 P. 933, Ann. Cas. 1915B, 381; Tague v. State, 15 Okla. Cr. 55, 174 P. 1106; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521.

It is also contended for appellant that upon the facts as stated by him in his written confessions, which were •submitted to the court, he is not guilty of the offense charged. His confession shows that he was present when his three codefendants planned the robbery. Then Davis and Brumley got in on the back seat of Knight’s car, and he sat with Knight in the front seat. That it was then about 11 o’clock, and they drove to the Broadway Circle Pharmacy. Then he, with Brumley and Davis, got out of the car, and they went into the drugstore, and Davis talked to some one over the telephone. That when they came out Davis said, “Drive to Twenty-First and Robinson” and Brumley said, “Yes; Paul will meet us.” That they got back into the car and drove on out to Twenty-First and Robinson, and, leaving Brumley and Davis at Twenty-First and Robinson, Knight drove the car back to town. That Brumley had a 45 gun, and after leaving the drugstore he heard him say that he would sit in the back seat of McCarthy’s car and Davis in the front seat, and they would pull the gun on him and take him out on Twenty-Third street and rob him, put him out, and drive his car back to town.

It is a rule of the law that where the accused has entered into a .conspiracy with others to commit a felony, or other crime, under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to follow the carrying into effect the purpose of the unlawful combination, and also to have assented to the doing of whatever would reasonably or probably be necessary to accomplish the object of the conspiracy, even to the taking of life. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his coconspirators may do in furtherance of the common design whether he is present or not.

Under this view of the law and the facts as stated in the defendant’s confession, he is guilty of murder.

The other questions argued are not presented by the record.

A careful examination of the whole record leads to the conclusion that the motion for a new trial was properly overruled.

The judgment appealed from herein is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    GERALD CUMMINGS v. STATE.
    No. A-5292.
    Opinion Filed Nov. 17, 1925.
    (240 Pac. 1078.)
    Ed. Crossland, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Tulsa county in which the defendant, Gerald Cummings, was found guilty of the offense of having possession of intoxicating liquor with intent to sell the same. The jury fixed the punishment at a fine of $800 and confinement in the county jail for 60 days.

A number of errors are assigned; the first is as follows : Refusal of the trial court to permit defendant to examine jurors on their voir dire as a basis for an intelligent exercise of his peremptory challenges.

The record shows that the court refused to permit the following question to be asked of each juror on his voir dire:

“Are you a member of what is known as the Knights of the Ku Klux Klan, or what is known as the Invisible Empire?”

In Menefee v. State, 30 Okla. Cr. 400, 236 P. 439, we held that—

“Refusal to permit jurors to answer the defendant’s question whether they belonged to the Ku Klux Klan, for the purpose of laying a foundation for peremptory challenge of jurors, held reversible error.”

In the opinion it is said:

“The Constitution guarantees to every defendant in a criminal case a fair trial by an impartial jury. In order to determine whether the person called as a juror possesses the necessary qualifications, whether he has prejudged the case, whether his mind is free from prejudice or bias, the defendant has the right to ask him questions, the answer to which may tend to show that he may be challenged for cause or disclose a state of facts upon which the defendant may see proper to reject such juror peremptorily.”

Upon the record in this case we are not called upon to decide whether an affirmative answer to the question propounded to the jury would have been grounds for chai-lenge for cause. The questions were asked with a view of ascertaining facts upon which to base a peremptory challenge, and for this purpose they were proper, and should have been answered.

The evidence shows that on the date alleged, under authority of a search warrant, the officers visited the defendant’s home, two or three miles northeast of the town of Bixby, and searched the premises.

When the case was called for trial the defendant objected to the introduction of any testimony being given by the witness J. A. Sewell, W. E. Pinion, and J. F. Donaldson, whose names are indorsed on the information, for the reason that the search and seizure was made by these witnesses under a search warrant; that it was issued by the county judge of Tulsa county on January 7, 1924; that at that time there was no affidavit made by any one or by J. A. Sewell, and said search warrant was therefore void. In support of the objection the affidavit and search warrant were offered in evidence, and the court refused to admit the same, saying, “The record may show they were offered and refused.”

The record shows that the affidavit upon which the search warrant was issued recites:

“That the said liquor is being disposed of and kept in the manner aforesaid by one John Doe, whose real name is unknown to informant, on the following described premises, situate in Tulsa county, to wit: Section 18, 17, 14, East Tulsa county, frame house, outbuildings, and surrounding premises.
“[Signed] J. A. Sewell.
“Subscribed and sworn to this 8th day of January, 1924.
“Hal Turner, County Clerk.”

The search warrant issued thereon concludes:

“In witness whereof I have hereunto set my hand this 7th day of January, 1924.
“[Signed] John P. Boyd, Judge of the County Court.”

Thus it appears that said search warrant, issued one day before the affidavit upon which it was issued, was verified.

Against the same objection the three witnesses named testified for the state. At the close of the testimony of each witness the defendant moved to strike on the ground that “the search warrant calls for a search of a section of land, and does not state in what part of the section the defendant resides, and that he did not own all the premises.”

At the close of the state’s case, the defendant’s counsel asked the court to direct or advise the jury to return a verdict of not guilty upon the ground that all the evidence admitted in the case was incompetent, because the same was obtained in serving a void search warrant, which motion was overruled.

