text:
    A. L. COPPAGE v. STATE.
    No. A-10346.
    Oct. 20, 1943.
    (142 P. 2d 371.)
    L. A. Justus and E. J. Lucas, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Dixie Gilmer, Cot. Atty., of Tulsa,, and Horace Ballaine, Co. Atty., of Pawnee, for defendant in error.
   BAREFOOT, J.

Defendant, A. L. Coppage, was charged in the district court of Tulsa county,, Olda., with the crime of sodomy. His case was transferred on change of venue to- Pawnee county, where he was tried, convicted, and sentenced to> serve a term of ten years in the State Penitentiary at McAlester. From this judgment and sentence he has appealed.

Defendant has presented and argued in his brief eight-assignments of error. These assignments will be considered under three heads, as several of them are so similar that they may be considered together.

“First: The verdict of the jury was contrary to the evidence; founded npon the uncorroborated, impeached, contradictory, vague, improbable, uncertain and indefinite testimony of Hartsill Brown, the prosecuting witness; and said evidence was insufficient as a matter of law to sustain a verdict of guilty.
“Second: (a) The trial court erred in admitting incompetent, irrelevant and prejudicial evidence upon the part of the state, by reason of which error the defendant was deprived of his constitutional right to a fair and impartial trial.
“(b) Error of the trial court in permitting highly improper and prejudicial conduct upon the part of the county attorney which conduct prejudiced the rights of defendant and prevented defendant from receiving the fair and impartial trial as provided by the laws and Constitution of this state.
“Third: The verdict of the jury was founded upon passion and prejudice.”

This same defendant, prior to his trial in this: case, was tried and convicted in the district court of Tulsa county on a charge of rape. He appealed to this court, and the case, was reversed and remanded. Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 797. Because of the connection of the two cases, and the reference to this case in that opinion, it is here cited.

The state did not file a brief in this case.

The charge in the instant case was presented by an information filed in the district court of Tulsa county on November 7,1941, the charging part of which is as follows: “* * * on this the 7 day of November, A. D. 1941, and gives the Court to understand and be informed that A. L. Ooppage on the first day of April, 1941, in Tulsa County, State of Oklahoma, and within the jurisdiction of this Court, did unlawfully, wilfully, and feloniously commit the detestible and abominable crime against nature, to-wit: sodomy, committed in way and manner as follows, that is to say, by then and there having unnatural and carnal copulation in the mouth with one Hartsill Brown, contrary to the form of the statutes * *

The motion for change of venue was based solely upon the publicity given by the Tulsa, newspapers against this ■defendant in this and the case above cited, and was granted upon that ground alone.

The first assignment of error makes it necessary to review the evidence. Defendant was charged with the crime of sodomy upon one Hartsill Brown, age 17 years, on the night of April 1, 1941, about 11:15 p. m. The prosecuting witness testified that he lived at 419 South Quebec, in the eastern part of the city of Tulsa. That on April 1, 1941, he was attending school, and working-after school at Sharp’s Hatchery in downtown Tulsa. That .he left the hatchery about 10 or 10:15 on the night in question, walked seven blocks and caught the Eleventh street bus, and got off the bus at Eleventh and Quebec. That he started walking north on Quebec about 11 or 11:15. Some one unknown to him came up. from the rear when he was. within four blocks of home and stopped his: car and asked him if he wanted to ride. “So I said ‘Sure’ and 1 got in.” He spoke to the party and said something-about the major league ball teams, but was not answered. The party who had picked him up then stopped his car on the public street, placed a, gun in the left side of witness, and upon threats that he Avould kill him, committed an act upon tlie witness with hisi mouth, the particulars of which it is unnecessary to state. While committing this act, defendant made the witness put his head and hands out of the window of the car. He then informed witness that he knew who he was, and where he lived, and drove within less than a block of his home, and let the prosecuting witness out of the car. The witness, when he arrived home, told his stepmother and stepbrother what had happened. His father reached home about 30 or 40 minutes later, and he and his father went to the police station and made a report of the attack to the police officers. Witness gave a description of the party who had picked him up to the police officers.

So far as the record reveals, nothing further transpired with reference to this case until September 25, 1941, when two police officers went to the school of the prosecuting witness after him.

“Q. What did they say to you, Hartsill, when they came after you at the school? A. Mr. DeMoss said to me, 'We want you to come down to the police station; we think we have the hoodlum that picked you up last April, we want you to identify him.’ ”

He went to the police station and positively identified the defendant as the party who had picked him up. on the night of April 1, 1941. There were four or five parties lined up, and he picked the defendant from among them. At the time of the trial he positively identified the defendant as the party who had picked him up, and had committed the act as charged.

The direct and cross-examination of the prosecuting witness was very thorough. We will not incumber the record with quoting from it at length. He testified that he was positive that the act occurred on the night of April 1, 1941, and this is corroborated by the records of the police station, which disclosed that he reported the occurrence on that night. He stated that in his opinion it 'did not rain that night, and it was not raining at the time he entered the car. It was very dark. The car in which the party who picked him up was: riding was a dark Chevrolet car, with yellow or cream colored wheels; that the upholstering of the car was in bad shape. At the trial he would not say positively whether there were seat covers on the car or not, but at the preliminary examination he testified positively that there were no seat covers on the front seat. At the trial he testified that the front seat Avas divided and had two seats. At the preliminary he testified that it was one straight seat. He was unable to testify whether there was a radio, heater, radiator cap, or two large horns on the front of the car. He did not secure the tag number of the car and was therefore unable to give it At the time of the preliminary, on October 20, 1941, he had not examined the car, but on the afternoon of that day and after the preliminary examination, he examined the ear at the suggestion of the police matron, and positively identified it as the car which he entered on the night of April 1, 1941. One of the means by which he identified the car Avas. the color of the wheels. He testified:

“Q. Will you tell us, please sir, the color of the wheels of the 1933 Chevrolet? A. They Avere yellowish, cream color spoke Avheels. Q. Will you tell us the color of the Avheels of the 1933 Chevrolet that you saw in October, 1941? A. It was the same color. * * * Q. Was there anything unusual about a Chevrolet those color wheels, by which you could identify it and distingmish it from some other 1933 Chevrolet? A. No, it just had yellow wheels is all.”

