text:
    TAH DO QUAH v. STATE.
    No. A-9200.
    July 16, 1937.
    (70 Pac. 2d 820.)

      McFadyen & McFadyen, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of second-degree forgery, convicted and sentenced to serve a year in the state penitentiary. The record was properly preserved, and defendant has appealed.

The testimony of the state shows that G. 0. Bauman was the manager of the Bauman Grocery Company, of Anadarko, Okla.; that a ticket or order for $25 in merchandise purporting to be signed by W. E. McCowan, superintendent of the Kiowa Agency, on or about the 20th of August, 1935, was presented to him by the defendant; that the name of W. E. McCowan was forged to the order; that the defendant procured on said order $10.08 worth of groceries, and $2 in cash.

Superintendent W. E. McCowan, of the Kiowa Agency, testified the name signed to the order was not his name or that he authorized any one to sign it.

The defendant, testifying in his own behalf, admitted he was a member of the Comanche Tribe of Indians, and his family consisted of his wife and children and his mother; that he lived 2% miles east of Fletcher, in Comanche county, on a farm; that he tried to get work at different places, that he was hard up, almost on starvation; that his immediate family owned 500 acres of land. “I got those blanks at the agency and took them down home and filled them out and got the groceries and $2.00 in cash; I got both the orders the same day; I signed McGowan’s name to this one. My reason for signing his name was to get some groceries. I had back rents and went to the office and they laughed at me; I talked with Mr. Gillette and Mr. McGowan and they both turned me down. I went to the renter and he promised to send me the money on the 10th of August, and I waited for the money until that time.”

The defendant admits signing the name of the superintendent to the order introduced in evidence, and testified to by Superintendent McGowan.

Several errors have been assigned by the defendant, which errors have been carefully considered for the reason that the record discloses a pitiful condition of the defendant, showing him to be an Indian of limited experience, and, as shown by the testimony which is uncon-tradicted by the state, the defendant tried to get work to provide for his family; that his family had a 500-acre farm which was under the supervision of the agency; his tenant was behind with his rent, and that the defendant in his desperation violated the laws of his country, and does not deny it. The record clearly shows the defendant was not a criminal at heart; that he was tempted and without authority of the superintendent forged the name of McCowan, superintendent of the Kiowa Agency, and procured a small amount of groceries and $2 in cash. The evidence is sufficient to sustain a conviction.

Section 3204, O. S. 1931 (22 Okla. St. Ann. § 1066), is as follows:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by rule of the court.”

After a careful consideration of the circumstances and evidence contained in the record, we believe the punishment of one year in the state penitentiary imposed upon the defendant is excessive, and should be modified from one year to 60 days, and, as modified, the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte CECIL L. FERGUSON.
    No. A-9323.
    July 16, 1937.
    (70 Pac. 2d 1094.)

      Truman Harrison, for petitioner.
    Mack M. Braly, City Atty., for respondent.
   DOYLE, J.

This is an application for writ of habeas corpus, wherein the petitioner alleges that he is unlawfully imprisoned and restrained of his liberty, and seeks to secure his release by order of this court from the custody of the chief of police of the city of Ada.

Petitioner alleges that he is engaged in the retail business of selling meats, groceries, and fruits at 516 East Main street, in Ada, his place of business being commonly known as “The Green Spray Market.”

That he is charged with violating Ordinance No. 622 of said city, entitled:

“An Ordinance prohibiting the sale of groceries and meats on Sunday Avithin the corporate limits of the city of Ada, Oklahoma, repealing all laws and ordinances or parts of laws and ordinances in conflict herewith and declaring an emergency.”

Said ordinance is as follows:

“Be it Ordained by the Board of Commissioners of the City of Ada, Oklahoma, in Regular Session Assembled, on This 2 Bay of August, 1932.
“Sec. 1. It shall be unlawful and an offense for any person, or persons, owning, managing or being in charge of any grocery store, meat market or any shop, store or business house of any kind whatsoever to sell or to attempt to sell any groceries or meats on Sunday within the corporate limits of the City of Ada.
“Sec. 2. Any person who shall violate the provision of this ordinance, shall, upon conviction thereof, be punished by a fine of not less than four ($4.00) dollars, nor exceeding a sum, including both fine and costs of twenty ($20.00) dollars, and upon failure to pay such fine and costs shall be imprisoned in the city jail until such fine and cost have been paid.
“Sec. 3. All ordinances, laws and parts of ordinances and laws, in conflict herewith are hereby repealed.”