It is the well-settled doctrine in this state that constitutional provisions against unreasonable searches and seizures, and against compelling one to be a witness against himself, secure the individual in his person, his home, and his property from invasion by officers executing illegal and void search warrants.

In the case of Wiese et al. v. State, 32 Okla. Cr. 203, 240 P. 1075, we held:

“Affidavit for search warrant, describing the place to be searched as a certain section of land, and without naming the owner, is insufficient to furnish the particular description of the place to be searched, where it appeared that the land so designated was owned and occupied by several persons, so that it was in fact several places.”

The record in this case shows beyond a doubt that the search warrant in this case was not issued in accordance with law.

It has been repeatedly decided by this court that evidence obtained by an unlawful search and seizure, and contrary to section 30 of the Bill of Rights, is inadmissible against the defendant as being in violation of section 21 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    R. E. GILL v. STATE.
    No. A-5133.
    Opinion Filed Nov. 20, 1925.
    (240 Pac. 1073.)

      Hoyt & Butler, for plaintiff in error.
    . George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Dewey county on a charge of open and notorious adultery, the plaintiff in error, hereinafter called defendant, has appealed.

The record discloses a state of facts about as follows: That the defendant was a married man, having a wife and two children at Wichita Falls, Tex. He was an employee of the Wichita Falls & Northwestern Railway Company, as brakeman, and had become acquaintéd with one Florence Darlymple, an unmarried woman, who resided at Vici, where she was employed in the household of W. T. Eckhart. On three different occasions the defendant came to the premises of Eckhart, where the said Florence Darlymple introduced him to Eckhart and wife as her husband, and on each occasion he spent the night with her, and on each occasion they occupied the same room in which there was but one bed. Some communication came to the county attorney and sheriff, and the defendant was arrested, and at the time informed the arresting officers that he had a wife in Texas, and was not married to Florence Darlymple, but was passing as her husband to protect her. So far as the evidence discloses, no one among the neighbors and acquaintances of the parties prior to the arrest of the defendant knew that the defendant and Florence Darlymple were not married or that their relations were adulterous. The prosecution was not commenced nor carried on by the wife of the defendant. The defendant testified in his own behalf, corroborating the evidence of the state that he had posed at the home of the Eckharts as the husband of Florence Darlymple. He admitted that he had stayed in the same room with her on the occasions testified to by Eck-hart, but denied any act of intercourse. The evidence of Florence Darlymple, who testified for the defendant, was substantially to the same effect. The jury returned a verdict of guilty, but did not agree on the punishment, and it was assessed by the court at a fine of $500.

The contention is made that the evidence does not establish a case of open and notorious adultery, but at the most proves only what may be termed ordinary adultery, citing section 1852, Comp. St. 1921; Harris v. State, 11 Okla. Cr. 270, 145 P. 759; Spencer v. State, 14 Okla. Cr. 178, 169 P. 270, L. R. A. 1918F, 592; Kitchens v. State, 10 Okla. Cr. 603, 140 P. 619; Barber v. State, 15 Okla. Cr. 588, 179 P. 790; Burns v. State, 17 Okla. 26, 182 P. 738; Copeland v. State, 10 Okla. Cr. 1, 133 P. 258; People v. Salmon, 148 Cal. 303, 83 P. 42, 2 L. R. A. (N. S.) 1186, 113 Am. St. Rep. 268; State v. Sekrit, 130 Mo. 401, 32 S. W. 977.

The statute under which this prosecution is had (section 1852, Comp. St. 1921), is as follows:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime. Provided, that any person may make complaint when persons are living together in open and notorious adultery.”

It will be observed that a prosecution for adultery may be commenced and carried on against either of the parties only by his or her own husband or wife, or by the husband or wife of the other party to the crime, with the exception or proviso that, if the adultery is open and notorious, any person may institute a prosecution.

The evidence in this case reasonably proves the commission of adultery between the defendant and the said Florence Darlymple. We think their evidence that no act of sexual intercourse took place between them is to be given no credence. In any event, it was a question for the jury.

In a prosecution for adultery, positive evidence of the direct fact is not required, and the fact of intercourse is properly inferred from circumstances that lead to it by fair inference as a necessary conclusion. If the prosecution of this case had been commenced and carried on by the wife of the defendant, there is no question but that the case should be affirmed. But the question here before us is, Does the evidence establish a case of open and notorious adultery? What constitutes open and notorious adultery has been considered by this court in several of the cases above cited. Whether or not an act is open and notorious is a question of fact to be determined by a consideration of all the facts and circumstances surrounding the offense charged. There is no question but what the relation of the parties was open; that is, they conducted themselves in the presence of Eckhart and wife on the occasions testified to as if the conjugal relation existed between them.

In the case of Kitchens v. State, supra, it is said:

«<* * * j-fc js sufficient if they lived together and behaved themselves in each other’s presence in the familiar manner of husband and wife, and their lewd and lascivious conduct was witnessed by other persons. * * *”

This conduct would be sufficient to render their relationship open, but, in order that a prosecution may be instituted by any other than the husband or wife, as the case may be, of one of the offending parties, it is necessary that the adulterous relation shall be also notorious.