The state then introduced a number of witnesses who testified to numerous minor details, none of which connected the defendant with the actual commission of this crime. It was proven that defendant owned a 1933 Chevrolet automobile, and it was the one identified by defendant on October 20, 1941. Defendant had sold this automobile to M. A. Whitley of the Parrott Motor Company in the latter part of June, 1941, and purchased from that firm a Plymouth car, which he was driving at the time he was arrested on September 25, 1941. Mr. Whitley testified that he drove the Chevrolet car prior to buying it, and that it had seat covers on it. They were in good condition, and fully covered the upholstery. The car was sold by the Parrott Motor Company to> Theodore Mc-Cracken, who testified that he sold the car to Clarence Hall. Mr. Hall testified that he purchased the car on July 2, 1941, and that he was the owner of the car on October 20, 1941, at the time it was examined by the prosecuting witness.

The witness Theodore McCracken was subpoenaed by the state as a witness, and was afterwards used by the defendant, and testified as follows:

“Q. Now, at the time you bought this car, do> you recall the color of the wheels? A. I believe they were red. I am pretty sure they were. Q. Now, after you purchased this car, between the month of June and the 20th of October, Mr. McCracken, did you have occasion to paint the car, and change the color of it? A. Yes, sir. Q. Will you tell the jury, please sir, just what you did to the car after you purchased it? A. I painted the body blue, and the wheels cream. That is all that I did to the car.”

Several police officers testified for the state. Their testimony was with reference to the arrest of defendant, on September 25, 1941. He was taking his two little girls to school in the Plymouth car, and when they drove up-, he was arrested. There was nothing in his arrest that gave any information that would connect defendant with the crime with which he was charged. The officers testified to the finding of a small toy pistol in the car. There was no- evidence to connect this toy pistol with the one used by the party against the witness TTartsill Brown o-n the night of April 1, 1941. Defendant stated that he did not know of the toy pistol being in the car, but had seen one around the home, and that it had probably been placed there by the children while playing in the car. Co-ppage v. State, supra,

Beulah Johnson, a police matron, testified to taking the witness, Hartsill Brown, to examine the Chevrolet car on October 20, 1941, after the preliminary examination.

Two officers testified that after defendant was arrested, in their presence Police Officer Phillips, who was a friend of defendant, questioned him and asked him if he were guilty, and defendant told him he was no-t guilty. That Officer Phillips then told him he had known of people getting off lighter if they were guilty and pleaded guilty, and defendant then asked him what he would get if he did plead guilty. It occurs to us that this could in no way be construed as a confession or statement, of guilt by the defendant. We stated in the case of Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 893, supra:

“The evidence of the police officers as to their conversation with defendant cannot be considered as a confession, or even as a statement against interest. All of the officers who testified in reference thereto- clearly stated that defendant at no time admitted that he committed this crime, but that he denied committing- the same. It is readily observed from a reading of the record that the police officers were attempting to- have different parties identify defendant, and thus- connect him with a number of crimes. It was not unusual that defendant under these circumstances should have made inquiry of the officers, as he said he did, as to what punishment he would receive if he entered a plea of guilty. He could have very easily been considering the publicity, humilia,tion and disgrace that would be brought upon his family by a public trial of the charges, and for this reason made the inquiry as to the punishment he would receive if he entered a plea of guilty. We are not saying that this evidence may not have been proper for the consideration of the jury, but the explanation which he gave was very reasonable in view of the facts and circumstances of this case.”

The conversation between the officers and the defendant in this case was practically the same as in that one.

This was all of the evidence of the state..

It was the contention of the defendant that he was not guilty of the crime charged; that he had been falsely accused, and his. defense was that of an alibi. It was his contention that he and his wife entertained a card club to which they belonged, and which had been organized for a number of years, in their home on the night of April 1, 1941. That this party began about 7:30 and continued to from 12 to. 12:30. That he was present at all times and did not at any time leave his home on that night, after the guests arrived. The evidence revealed that there were present at. this party Mr. and Mrs. Bradford, Mr. and Mrs. Barnes, Mr. and Mrs. Layman, Mr. and Mrs. Jones, Mr. and Mrs. Lairmore, and Mr. and Mrs. Coppage, all highly respected citizens of Tulsa. Testifying for defendant were Mr. and Mrs. Bradford, Ben Layman (his wife was in California at the time of the trial and did not testify) ; Mrs. Pauline Lairmore (her husband had been subpoenaed as a witness but was excused for the reason that he was a bonded employee for the Tulsa Armed Express, and no one could take his place while absent to testify); L. V. Jones (his ivife did not testify on account of illness); Mrs. Coppage, the wife of defendant, and his two little girls, ages 11 and 15 years, respectively; and it was agreed that Mr. and Mrs. Barnes had moved to San Antonio, Tex., and for this reason did not testify. All of these witnesses testified to being present at the party, and that defendant was there at all times, and did not leave during its progress. Some of them did not recall the exact date, others did by reason of certain circumstances, and those who could not remember the date, remembered the circumstances. All recalled that the little girls of defendant had shown them clothes which had been purchased for them for Easter. Mr. and Mrs. Bradford recalled the date by reason of having purchased and planted certain seeds at their farm the day before the party. They exhibited the receipted bills for the seeds, which showed the date on which they were purchased. They also recalled that it was raining at the time they went to the party, and that the defendant had backed his car across the street to their house and had taken them across to his home while it was raining. Also that the little girls had borrowed chairs for the party.

Mrs. Coppage kept a diary or calendar which had been given her by her church and it was introduced in evidence, and the party had been noted as having been given on April 1, 1941. The item therein was made in regular order, and there was a notation entered on April 2nd, showing that the party was given on the night of April 1,1941. She also testified to the purchase of certain articles on the date of April 1st and receipted bills were introduced showing the date of purchase. She testified to her normal physical condition at the time her husband was charged.

It wag also testified by several others that it being April Fools Day, salt had been placed in the tea of one of the guests.

The two little girls of the defendant, ages 11 and 15 years, testified to having gone to school that day, and of borrowing chairs from one of the neighbors for the party. They further identified the date by reason of not going to an April Fool party, but staying at home to assist their mother with her party; that they remained up until the party ended, and their father was there all of the time.