The word “notorious” comes from a Latin word meaning to know, and is defined by Webster as “generally known and talked of; well, widely, or commonly known; forming a part of common knowledge; noted; universally recognized. * * *” Morgan v. Strand, 133 Iowa, 299, 110 N. W. 596; State v. Crowner, 56 Mo. 147.

In the case of Spencer v. State, supra, it was held:

“* * * It is sufficient if the adulterous relationship became generally known among the neighbors and acquaintances of the parties before it ceased and prior to the commencement of the prosecution. After that, proof of a single day’s continuance of the unlawful relationship is sufficient to sustain a conviction.”

In that case, Spencer, a married man, and his paramour lived together as husband and wife for a long period of time without any of the neighbors suspecting that their relationship was other than marital, and, upon it being discovered that they were not husband and wife, the defendant agreed to leave the community, and did so, but later returned, and continued the unlawful relation, after it had become generally known that such relation was adulterous. It was contended that the trial court erred in refusing to give instructions based on the theory that the defendant and paramour were not husband and wife, and that it must have been known to the community generally during all of the time they lived together in such relation in order to constitute the offense of open and notorious adultery. Upon that contention this court said:

“We do not understand that to be the law of this state. It is sufficient if the adulterous relationship became generally known among the neighbors and acquaintances of the parties before it ceased and prior to the commencement of the prosecution. After that, proof of a single day’s continuance of the unlawful relationship is sufficient to sustain a conviction.”

In the case of Barber et al. v. State, supra, it was held:

“To constitute ‘living in open and notorious adultery’ under the statute, there must be something more than occasional illicit intercourse indulged in;.the parties must reside together publicly in the face of society, as if conjugal relations existed between them, and their so living must become generally known in the community in which they live.”

Evidently it was the purpose of this statute that families should not be broken up by prosecutions instituted by those not directly concerned for mere occasional and illicit acts of adultery. But in such cases, if the husband or wife of the offending parties, as the case might be, condoned the offense, prosecution should not be had. But to prevent the public scandal and disgrace which would follow the living together of a married person with another, and to protect the public morals, and to prevent the outraging of public decency where a spouse might be unwilling to prosecute, the law in its wisdom provided when such adultery was open and notorious that any person might make complaint. Such relationship, however, is not notorious where it is not known to any member of the community or acquaintance of the parties until after the prosecution is instituted. In order to prove the offense of open and notorious adultery so that a prosecution may be commenced and carried on by a person other than a spouse of one of the offending parties, there must be some evidence that it was known in the community that the claimed relation of husband and wife was false. When there is no such evidence, the proof does not show notoriety. There is a defect of proof of a notorious adultery between the parties, and it follows that no one but the wife of the defendant could commence and carry on the prosecution.

The case is reversed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    TNNA BRENNAN v. STATE.
    No. A-5241.
    Opinion Filed Nov. 20, 1925.
    (240 Pac. 1084.)
    L. F. Robertson, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Woodward county, October 1, 1923, Thomas Gipson and Anna Brennan “did then and there willfully and unlawfully convey intoxicating liquor, to wit, one pint of whisky, from some place in the county of Woodward to the county attorney unknown, to another place therein, to wit, to a place about 80 rods west of the southeast corner of section 6, township 24 north, range 18 west I. M., in Woodward county.”

On the separate trial of the defendant, Anna Brennan, the jury returned a verdict finding her guilty as charged in the information, and fixing her punishment at a fine of $50, and confinement in the county jail for 30 days. To reverse the judgment rendered on the verdict she has appealed to this court. The errors assigned question the sufficiency of the evidence to sustain the verdict.

Roy C. Robinson testified that on the date alleged he was on his way to a sale, and passed the defendants in his car; that Gipson was sitting in an open buggy, and Mrs. Anna Brennan was out on the north side of the road, where it crosses a canyon that had running water; that he told Del Clark, deputy sheriff, that he saw Mrs. Brennan by the side of the road in the canyon.

Del Clark testified that he had a commission as deputy sheriff; that he was at the Mayes sale, about 10 miles north of Mooreland; that Roy Robinson told him about seeing Mrs. Brennan and old man Gipson at the place described in the information, and with Everest Teters, deputy sheriff, he went to the place, and on the west bank of the canyon Teters found a quart jar of liquor by a fence post; that he observed a woman’s tracks in the grass. That about 30 minutes later Mrs. Brennan and Gipson came down the road in a buggy. Gipson stopped the team after they got past the water, and Mrs. Brennan got out and started to where the jar was. That he beat her to it, and picked it up when she was about 8 feet from it. That they arrested the defendants and brought them to Woodward.

The third witness called by the state was the code-fendant, Thomas Gipson. His testimony is as follows: .

“My age is 67 years. I was working for Mr. Brennan, pulling broom corn. I went with Mrs. Brennan in a buggy to the Mayes’ sale. Every time we would go down hill the traces would come unhooked, and in crossing the canyon I stopped to fix the traces. Mrs. Brennan said she wanted to get out. Then she went over on the north side of the road, and I drove on about 100 yards. After we had started on a car passed us. I did not see any liquor that day, and the only thing in the buggy was an oil can. When we were returning from the sale I stopped at the same place to water the team. Mrs. Brennan bought a rocking chair at the sale. It was tied on the back of the buggy, and was about to jostle off, so I got out and took a hitch rein and tied it on again. She was standing by the side of the buggy, and the officers stepped up and pointed their guns at her and me. I did not see any whisky either before or after we were arrested.”

On cross-examination he stated that he remained in jail for 150 days, and had been out about 2 weeks at the time of the trial; that he did not plead guilty or give bond; that the county physician reported that he was sick, and the county attorney let him out until this term of court.

C. E. Teters, deputy sheriff, testified in substance to the same facts as- did the witness Clark.

The defendant, Mrs. Anna Brennan, testified that her age is 56 years. That she lives 10 miles northwest of Mooreland with her husband, and went to the sale with Thomas Gipson, who worked for her husband. That in the canyon just before they got to the mail boxes she got out of the buggy for a personal reason. Then they drove on to the sale, where she purchased a rocking chair, which was tied on the back of the buggy. On their return, when they stopped in the canyon to water the team and to better fasten the rocking chair, Mr. Teters jumped up and threw a gun on her, and said, “You are going with us.” Mr. Gip-son said, “We are not outlaws. You don’t need a gun,” and he would not let them water the team. That she did not have any whisky that day, and did not see Del Clark pick up a jar by the roadside.

In rebuttal, the witness Teters, recalled, testified that he did not display his gun to Mrs. Brennan; that Mrs. Brennan said she wanted to water her team, just using that as an excuse.

The foregoing is a substantial statement of all the material testimony in the case. It may be that the officer did not point his gun at the old lady, but it is an undisputed fact that the officers arrested these defendants without a warrant, and there is no pretense that the offense charged was committed in their presence. The old man it appears remained in jail without a trial for more than 5 months. The state elected to proceed against the woman alone, and on the trial called her codefendant as a witness for the state. TJnder his testimony the offense charged was not committed, and no claim was made that the.state was misled or surprised by his testimony, and no attempt was made to impeach him by proving former contradictory statements. The general rule is that the party calling a witness certifies to his credibility. Assuming as true the testimony of the officers to the effect that this defendant walked toward the place they found the fruit jar, that circumstance, with the other circumstances in evidence, is insufficient to make out a circumstantial case. If it was shown that this defendant had possession of the whisky in question or took it into her possession before her arrest, then it would be a case of circumstantial evidence.

In Brown v. State, 18 Okla. Cr. 509, 196 P. 987, we held that in a prosecution for ^conveying intoxicating liquors it is essential to sustain a conviction that the state prove the conveyance as alleged.

In the opinion it is said:

“A conviction based on surmise and suspicion of guilt should not be permitted to stand. Otherwise the liberty of the innocent citizen would be jeopardized.”

Upon a consideration of all the evidence in the case, we are of the opinion that it is wholly insufficient to warrant a verdict of guilty, and for this reason the court erred in overruling the defendant’s motion for a new trial.

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

BESSEY, P. J., and EDWARDS, J., concur.


text:
    EDDIE DURANT v. STATE.
    No. A-5027.
    Opinion Filed Nov. 20, 1925.
    (240 Pac. 1088.)

      I. C. Sprague, for plaintiff in error.
    George F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of McCurtain county on a charge of manslaughter, the plaintiff in error, hereinafter called defendant, has appealed.

The facts are about as follows: The defendant and deceased were cousins, members of the Choctaw tribe of Indians. The deceased and his wife were visiting at the home of defendant. On the day of the homicide the defendant, the deceased, the wife of each, and two sisters of the wife of deceased, were at Idabel, and in a wagon went to the home of defendant. A mile or so before they reached the home of defendant, the deceased and defendant got out of the wagon at the residence of one Sanders and purchased some whisky, which they took to the home of the defendant, and of which both the defendant and the deceased drank. About 11 o’clock at night the defendant and deceased left on horseback, going in the direction of Idabel, and again went to the house of Sanders, where they procured whisky, and there turned back toward the home of the defendant. They stopped at the house of one Wood and procured a drink of water, both were more or less-intoxicated, and the witness Wood assisted each of them to remount his horse. When they arrived at about 150 yards of the defendant’s home, about 1 o’clock at night, the defendant with a knife inflicted several wounds about the head, face, and shoulders of the deceased, left him there and returned to his house. The deceased halloed during the night; his cries becoming weaker until near morning. The next morning he was found unconscious on the ground, weak from the loss of blood, was taken to the residence of the defendant, where he died that afternoon.

The evidence indicates that both the deceased and defendant, when under the influence of liquor, were turbulent characters. There was no eyewitness to the homicide, and it is the theory of the state that the deceased was killed in a drunken row in which the deceased was unarmed. The wife of the deceased testified that when defendant returned to his house he had a bloody knife in his hand, blood on his sleeve and on his face, and asked for his gun, and said he was going back to kill Crockett Wright; that he was in a drunken condition and raved and talked about the deceased, and asked the wife if he killed Crockett Wright would she stay with him, and said that Wright would not be likely to return that night. There was some corroboration of her testimony by her sisters who were at defendant’s home. The evidence is that the deceased and defendant were friendly with each other all the time until they left the home of the defendant and even until they were at the place of the witness Wood on the night of the homicide. The defendant, in his own behalf, testified that the deceased was dangerous and threatening; that he knocked the defendant off his horse, said he was going to kill him, and was choking him when defendant drew his knife and used it in his self-defense.