In the first part of this opinion we stated that the defendant had, prior to the trial of this case, been tried in the district court of Tulsa county for the crime of rape, and an appeal had been taken to this court, and that the case had been reversed and remanded. Coppage v. State, supra. In that case defendant was charged with rape of a negro womau in Tulsa county on April 28, 1941, just 27 days after the crime charged in the instant case. Defendant was arrested September 25, 1941, placed in jail and was identified by both prosecuting witnesses.

During the cross-examination of Mrs. Coppage, wife of the defendant, the following proceedings were had before the court:

“Mr. Gilmer: We are going to ask her next if it is not a fact her husband was tried in the district court of Tulsa county for a rape of a colored woman by the name of Alma Floyd and if she does not know that of her own personal knowledge. The Court: I think probably you have probably laid the proper predicate for it, and it waS| on direct it was brought out. I don’t see how you can get around it. Mr. Gilmer: She was present at the preliminary too. The Court: She stated on direct examina,tion she had never had it called to her attention. Mr. Gilmer: Yes, sir. The Court: So I don’t see how you can get around it. Mr. Justus: We want to object. The Court: I will allow you to make a complete record. Mr. Kennon: If the court please, may I have permission to let Mr. Gilmer take over the examination? He is more familiar with it. The Court: Yes, I have no objection.”

Thereupon the proceedings were resumed in the hearing of the jury:

“(Mr. Gilmer) Q. Mrs. Coppage, is it not a fact that you were in the district court of Tulsa county sometime about the first week of December this year, at which time your husband was tried and convicted for the rape of a negro woman by the name of Alma Floyd? Did you know about that? Mr. Justus: To which question the defendant A. L. Coppage objects as incompetent, irrelevant, immaterial, highly prejudicial and by reason of the statement the defendant, A. L. Coppage, now moves for a mistrial of this case. Mr. Lucas: Improper cross-examination. The Court: Gentlemen of the jury, under the admonition formerly given you, you will be excluded from the courtroom for a. few minutes. You will remain within call and please remain outside of the courtroom. Reporter’s note: Thereupon the jury retired from the courtroom, and at the conclusion of discussion between court and counsel were recalled to the courtroom and the following proceedings had in the presence and hearing of the jury and the defendant: The Court: Gentlemen of the jury, the court sustains the objection to- the last question asked this witness, and you are instructed at this time that you shall give no weight to the question of the county attorney in that respect, and totally disregard the last question asked this witness. Proceed. Mr. Justus: Let the record show that the defendant excepts to the ruling of the court and the defendant desires now to again renew his motion for a mistrial of this case and asks the court- to discharge the jury at this time by reason of the question asked by the county attorney. The Court: The motion of the defendant for mistrial is overruled and denied. Mr. Justus: Exception. The Court: Very well, let us proceed.”

Tt will he noted that when this question was asked the jury was present. After the question was asked, the jury was withdrawn, and after argument by counsel, the court sustained an objection to the same and instructed the, jury not to consider it.

Tt is, strenuously contended by the defendant that the asking of this question in the presence of the jury constituted prejudicial error, and that the court erred in refusing to grant a mistrial at this time. With this contention, after a, review of the entire record, we agree. We have carefully examined the record as to the direct examination of the witness, and there was nothing asked! the witness on direct examination which would justify the asking of the question above quoted, in the presence of the jury. We cannot conceive of any theory or reason for the asking of this question of the wife of the defendant, except to prejudice the jury against the defendant. There was no relation between the two crimes. If they were committed, they were different crimes, and at different times. It is a well-defined general rule that one should only be placed on trial for the crime with which he is charged in the information. We recognize, and have recognized, that there are well-defined exceptions to this rule. In the case of Williams v. State, 68 Okla. Cr. 348, 98 P. 2d 937, we have discussed, reviewed and cited the authorities covering this proposition, and it is unnecessary to quote therefrom.

The facts in the instant case do not bring it within the 'exceptions to the general rule. As above stated, we see no reason for the asking of this question, except that the county attorney evidently came to the conclusion that the defendant was not going to take the witness stand in this case, and that by asking his wife this question he could get before the jury the fact that the defendant had been previously convicted in Tulsa county of the crime of rape upon a negro woman. This, in our opinion, was an unfair advantage, and resulted in prejudice to the rights of the defendant, and caused his conviction. From an examination of the entire record in this case, one can but come to the conclusion that it was the information given by this question to the jury which caused them to return a verdict of guilty against this defendant, and that for such error this case should be reversed. Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Wisdom v. State, 18 Okla. Cr. 118, 193 P. 1003; Millett v. State, 36 Okla. Cr. 309, 253 P. 1039; Chatham v. State, 65 Okla. Cr. 240, 84 P. 2d 804; Mercer v. United States, 3 Cir., 14 F. 2d 281; 16 C.J. § 1132, p. 586; 22 C.J.S., Criminal Law, § 682.

The evidence relied upon for a conviction depended upon the identification of the defendant by the prosecuting witness. While his identification was positive, many circumstances surrounding this identification are uncertain. He was evidently mistaken in a number of material facts. His identity was based principally upon the identification of the automobile, and from his examination of it on October 20, 1941. This was a period of six months from the time he had entered the automobile on the night of April 1st. The car had been repainted, and the wheels had been painted a different color, yet his testimony was that the car was just as it was on April 1, 1941. There are other serious conflicts between his testimony at the preliminary examination and his testimony at the time of the trial; and when we take into consideration that his testimony is so directly in conflict with the testimony of the witnesses who attended the party at the home of this defendant on the night of April 1, 1941, it certainly gives evidence of an uncertainty that this defendant was the person who committed this crime. These witnesses were highly respected citizens who would have no reason to falsify their testimony. The records presented confirmed their evidence in every respect. They clearly established the fact that the party was given on the night of April 1, 1941, the same date as charged in the information. The incident of the salt being placed in the tea of one of the guests as an April fool prank was recalled by the witnesses present. The date in the diary, or calendar kept by Mrs. Coppage, which shows that it had not been changed or inserted therein, but had been entered in its natural order many months prior to the arrest and charge against the defendant, and many other circumstances as revealed by the record, are not only inconsistent with the identification of defendant by tbe prosecuting witness, but his own evidence is so uncertain and is contradictory in so> many instances with positive facts, that we can not read this record as a whole and come to any conclusion but that the verdict returned by the jury in the case was the result of passion and prejudice. The fact that the jury was given the information that the defendant had been previously convicted in Tulsa county, where he was charged with the rape of a negro woman, was undoubtedly the cause of the passion and prejudice against him, and caused his conviction in this case.

In the case of Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530, 539, a case in which the defendant was positively identified, we said:

“In view of the contradictory and unsatisfactory evidence in this case, and the fact that practically every witness used by the state tended to corroborate the statement made 'by the defendant, with the exception of the positive identification of the defendant by the Monteilh family, and the uncertainty of this testimony being- correct as to the defendant being the party whom they saw, we cannot do otherwise than reverse and remand thiá case.
“It is true that the prosecutrix was assaulted and the perpetrator of this crime should not go unpunished, but the evidence as to the defendant being the party who did it is not only conflicting and unsatisfactory, but is highly improbable. This testimony in conjunction with the physical facts, and the corroboration of the defendant by the state’s own witnesses, leads to but one conclusion; that there was a case of mistaken identity.”

See also Williams v. State, 68 Okla. Cr. 348, 98 P. 2d 937.

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

It appearing from the record that this defendant has been confined in the State Penitentiary a,t McAlester since his conviction by reason of being unable to make bond, it is hereby ordered and directed that the warden of the penitentiary deliver said defendant to the sheriff of Pawnee county, Okla., subject to the further order of the district court of that county.

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


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    LESTER SPARKS v. STATE.
    No. A-10268.
    Oct. 20, 1943.
    (142 P. 2d 377.)

      B. O. Ingle, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Lester Sparks, was charged in the connty court of Sequoyah county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

It is contended that the evidence is insufficient to sustain the conviction. Certain officers of Sequoyah county, armed with a search warrant, made a search of defendant’s premises. In the kitchen of his residence they found one pint bottle and one half pint bottle of tax-paid whisky. The seals on the bottles were unbroken. They also found a federal retail liquor dealer’s license for the current year and one for the preceding year in defendant’s possession. At the time of the search and arrest of defendant, defendant stated to' the officers, “You boys go back to- town and tell the people you’ve caught old Lester, the best friend you ever had, but he has plenty more but the price of liquor has, gone up.” He further stated to one of the officers; “I got plenty of whisky and Happy, you’re an old bootlegger and I have it hid where you can’t find it.” Two days later the defendant stopped the undersheriff on the streets of the town of Sallisaw and. told him, “You boys won’t mate me sore by shaking- me down. Go ahead and search the place when you get ready. I am g'oing to sell whisky but I’ll have it hidden where yo-u can’t find it.”

This court is very hesitant about affirming a conviction for unlaAvful possession of intoxicating liquor where the amount found in possession of the offender is less than one quart and were it not for all the other attendant circumstances, as hereinabove outlined, we would not hesitate to reverse this case because of the insufficient quantity seized by the officers on the occasion of their raid.

An intent to sell is the gist of the offense of unlawful ¡possession of intoxicating liquor. The possession in excess of one quart is prima facie evidence of an intent to sell under our statute, 37 O. S.. 1941 § 82, hut that does not mean that a conviction may not be had where there is possession of less than one quart.

We also have a statute which provides that the payment by the defendant of the special liquor dealer’s; tax to the United States Government, which may be shown by the possession of a federal retail liquor dealer’s license, constitutes prima facie evidence of an intent to sell, where the accused is found in possession of intoxicating liquors. 37 O. S. 1941 § 81. We not only find the defendant in possession of a federal retail liquor dealer’s license, but he bragged to the officers that he was a liquor offender and that he had other liquor which he had hidden where they were unable to find it. In view of these circumstances, we are impelled to Hie conclusion that the evidence is sufficient to sustain the conviction.

In the petition in error filed by defendant, he alleges as one of his grounds for reversal the fact that the court erred in overruling bis motion to suppress tlie evidence. The record does not disclose any hearing- in connection with a motion to suppress evidence nor any ruling of the court thereon. Neither the search warrant nor affidavit was introduced in evidence, and there is nothing in the record from which this court may conclude that the evidence of the state should have been suppressed because of an unlawful search.

The judgment of the county co-urt of Sequoyah county is affirmed.

BAREFOOT, J., concurs. DOYLE, X, absent.


text:
    LESTER SPARKS v. STATE.
    No. A-10269.
    Oct. 20, 1943.
    (142 P. 2d 379.)

      R. O. Ingle, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty Gen., for defendant in error.
   JONES, P. J.

The defendant, Lester Sparks,, was charged in the county court of Sequoyah county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to- serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

The officers of Sequoyah county, on October 18, 1941, while armed with a search warrant, made a search of defendant’s premises' and found seven pint bottles and six half pint bottles of tax-paid whisky.

It is contended that the court erred in overruling the motion to suppress evidence presented by defendant. There is no dispute but what the description in the search warrant of defendant’s premises is accurate. It is the contention of the defendant that the house searched by the officers was occupied by two families and, therefore, in contemplation of the law, it constituted two separate and distinct places. In support of his motion the defendant testified that he had a married son whoi occupied two- rooms of his house with a small daughter. It is undisputed that there are no partitions or any other appurtenances showing a division of control of the house.

The testimony of the officers showed that they were acquainted Avith defendant’s household. That defendant was the head of the family and that all of them used all of the rooms. That the defendant’s son slept in the southeast bedroom. The search warrant was never introduced in evidence, so this court is unable to state whether the names of either or both of the occupants were inserted in the search warrant.

This court has many times held that a warrant for search of a private residence, occupied by several people, issued upon an affidavit which failed to name the owner or any of the occupants of the residence, was void, the search thereunder was unreasonable, and the liquor obtained in the search was inadmissible in a prosecution for unlawful possession of intoxicating liquor. Mason v. State, 63 Okla. Cr. 153, 73 P. 2d 468; Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; Clanton v. State, 59 Okla. Cr. 365, 60 P. 2d 415.