Three assignments of error are argued in the brief of the defendant: First. Error of the court in limiting the evidence of the defendant as to the dangerous character of deceased. Second. Error of the court in the admission of evidence in behalf of the state Third. Error of the court in his instructions to the jury. These assignments will be considered in the order presented.

Upon the first assignment, it appears that the defendant offered evidence that the deceased was a dangerous character, and, after the defendant had offered four witnesses upon this point, the court refused to permit further testimony. This, it is argued, was an unreasonable limitation, prejudicial to the defendant, citing Haag v. Cooley, 33 Kan. 387, 6 P. 587, and Browder v. State, 30 Tex. App. 614, 18 S. W. 197; it being contended that in any event the court should have advised counsel at the beginning of the introduction of his evidence on this point in order that he might select such witnesses as in his judgment would best establish his contention. It is well settled that it is within the discretion of the trial court to limit the number of witnesses to be heard on behalf of a party to establish a point or proposition. But, where the trial judge unreasonably limits a party, it is an abuse of discretion, and in some cases would constitute prejudicial error which would warrant a reversal.

An examination of the record before us discloses that four witnesses had testified that deceased’s reputation as a violent and turbulent character was bad. This contention was in no wise contested by the state. It appears to have been conceded that the deceased had the reputation of committing acts of violence. This evidence was competent as throwing light on who was the probable aggressor at the time of the homicide. Since this point was virtually conceded by the state by its failure to attempt to refute it, the limiting of the witnesses on this point to four in number was, if error, not such as to require a reversal. In cases of this character, however, care should be exercised not to unduly limit the evidence offered by a defendant upon this or similar points.

Upon the second assignment several matters are presented. The defendant complains that the court erred in permitting the evidence of improper advance by the defendant toward the wife of the deceased on the night of the homicide after the difficulty. This contention is not borne out by the record. It appears that, after the defendant returned to his house, he came near the wife of. the deceased upon a pallet, and the question was asked, “What did the defendant do?” and, upon an objection, the court limited the inquiry to what the defendant said about Crockett Wright. This was not error.

Upon the same assignment, it is argued that the court erred in admitting evidence that the deceased and defendant were close friends and that their relationship was intimate; the defendant contending that this evidence would lead the jury to beliéve that the defendant bore the same reputation for being quarrelsome and dangerous as did the deceased, and was therefore prejudicial. Evidence of previous relations between the parties is competent as tending to cast some light on the difficulty in which the deceased lost his life. 30 C. J. 178.

Under this assignment, it is further contended that the court erred in permitting the state, on cross-examination, and on rebuttal, to ask questions and present evidence tending to show that certain of the defendant’s witnesses had approached witnesses for the state in an attempt to influence their testimony. It is always competent to show, on cross examination, the interest or bias of a witness. Such evidence is not collateral, and, where the testimony of a witness on such point, on cross-examination, is adverse to the party cross-examining, such party is not bound to accept the statement, but may offer evidence to contradict such witness. Gibbons v. Territory, 5 Okla. Cr. 212, 115 P. 129.

The third assignment is directed to the court’s instruction No. 14 as follows:

“If you find from the evidence in this case that the defendant had committed acts of violence upon and against persons other than the defendant, then you may consider that fact or those facts in connection with all the other facts and circumstances in the case as going to show who was probably the aggressor or brought about the difficulty in which the deceased lost his life.”

It will be observed that in this instruction the court used the word “defendant” in the first instance when it should have used the word “deceased.” This, it is argued, is misleading, and must have been understood by the jury as informing them that they might consider acts of violence committed by the defendant against other persons. Indorsed upon this instruction is a memorandum by the trial court that the error in his use of the word “defendant” was not called to his attention until the hearing of the motion for a new trial. We gather that the misuse of the word “defendant” for “deceased” was not detected by the court, county attorney, or counsel for the defendant until after the return of the verdict. If this, however, should be deemed prejudicial to the substantial rights of the defendant, the fact that the mistake was inadvertent would not render it any the less erroneous. 16 C. J. 1049. If, in the settling of the instructions by the court and counsel before they were read to the jury and upon their being read to the jury in open court, the mistake was not discovered by either counsel for the state, for the defendant, or by the court, then it would seem that it would not be misleading to the jury.

The intent of the instruction is obviously to advise the jury that they might take into consideration acts of violence committed by the deceased against persons other than the defendant for the purpose of determining who was the probable aggressor in the difficulty in which he lost his life, and as bearing on the question of self-defense. There was no proof of acts of violence by the defendant against other persons, and the instruction in that particular, if taken literally, would have had no meaning for the jury. Clearly, they must have understood it to apply to acts of violence of the deceased toward other persons than the defendant. While this instruction embodies a mistake and misuse of terms, it could not, we think, under the record, constitute prejudicial error.

Upon a consideration of the entire record, it appears that the defendant was fairly tried, the issues fairly submitted, and no reason for a reversal is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    BILL ROSE v. STATE.
    No. A-5091.
    Opinion Filed Nov. 20, 1925.
    (240 Pac. 754.)
    A. L. Herr, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Grady county for an attempt to rape, the plaintiff in error, hereinafter called defendant, has appealed.