These decisions were all directed at the practice of issuing a blanket search warrant covering the private place of abode of several people. No comparable situation is here presented, Under the testimony offered by defendant, the court would have been fully justified in concluding that defendant was the head of the household and that the son was merely a member of his household. When this is considered, together with the fact that the, search warrant was never introduced in evidence so that this court, by an examination, might determine whether defendant and liis son were named therein, or either of them, together with the rebuttal proof offered by the state concerning the status of defendant and the members of his family and the description of the house occupied by defendant and his: family, it is apparent that the order of the trial court overruling the motion to suppress the evidence should be sustained.

The officers found several pints of whisky and it is apparent that there are no material errors in the record, and the judgment of conviction should be affirmed.

It is SO' ordered.

BAREFOOT, J., concurs. DOYLE, J., absent.


author: BAREFOOT, J.

text:
    L. E. WILLIAMS v. STATE.
    No. A-10246.
    Oct. 27, 1943.
    (142 P. 2d 647.)
    Glen O. Morris and R. 0. Swimmer, both of Oklahoma City, for plaintiff in error.
    Randell S. Cobh, Atty. Gen., and Lewis R. Morris, Co'. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, L, E. Williams, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, ivaived a jury, Avas tried before the court, found guilty, and his punishment assessed by the court at a fine of |50, and to serve 30 days in the county jail. From this judgment and sentence he has appealed.

The only assignment of error is that the evidence is insufficient to sustain the judgment and sentence.'

The only witness of fared by the state was Jack Caldwell, a policeman of Oklahoma City. He testified that on October 4,1940, he procured a search warrant and searched the premises located at 325% East Second street, in Oklahoma City. This consisted of several rooms on the second floor, occupied by the defendant, who was present at the time of the search. As a result of the search, the officers found three pints of gin and one pint of apricot liquor. Defendant stated that was all he had. The apricot brandy was in a book-case, and the gin was in a plant over the front window. A bed was located in this room, and defendant claimed that it was his home.

Defendant operated a restaurant in which beer was sold in the lower part of the building.

The above evidence -produced a prima facie case for the state, inasmuch as the amount of liquor found exceeded one quart.

Defendant testified in his own behalf that he owned and operated the restaurant on the ground floor. He denied that whisky or intoxicating liquor was sold therein. He admitted the possession of the liquor found, but testified that the gin was for his own use, and had been prescribed by his doctor for kidney trouble. He did not name the doctor Avlm had prescribed for him. He testified that the apricot brandy was left with him by some man whom he did not name, and that it belonged to a woman who was going to have a birthday party that night, and that he was only keeping it for her. He did not give her name. He testified that he told Officer Caldwell about this at the time of the search. On cross-examination defendant testified that he had been previously convicted of a violation of the prohibition law, 37 O. S. 1941 § 1 et seq., and that he had been convicted of a felony, but his case had been reversed by this court. The record does not reveal the final outcome of that case.

On rebuttal Officer Caldwell testified that defendant did not tell him at the time of the search that- the apricot brandy had been given him to keep for a woman who was having- a birthday party.

From the above statement, it may be readily observed that the question of intent was a question of fact presented to the court. We do- not find that the evidence was insufficient to- sustain the judgment and sentence. Under the law, the finding of the trial court was the same as if the issue had been passed upon by a jury.

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

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


text:
    JAMES D. PARISH v. STATE.

      No. A-10214.
    Oct. 27, 1943.
    (142 P. 2d 642.)

      J. Q. A. Harrod, of Oklahoma City, and Roy B. David, of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and S, H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, James D. Parish, was charged by information filed in the district court of Bryan county with the crime of murder, was tried, convicted and sentenced to death and has appealed.

The defendant, at the time of the alleged homicide, was a convict in the Oklahoma State Penitentiary assigned to work in a convict camp near Atoka, Okla. The deceased, W. R. Benningfield, was a carpenter employed by the School Land Department and engaged in supervising the construction of a house by the defendant and other convicts on one of the state farms. About 9 a. m. on August 11, 1941, while working on the house, the defendant complained to the deceased of the stomach-ache. The defendant complained to- such an extent that the deceased decided to take him to a doctor in Atoka for treatment. That was the last time the deceased was seen alive. His body was found in a ditch along the road near Kenefic, Okla. An examination disclosed that he had been severely beaten on the head by some blunt instrument causing his death.

The defendant was arrested the next night and placed in the Shawnee jail. Later he was transferred to the State Penitentiary, at which place he gave a statement in writing to the officers of Bryan county concerning the alleged homicide. His statement was as follows:

“Be it remembered:
“That James D. Parish made the following statement on August 13th, 1941, in the office of the Record Clerk, Oklahoma State Penitentiary, McAlester, Oklahoma,, in the presence of W. O. Taylor, Sheriff of Bryan County, Oklahoma, Bill Steger, Alan McPheron, and Paul Fields,.
“Q. James D. Parish, do you care to make a voluntary statement about, your activities on Sunday, Monday, and Tuesday, the said days being August 10, 11, 12th, 1941, respectively, knowing that yon do not have to make a statement unless yon want to, and that we want said statement to be voluntary, and that we are not offering! yon any promise of reward for making said statement, and that anything you say in the statement can be used both for and against you in a case of a trial, and it is your constitutional right to refuse to make a statement, and that you can have an attorney present before making the statement? A. I will make a voluntary statement.
“Q. Tell all about your action of August 10, 11, 12, 1941. A. About 7:30 A. M., Monday, August 11th, 1941, Mr. Benningfield, myself, and three other prisoners left the camp 1% miles north of Atoka, Oklahoma, we drove to Kenefic, Oklahoma, and then drove to the job, which is 1% miles north of Kenefic, Oklahoma. We got to the job about. 8 :30 or 9:00 that morning. About 9 or 9 :30 that morning I started having cramps in my belly. Mr. Ben-ningfield decided to take me to a Doctor in Atoka, Oklahoma, so I could get treated for the cramps.
“We got in Benningfield’s car, which was a tudor Nash, 1941 model, I got in the back seat and laid down, Benningfield was driving. We drove to Kenefic, and turned east toward Caddo. After we had gone two miles east of Keneñc, we got in a rukus because he was talking about my family.
'“I hit him. with my fist one time. He hit at me first with his fist and missed me. Then he started to his pocket like he was going to get a knife, then I picked up a hammer’ and hit him about four or five times in the head.
“The car was stopped when this rukus took place. I told him while we were driving to stop the car so I could take a crap. I went out in a com field and took a crap. Then I came back to get in the car, I was getting in the front seat to' ride there with him, when he hit at me. I dodged the blow, and then the rukus took place.
“After I knocked him out I put him in the back seat, he raised completely up and then laid back down in the back seat — then I drove: the car off. I turned the car around right there and headed the car west. I drove west seven or eight miles and then threw .him out of the car. I threw him in a ditch on the right side of the road. I put him about (Signed: James D. Parish) fifteen feet from the road, in a small hole with Johnson grass and weeds around it. He was still alive when I put him on his side. When I picked him up, I picked up a blanket that was in the back seat, and I left this blanket under him when I laid him down.
“I turned the car around after I crossed the bridge, then head south two miles, and then turned west and went until I got to the highway. I went through some little towns and then got to Ada, Oklahoma. Then I drove to Wewoka. While I was in Wewoka, I tried to back the car up, I got the shift hung in reverse and couldn’t get it out of reverse. I then parked the car and walked off. I walked away from the road and hit a timber strip. I would walk a little then sit down and rest and then start walking again. It was between 1 and 2 P. M., when I left the car. I milled around the rest of the afternoon and that night in the woods. I would walk some then rest and sleep.
“About noon the following day I went to a farmer’s house and told him the circulation in my car was stopped up, and that I needed some lye to un-stop the radiator. The farmer gave me a full can of lye and I gave him 15<* for it. I walked about, one mile, then I stopped at a little branch, I mixed some lye and water in a Prince Albert tobacco can and drank it. It made me sick and I laid around out there the balance of that day. About 8 or 9 that night I went over to the highway and caught a ride with some boys. The boys took me to a hospital in iShawnee. I asked these boys to take me to a hospital, and they took me to one.
“Mr. Paul Fields and Mr. Mann talked to me in Shawnee, Oklahoma, on August 12th, 1941, and I told them about killing Mr. Benningfield, and told them where his body was. This morning, August 13th, 1941, at about 3:30 A. M., I showed Mr. Paul Fields and Mr. Mann and some other officers where his body was. I showed them where the rukus came up.
“Q. Have you read this statement of two' pages, and is it the statement you made, and is it the truth? A. I have read it, and it is what I said, and it is true.
“Signed August 13th, 1941.
“(Signed) James D. Parish
“James I). Parish.
“Witnesses:
“(Signed) W. O. Taylor
“Paul Field
“Alan B. McPheron.”

The deceased was a man about 60 years of age who weighed less than 140 pounds. The defendant, at the time of the homicide, was 37 years of age and weighed 217 pounds.

Counsel for defendant presented a plea of self-defense and temporary insanity, although the testimony of the defendant concerning the actual homicide did not, in any way, show a temporary insanity, but his defense, according to his own testimony, was solely that of self-defense.

The Avife and some relatives and Mends of defendant testified that a few years before the date of the homicide, the defendant had been riding in an automobile which collided Avitli a train causing the defendant to sustain severe injuries. That subsequent to the collision the defendant had hallucinations or mental lapses Avhen he conjured up imaginations that he was being chased or Avronged by certain people.

The circumstances surrounding the homicide as testified by the defendant related a history of defendant’s association with the deceased. It was claimed by the defendant in his testimony that the deceased had made derogatory remarks about his wife and children which humiliated and enraged him. That these remarks were first made about a week before the time of the alleged killing. That on the date of the homicide, the deceased, together with the defendant and two other prisoners, was working near Kenefic building a house under the supervision of the deceased. That early that morning the defendant complained of the stomach cramps and was advised by the deceased to’ rest awhile and if he didn’t feel better that he would take him to Atoka to a doctor. That he rested about 30 or 40 minutes and felt worse and told the deceased how he was feeling. That the deceased then asked him to get in his car and they started on the road to Atoka. That on the road he asked the defendant to stop so that he might get out for a bowel movement. That when he came back to the car the defendant started an argument again about his wife and he told the defendant to drive him before the superintendent and let him take him back to the walls, and -the deceased said he would not do it. That he started to get into the car and the deceased said “Damn you,” and hit at him and then said “Get in this car.” That deceased then hit him over' the eye and started to put his hand in the glove compartment and defendant shoved him back and then hit him with a hammer several blows. That he then put him in the back seat and started to a hospital and he noticed that the deceased had died so he stopped and laid him in a bar ditch. That after this occurred defendant got back in the automobile and his mind went blank and he, according to his testimony, did not recall anything that he did after that time until he ivas taken back to the penitentiary.

It is. first contended that the court erred in overruling the defendant’s motion for a new trial because of the disqualification of one R. W. Reeves to sit as a juror in said case, which disqualification was unknown to the defendant until after the verdict was rendered and the jury discharged.

' In connection with this assignment of error, the defendant alleges that the juror Reeves was deaf to- such an extent that he was disqualified to act as a juror.

38 O. S. 1941 § 10 provides:

“All male citizens residing in this state,, having the qualifications of electors, of sound mind and discretion, of good moral character, not justices of the Supreme Court, or judges of the Criminal Court of Appeals, District Court, Superior Court, Court of Common Pleas, or County Court, sheriffs, or deputy sheriffs, constables, jailers, licensed attorneys engaged in the practice of law, habitual drunkards, not afflicted with a bodily infirmity amounting to a disability, and who have never been convicted of any infamous crime or served a term of imprisonment in any penitentiary for the commission of a felony, are competent jurors to serve on all grand and petit juries within their counties: Provided, that persons over sixty years of age, ministers of the Gospel, and county or district officials, practicing physicians, dentists, undertakers, pharmacists, teachers in public schools, postmasters, carriers of the United -States mail, members of the National Guard, persons actually engaged or employed in the publication of a newspaper, and all members of good standing of any regular organized fire department, if they claim their exemption, shall not be compelled to serve as jurors in this State.”