The information is not clear whether the pleader sought to charge the defendant with an attempt to rape or of an assault with intent to commit rape. The allegations are probably sufficient under either statute; but the trial court evidently took the view that the information charged an attempt to rape and instructed the jury upon the law of that offense. The verdict of the jury is general, finding the defendant guilty of the crime charged, and fixing his punishment at one year in the penitentiary.

The record discloses a state of facts about as follows: Emily Balch, an unmarried female, 19 years of age, was. employed at the Gerónimo Hotel. On the date of the offense charged, she left her place of employment to go to her home where she resided, but missed the street car she intended to take, and the defendant, a married man who was a service car driver, proffered to take her home. She thereupon got in the car, and the defendant instead of taking her home, over her protest, drove out of town, and, upon her insisting that he take her home, defendant took hold of her arm and put his hand on her breast, and in the course of the drive attempted to put his arm around the prosecutrix and put his hands under her dress, but, on the refusal of the prosecutrix to permit any familiarity, he desisted. The prosecutrix made no outcry. Finally the defendant stopped his car and got out, and the prosecutrix then got out of the car, left the defendant and took another car, and returned to her home.

The sufficiency of the evidence to sustain a conviction for an attempt to commit a rape is challenged. The pros-ecutrix being above the age of 18 years, a consideration of statutory rape is not necessary, for, if the defendant attempted to commit a rape, it must be rape by force, under the fourth subdivision of section 1834, Comp. St. 1921. This section of the statute defines rape as an act of sexual intercourse accomplished with a female, not the wife of the perpetrator where she resists, but her resistance is overcome by force and violence. Then, in order to constitute the crime of attempt to commit a rape, it is essential that the state prove that the defendant attempted to accomplish an act of sexual intercourse with the prosecutrix by force and violence to overcome her resistance, and the doing of some act toward the commission of such crime, but failed or was prevented or intercepted in the perpetration thereof. An attempt is defined in section 2297, Comp. St. 1921. In order to convict a defendant of an attempt to commit rape upon a female above the age of 18 years, there must be proven a specific intent to use the force necessary to accomplish such purpose, notwithstanding the resistance of the female, and also some overt act. When the evidence proves no more than solicitation to have sexual intercourse and a technical assault while urging such solicitation, it is insufficient. State v. Kendall, 73 Iowa, 255, 34 N. W. 843, 5 Am. St. Rep. 679.

This case must be determined upon the facts presented by the record, and the conduct of the defendant, while reprehensible in the extreme, and while he is deserving punishment, yet the acts disclosed by the record fall short of proving an attempt to commit rape by force and violence, overcoming the resistance of the prosecuting witness. It •shows rather an effort to seduce or, since the defendant was a married man, to commit adultery with the prosecuting witness. The evidence, viewed from the state’s standpoint, at the best makes out no more than an extreme case of assault and battery.

For the reasons assigned, the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


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    JERRY (BLACKEY) GRIM v. STATE.
    No. A-5293.
    Opinion Filed Nov. 20, 1929.
    (240 Pac. 1093.)
    H. 0. Glasscock, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Garfield county, December 7, 1923, “one Blackey Grim did then and there unlawfully and willfully sell one pint of whisky to one B. E. Slagle.” On the trial the jury returned a verdict finding the defendant guilty, but failed to agree on the punishment. June 7, 1924, the court rendered judgment and sentenced the defendant to pay a fine of $100 and to be confined in the county jail for 30 days. To reverse the judgment he appeals.

For a proper understanding of the errors assigned, we will briefly state the material testimony.

B. E. Slagle testified: That his home is at Carmen, OMa. That on December 8th he met Mr. McNabb on the street; while talking to him another gentleman came along whose name he did not know, and together they went to the Overland rooms in Enid. There Mr. McNabb went to the telephone, called a certain number, and asked for Black-ey Grim. Defendant’s motion to strike who he asked for sustained. That in about 10 minutes Blackey Grim came there with a pint of whisky. That he gave Grim a $5 bill and Grim gave him two $1 bills. That he pulled the cork out of the bottle and it was passed around among the boys and two women there, and they all took a drink, when the bottle was handed back to him he put it in his pocket, and with Mr. McNabb and the other man left the place. That later he turned the bottle over to Chief of Police Jim Butts. On cross-examination he stated that he was employed by the city of Enid for the purpose of apprehending liquor law violators, and was paid $10 a day and his expenses; that Mayor Carr took him around the city and showed him the places he wanted him to get, and he was informed by the police department of the names of some of the boys he was to get. His further cross-examination is as follows:

“Q. Had you bought any other whisky that day? (Objected to by the state for the reason that it is incompetent, irrelevant, and immaterial).
“The Court: The objection of the state is sustained. Exception.
“Q. How much whisky did you have on you when you went to the Overland rooms at this time? (Same objection.)
“The Court: Sustained. Exception.”

W. E. McNabb testified that he went to the Overland rooms with B. E. Slagle and Henry Whittiker; Hazel White and another lady were there; that he made a telephone call and soon after defendant Grim came in; a little later hé saw B. E. Slagle trying to open a. pint bottle; then Slagle handed it to Grim and he opened it with a knife; Slagle took a mouthful and then passed the bottle around to all present; they played three or four records on the Grafa-nola, and Slagle pulled the bottle out of his pocket and passed it around the second time; that Grim took a drink each time it passed; that he heard one of the women say that she did not have any change, and she asked Grim if he had any, and Grim made the change. His cross-examination is as follows:

“Mr. McNabb, did you see this defendant, Blackey Grim, sell Bert Slagle a bottle of whisky there that morning? A. No, I did not see him hand him any whisky.
“Q. Do you know whether or not Slagle had any whis-ky before he went there? A. Only what he stated.
“Q. What did he say? (The state objects. The court sustained. Exception.)
“Q. Who did you call when you used the telephone? A. I tried to get a fellow.
“Q. Who was it? A. The one that answered the telephone I thought was Buck Shackley.”

Redirect examination:

“Q. The fellow that talked with you said that he would send you down some whisky? (The defendant objects as hearsay.)
“The Court: Overruled.
“A. Yes, sir.”

Recross-examination:

“Q. Was that the only time you ever drank whisky with Slagle up there? (The state objects.)
“The Court: Sustained. Exception.”

At the close of the state’s case the defendant moved the court for a directed verdict in the form of a demurrer to the evidence, which motion was overruled.

The testimony of the defendant in his own behalf is as follows:

“My name is Jerry Grim. My age is 25 years. I have lived in Garfield county all my life. My home is nine miles east of town on my father’s farm. I have been living in Enid for about eight months, driving a taxi cab for Paul Thompson; I never did sell Bert Slagle any whisky; I was at the Overland rooms one time and Bert Slagle was there and was drunk at the time; he had a bottle of whiskey and was passing it around and giving drinks to the men and women. Mr. McNabb was there at the time.”

Cross-examined, he was asked and answered the following question:

“Q. You have been convicted of a violation of the prohibitory liquor law, have you not? A. Well, I guess I have been convicted.”

Redirect examination:

“The conviction you spoke of was in another case in which this same man Slagle testified against you, wasn’t it? A. Yes, sir.
“Q. Were you at any other time arrested or charged with violating the laws? A. No, sir; no other time.”

It is assigned as error the rulings of the court in refusing to permit certain questions to be asked on the voir dire examination of jurors. The record shows that each juror was asked this question:

“I will ask you whether or not you sat as a juror in any cases during the present term of court in which the state relied upon the testimony of one B. E. Slagle, the prosecuting witness in this case, and, if so, whether or not you have formed any opinion as to the truthfulness of the said Slagle’s testimony, in those former cases, and if so whether or not such opinion would be likely to influence you in the trial of the present case.” (The state’s objections were sustained; exceptions reserved.)

The purpose of the examination of a juror on his voir dire is to ascertain if there are grounds for challenge for either actual or implied bias; also, to enable the defendant to exercise intelligently his peremptory challenges. This court has uniformly held that a liberal latitude should be given the defendant in the examination of the jurors on their voir dire. Temple v. State, 15 Okla. Cr. 176, 175 P. 733. We think the questions were proper and pertinent for the purpose of ascertaining the competency of the jurors, and, assuming that the answers to the questions propounded would have furnished sufficient grounds for challenge for cause, the inquiry would then be proper and legitimate for the purpose of enabling the defendant to intelligently exercise his peremptory challenges. It follows that the court erred in sustaining the objections thereto.

Other assignments are based on the rulings of the court ■in the admission and exclusion of testimony. It appears that the main fact in controversy was whether the prosecuting witness carried to the Overland rooms the whisky that he there passed around or whether he purchased it, as he states, from the defendant. In this respect there is a direct conflict between the testimony of the prosecuting witness and the defendant. In such cases it is for the jury to determine which is worthy of belief, and their determination ordinarily ought to be sustained.

It has been repeatedly decided by this court that in prosecutions under the liquor law the testimony of spotters, private detectives, or paid informers is admissible. It is also held that it is proper to allow a searching cross-examination of detectives for the purpose of showing their interest in the case before the court, and thereby affecting their credibility. De Graff v. State, 2 Okla. Cr. 519, 103 P. 538. This cross-examination was for the evident purpose of affecting the credibility of the witness. The question was proper, and under the circumstances there can be no doubt that the court erred in sustaining the state’s objections. See Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090.

For the same reason the court erred in sustaining the state’s' objection to the questions asked the witness McNabb as to whether or not Slagle had any whisky before he went to the Overland rooms, and as to whether or not that was the only time he ever drank whisky there with Slagle.

As to what the fellow said that the witness McNabb talked to over the telephone, that was hearsay testimony and should have been excluded.

It follows from what has been said that the judgment appealed from herein should be, and is hereby reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    BEN F. AYCOCK v. STATE.
    No. A-4789.
    Opinion Filed Nov. 21, 1925.
    (240 Pac. 1081.)

      W. G. Hughes, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, defendant in the trial court, was convicted on a charge of illegally transporting whisky, and his punishment was fixed at 30 days in jail and a fine of $100. Of the numerous assignments of error none are worthy of notice here except the claim that the evidence is insufficient to support the verdict.