Upon the hearing of defendant’s motion for a new trial, the defendant produced the juror Reeves as a witness in support of his motion and he testified concerning his alleged disability as follows:

“Q. What is your name? A. R. W. Reeves. Q. Do you know what seat — which one of the chairs in the jury box you occupied in the trial of this case? A. I think it Avas this chair here. (Indicating) Q. Can. you hear good? A. Well. I could from there. Q. As a matter of fact, haven’t you told different people that you were hard of hearing? A. I do not have normal hearing, 'but I can hear everything under ordinary circumstances. I can hear pretty good. Q. Hasn’t different people had difficulty in having a conversation with you and you would have them repeat it again? A. Well, if there are interruptions and noises, yes. Q. Then you admit your hearing is not good? A. It is not normal. Q. When is it normal and when is it not normal? A. Well, if a person is too far away I don’t hear SO' well, and some people’s voices don’t carry as Avell as others, and if there is a commotion and other noises I can’t hear as well. Q. You think then that during all of the time of this trial, that you could hear every word? A. I think I heard every word of it. Q. Could you hear the defendant plainly when he was talking? A. Yes, sir.”

All of the argument of defendant in connection with this assignment of error is based on the assumption that the proof of the defendant definitely established that the juror Avas afflicted with a bodily infirmity amounting to a disability. It is admitted that the defendant did not question the juror Reeves on his voir dire examination as to his qualifications, but it is insisted that even though in an ordinary case it might be held that the defendant had Avaived any question as to the alleged disqualification of a juror by his failure to seasonably object to his competency, since this is a capital case this court will consider the question and if it is found that the juror is in fact disqualified award the defendant a new trial.

In the case of Cooper v. State, 27 Okla. Cr. 278, 226 P. 1066, it is held:

“It is the duty of the defendant to question the jurors on their voir dire as to their qualifications; and if he fails to do so, he waives any objections on that point, even though the disqualification is unknown to him until after the rendition of the verdict.
“The granting of a new trial in snch a case is a matter of discretion.”

In the body of the opinion it is stated:

“A defendant will not be permitted to speculate on the result of a verdict to be rendered by a jury of which some member may be disqualified, and later challenge the verdict if, perchance, it should not be to his liking. The defendant must exercise diligence to ascertain the qualifications of jurors at the time they are examined for that purpose. Queenan v. Territory of Oklahoma, 11 Okla. 261, 71 P. 218, 61 L.R.A. 324; Id., 190 U.S. 548, 23 S.Ct. 762, 47 L.Ed. 1175; Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119; Papernow v. Standard Oil Co., D.C., 228 F. [399], 400.” See, also, in this connection Brown v. State, 14 Okla. Cr. 609, 174 P. 1102; David v. State, 14 Okla. Cr. 535, 179 P. 48; Tinney v. State, 19 Okla. Cr. 126, 201 P. 819; Peters v. White, 169 Okla. 640, 38 P. 2d 523.

The defendant is correct in his contention that this court, in a capital case, will review the entire record and consider all matters presented which are supported by the record, whether such assignments of error are properly preserved or not, in order to determine whether the extreme punishment assessed the defendant is justified under the record or whether "the verdict was procured by reason of some irregularity or error in the proceedings which prevented the defendant from having a fair and impartial trial.

After a thorough consideration of this assignment of error, in view of the testimony of the juror and in the absence of any contradictory evidence, it is apparent be bear’d all of tbe testimony. Tbe witness admitted a slight deafness but he was very definite in bis statement that be heard all of the examination of the witnesses, including' the testimony of the defendant. In view of this state of tbe record it is not necessary for ns to determine whether the alleged disqualification of the juror, if true, was sufficient to invalidate the verdict.

The second and only other contention presented by counsel for defendant is that the punishment is excessive and should be modified.

In considering' this assignment of error it should be borne in mind that the statute, section 3204, O. S. 1931, 22 O. S. 1941 § 1066, vesting in this court authority to reverse, affirm or modify the judgment on appeal, is not unlimited. It must be the exercise of a judicial power, as distinguished from the executive power of commutation, reprieve, pardon or parole. This court may only modify a judgment as,an award of justice, while the executive power of clemency is conferred as a matter of grace.

As was stated in the case of Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114, 118:

“The power conferred on this court to modify a sentence as a judicial act makes it the duty of this court in a capital offense to examine the entire record and to carefully weigh and consider the evidence, including the evidence as to defendant’s sanity at the time of the homicide, the instructions of the court given and those refused, in order to ascertain if, in the furtherance of justice, the judgment and sentence of death should be reduced to life imprisonment.”

It is urged that the defendant’s physical condition is now such, because of the drinking of the lye after the commission of the homicide, that this court should consider that in connection with the other matters set forth in the record, and in the furtherance of justice modify the death penalty to that of some lesser sentence. With this we cannot agree. If the defendant’s physical condition is such that the Chief Executive of this state feels that under the circumstances he should not suffer the extreme penalty of death, then, in his wisdom, under the constitutional provision vesting in him exclusive authority to issue clemency, he may commute the sentence imposed on the accused. But the defendant’s present physical condition, incurred after the commission of the alleged homicide, is not a proper matter to be considered by this court in passing solely upon legal questions presented by the record to determine whether the defendant is guilty of the crime charged, and whether, in the course of the proceedings in the trial court, he was denied a fair and impartial trial. His physical condition was brought about by a deliberate act committed on his own person many hours after the homicide and does not affect the questions of law which this court must determine in the disposition of this appeal.

We have carefully considered the instructions of the court and the various rulings made by the trial court on the admissibility of evidence and other matters in connection with the trial. The instructions fairly presented the issues to the jury. There is no contention by the able counsel for defendant, that there was any error in the instructions and that they were not as favorable to the defendant as the law authorizes in such cases. In so far as the facts are concerned, the jury was fully justified in concluding that the accused feigned an illness, and that the deceased, while acting as defendant’s benefactor and taking him to a physician for treatment of his supposed illness, was bludgeoned to death by the defendant, who thereupon stole the automobile of the deceased and made his escape. Under such a state of facts, the jury was fully justified in assessing the extreme penalty of the law.

The judgment of the district court of Bryan county is therefore affirmed.

The date originally appointed for the execution of the defendant, James D. Parish, having passed pending this appeal, it is ordered, adjudged and decreed by this court that the judgment and sentence of the district court of Bryan county be carried out by the electrocution of the defendant, James D. Parish, by the warden of the State Penitentiary at McAlester, Olda., on Friday, January 14, 1944.

BAREFOOT, J., concurs. DOYLE, J., absent.


text:
    J. T. GROOMS v. STATE.
    No. A-10210.
    Nov. 3, 1943.
    (142 P. 2d 862.)