This conviction rests entirely upon the testimony of a 'deputy sheriff, who said he saw the defendant, while standing at a filling station in Boise City in the evening after it was growing dark, throw two articles from his car into a nearby pile of boulders, from which emanated the pungent odor of whisky; that he found one quart bottle unbroken, about half full of whisky; that he delivered this unbroken bottle to the county attorney later that evening, or the next morning. The prosecuting witness testified further that the defendant and a companion who came up later were drunk and boisterous. During all the period covered by these transactions there were several other witnesses present, ■some of whom testified for the state and some for the defendant, but none of them corroborated the main features of the testimony of the prosecuting witness. None of them saw the bottles or anything else thrown from defendant’s car; none testified that the defendant was drunk or boisterous; and none of the several witnesses detected the odor of whisky about the place. It appears that the defendant’s companion, Frank Bulls, who arrived at the filling station some time after the defendant, was under the influence of liquor, and for that offense he was detained by the officers.

Neither the deputy sheriff, who claims to have seen the defendant throw something from his car, nor the sheriff, who came up a moment later, made any effort at the time to detain the defendant or to place him under arrest, but permitted him to drive on to his home in the country, several miles distant.

The county attorney, who was in office at the time of the alleged offense, testified that the whisky delivered to him by the prosecuting witness was placed in his office under lock and key; that he drank a small portion of it himself, and some months later gave the rest of it to a friend who wanted it for the use of another who needed it for rattlesnake bite. The liquor, therefore, could not be produced nor introduced in evidence. Another peculiarity shown by the record is that the defendant was not finally arraigned nor put on trial until two years after the date of the alleged offense.

■ The evidence on the part of the state and as a whole is insufficient. The judgment of the trial court is therefore reversed.

DOYLE and EDWARDS, JJ., concur.


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    LEE FINES v. STATE.
    No. A-5181.
    Opinion Filed Nov. 21, 1925.
    (240 Pac. 1079.)

      John R. Guyer and T. S. E. Brown, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant below, was, by information filed in the district court of Oklahoma county, charged with having obtained, on July 3, 1923, certain money from I. H. Parsons fraudulently by means of false pretenses concerning lots sold by the defendant to Parsons in Kirkwood addition to Oklahoma City. At the conclusion of the trial on that charge, on October 30, 1923, the jury returned a verdict of not guilty. The grand jury was then in session, and the trial court ordered the defendant held for further investigation. Upon the same day the grand jury found and returned an indictment against the defendant, charging him with having procured the signature of I. H. Parsons to a check on July 3,1923, by means of false pretenses, said check being given in payment of the purchase price of the same lots in Kirkwood addition. The date of the transaction, the description of the lots, the identity of the seller and purchaser, and all the circumstances were the same in both cases. At the conclusion of the trial on the indictment November 20, 1923, and in the same court, the defendant was by verdict of the jury found guilty of procuring the signature of I. H. Parsons by false pretenses. His punishment was fixed by the court at confinement in the state penitentiary for a term of one year.

At the trial last held there was no formal plea of former jeopardy, but the defendant, before any testimony was introduced, objected to the introduction of evidence on the ground of former jeopárdy, and in support of that objection introduced the record of the former trial. It is manifest that both charges against the defendant were founded on one and the same transaction, and that a plea of former jeopardy should have been sustained. The only question, then, before this court for consideration is whether the claim of former jeopardy was properly raised in the court below.

Ordinarily, former jeopardy should be pleaded in bar of further prosecution, and such plea should be interposed upon arraignment before pleading to the merits. Section 2617, Comp. Stat. 1921. The right to immunity from prosecution where one has once been placed in jeopardy for the same offense is a constitutional right. Section 21 of the Bill of Rights of our Constitution declares:

“Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

This immunity is also a statutory right. Section 2350, Comp. Stat. 1921, provides:

“No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted except as hereinafter provided for new trials.”

If upon a second trial for the same action or transaction it be claimed that the accused has been put in jeopardy by the first proceeding in the same court, and the record itself discloses all the facts, such facts need not be pleaded anew; and under circumstances like these the court will take cognizance of such facts from the record without a formal plea of former jeopardy. Jackson v. State, 11 Okla. Cr. 524, 148 P. 1058. The right to immunity from a second prosecution for the same offense is an important, substantial right, which should not be hedged about by artificial restrictions. And while to disregard this constitu- , tional guaranty might be in keeping with right and justice in this particular case, yet if this constitutional provision could be set at naught in this case, it could be in other cases, and such construction would inevitably tend toward tyranny and oppression.

The purpose of a plea is merely to tender an issue upon some fact not already'in a case, in order that evidence may be taken to establish or disprove such fact, as the case may warrant; but if the facts are already in the case such a plea is unnecessary. Here the court had judicial notice of the former trial, which was a part of the record of the court, and the records of such former trial were before him, directing the court’s attention to the fact that the defendant had once been acquitted of the. same offense. True, the former trial was had before another district judge, but in the same court. These deductions are supported by the Jackson case, supra, and cases therein cited. State v. White, 71 Kan. 356, 80 P. 589, 6 Ann. Cas. 132; Robinson v. State, 21 Tex. App. 160, 17 S. W. 632.

The judgment of the trial court is reversed, with instructions to dismiss, the action.

DOYLE and EDWARDS, JJ., concur.