      J. G. Clift, of Duncan, for plaintiff in error,
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, J. T. Grooms, was charged by information filed in the district court of Stephens county with the crime of driving a motor vehicle on a public highway while under the influence of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $100, and has appealed.

It is first insisted that the evidence is insufficient to sustain the conviction.

The proof on behalf of the state showed that shortly after dark on December 8,1940, the defendant was driving his automobile on the paved highway between Waurika and Duncan. At a point on the highway about five miles south of Duncan defendant drove his automobile into- the rear of another automobile going in the same direction as the automobile the defendant was driving. Defendant’s car struck the other automobile with such force as to propel both cars, across the highway and one of the wheels of defendant’s automobile went upon and lodged in the turtle-back of the other car.

The highway patrolman who- arrived at the scene within ten minutes after the collision said that the defendant was drunk. Tn describing his physical condition he stated that he could smell intoxicating liquor on his breath. That defendant staggered when he walked and had to brace himself against a car while talking to him. That he talked thickly and repeated a lot, and his actions in general were those of a drunk man.

The sheriff and one of his deputies each testified that they went to the scene of the collision shortly after it occurred, and there found the defendant and his automobile. They each expressed the opinion that the defendant wag under the influence of intoxicating liquor. They took the defendant home and had his wife put him to bed. The defendant asked them to take him to jail and said he had rather go to jail than to go home. Each of them smelled intoxicating liquor on his breath, but did not know whether it was whisky or beer.

In his own behalf the defendant testified that he had been to Madill and that on his return he stopped at Wau-rika and drank two bottles of beer and ate a sandwich. That at the time the collision occurred he was blinded by the lights of an approaching automobile and did not see the car ahead of him until he was right on it, too late to stop and prevent the collision. He denied that he was under the influence of-intoxicating liquor. His hand was slightly hurt, in the crash and he was taken to- the hospital by the officers to- have his wound treated.

The doctor who treated defendant’s wound a,t the hospital testified that, in his opinion, the defendant was not under the influence of intoxicating- liquor.

Three other witnesses testified for the defendant that they had known him for a long time and that they had never seen him under the influence of intoxicating liquor. None of them, however, knew anything at all about the facts of the particular case.

The evidence taken as a whole presented a disputed question of fact for the determination of the jury as to whether the defendant, at the time of the collision, was operating an automobile on a public highway while under the influence of intoxicating liquor.

In the similar case of Pooler v. State, 70 Okla. Cr. 399, 104 P. 2d 733, 105 P. 2d 553, it is stated: .

“Where the evidence is conflicting, the weight of the evidence and the credibility of the witnesses is for the jury. This court will not substitute its judgment for that of the jury and the trial judge, where there is evidence reasonably tending to support the conclusions arrived at by the jury.”

It may have been that the defendant had only drunk two bottles of 3.2 per cent beer just as he testified. It is not a question of how much intoxicating liquor a person accused of operating his car while under the influence of intoxicating liquor has drunk, but rather á question of whether or not he has inbibed enough alcoholic drink to affect his faculties to such an extent that the jury, under all the facts in the case, could reasonably conclude that he was under the influence of intoxicating liquor.

It is next insisted that the county attorney and the assistant county attorney committed reversible error by reason of certain improper remarks they allegedly made to the jury in their closing arguments.

The record discloses that at. the conclusion of the trial the defendant, through his counsel, prepared and filed an instrument in the record which reads as follows:

“State of Oklahoma vs, J. T. Grooms,
“The defendant excepts to the following statements made to the jury by Mr. Speer, Assistant County Attorney: ; '
“This man stopped in beer joints, from the time he left M'adill until he reached Waurika drinking beer and whiskey and spent the biggest part of the day drinking and spent several hours in Waurika drinking more beer and whiskey. That Grooms told Grady Neal he couldn’t arrest him and put him in jail.
“The defendant excepts, to the following statements made to the jury by Mr. Marmaduke, County Attorney.
“Just four hours ago Mr. Dixon came to me and; asked if there was anyway he could get out of testifying against his old friend Tom Grooms. That during our conversation Mr. Dixon stated that he and Tom Grooms had been friends for years and he sure hated to hurt his old friend.
“Excepted for the reason that there was, no evidence in the record of the facts stated by Mr. Speer. And any conversation between Dixon and Marmaduke not had in the presence of the defendant would be inadmissible and said remarks were prejudicial and improper.”

If the remarks incorporated in this statement were in reality made by the prosecutors, they were certainly statements made outside of the record and not justified by any of the evidence introduced at the trial. The proper procedure would have been for counsel for defendant to have objected and excepted to the improper argument of the county attorney at the time it was made and move the court to direct the jury not to consider the same. If the statement is such that its effect could not be erased from the minds of the jury, but substantially prejudiced the defendant, it would constitute reversible error and grounds for a new trial.

Here, however, the record does not disclose that the defendant made any objection to any of the argument of the county attorney or his assistant, other than the recital in the instrument filed after the arguments had been completed. There is nothing in the record to show any action of the trial court in connection with the objection to the alleged improper argument, and without a proper record on this question showing the ruling of the court thereon or a statement of the trial court or court reporter that the argument alleged to have 'been made was in reality made, we may not consider such issue.

In the case of Quitman v. State, 35 Okla. Cr. 245, 250 P. 441, it is held:

“Exceptions must be .saved to alleged improper remarks of the prosecuting attorney in his argument to the jury, and such remarks must be preserved by being incorporated in the case-made, or by bill of exceptions duly allowed, to render them available on appeal; and, when not so preserved in the record, such remarks cannot be shown by affidavit or mere recitals, in a motion for new trial.”

In the case of Herren v. State, 74 Okla. Cr. 432, 127 P. 2d 215, it is stated:

“Ordinarily, error cannot be predicated on mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

In the case of Allen v. State, 74 Okla. Cr. 203, 124 P. 2d 737, 738, this court held:

“If improper statement was made by special prosecutor in closing argument to jury and defendant desired to complain on appeal, the statement should have been properly preserved when made, rather than at close of arguments.”

It is our opinion, after a consideration of tlie entire record, that the defendant bad a fair and impartial trial and that there are no material errors which would justify or require a reversal of the judgment of conviction.

The judgment of the district court of Stephens- county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., absent.