Petitioner further alleges:

“That said restraint is illegal and unauthorized in that the said ordinance is not general and uniform in its operation and effect; that it does not apply to all merchants selling on Sunday commodities, articles of trade, and merchandise, and that said ordinance is special and exclusive and affects only those who sell groceries and meats on Sunday and constitutes class legislation; that it is an attempt on the part of the city officials to regulate private business and industry; that said ordinance is inconsistent with and in conflict with and is repugnant to the general statutes of the state of Oklahoma covering the same subject matter and especially with respect to section 2564 of the Oklahoma Statutes of 1931; that said ordinance, if enforced, would constitute an invasion of plaintiff’s property rights and cause irreparable loss and damage ; that the same is a violation of the Fourteenth Amendment of the Constitution of the United iStates and in effect takes away his property rights without due process of law.”

The facts stipulated constitute a violation of said ordinance on the part of the petitioner, and the only question for determination is its validity.

The city of Ada is a city of the first class and is under a charter form of government adopted under the authority of section 8(a), article 18, state Constitution.

Under the constitutional provision, any city containing a population of more than 2,000 inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state, and a city adopting a charter is accorded full power of local self-government, and as such municipal corporation, under its charter it has power to enact, ordain, and enforce ordinances for the purpose of protecting the public peace, order, health, morals, and safety of the inhabitants, even though general statutes exist relating to the same subjects. Shinn v. Oklahoma City, 59 Okla. Cr. 433, 61 Pac. 2d 1126.

The courts of this state have> uniformly held that the provisions of a charter adopted and approved in accordance with such constitutional provision become the organic law of such municipality and supersede the laws of the state in conflict therewith in so far as they attempt to regulate merely municipal matters. In re Simmons, 4 Okla. Cr. 662, 112 Pac. 951.

And it has been further held that such charter provisions, where they conflict with the general laws of the state, must give away, and, while they may run current with the general laws of the state, they may not run counter thereto. State ex rel. Burns v. Linn, 49 Okla. 526, 153 Pac. 826, Ann. Cas. 1918B, 139.

In other words, a municipality may move in the same direction as the Legislature, but not contrary to nor 'in an opposite direction. 3 McQuillin on Municipal Corporations, § 894; Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533. Ex parte Johnson, 13 Okla. Cr. 30, 161 Pac. 1097.

It is contended that the ordinance in question is invalid as contravening section 59 of article 5 of the Constitution, prohibiting class legislation, in that it does grant special privileges or immunities to some citizens and deny them to others, and is inconsistent with the fourth subdivision of section 2564, Okla. Stats. (21 Okla. St. Ann. § 908), which provides that:

“The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:
- “First. 'Servile labor, except works of necessity or charity.
“Second. Trades, manufactures and mechanical employment.
“Third. All shooting, horse racing or gaming.
“Fourth. All manner of public selling, or offering or exposing for sale publicly, of any commodities, except that meats, bread, and fish may be sold at any time before nine o’clock in the morning, and except that food and drink may be sold to be eaten and drunk upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day.”

Laws relating to the observance of Sunday have been uniformly recognized as being within the right of the Legislature to enact for the purpose of promoting the. order and morals of the people and of securing their comfort, happiness, and health, and therefore as being a legitimate exercise of the police power. 25 R. C. L. p. 1416; Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533.

In State v. Chesney, 29 Okla. Cr. 251, 233 Pac. 236, this court held:

“The Legislature has power to impose upon the public the civil duty of observing one day in seven as a day of rest, but it is beyond its power to impose the observance of Sunday as a religious duty.” Citing Krieger v. State, 12 Okla. Cr. 566, 160 Pac. 36.

The express and implied powers granted to municipalities in this state, relating to police regulations, cover a multitude of subjects, among those enumerated in the statute being to enact, ordain, alter, modify, or repeal any and all ordinances, not repugnant to the laws of the United States and the Constitution and laws of this state, as shall be deemed expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, and measures affecting the health and general welfare of the community. Section 6380, St. 1931 (11 Okla. St. Ann. § 642).

In Ruling Case Law it is said:

“A municipal ordinance of a regulatory nature in contravention of the natural rights of individuals enacted under general charter powers is not only required to be constitutional, but it must be reasonable as well; that is, the court before which it is brought must be able to see that it will tend to promote the public health, morals, safety or welfare; that the means adopted are adapted to that end, and that it is .impartial in operation and not unduly oppressive upon individuals.” 19 R. C. L. 805.

The general rule that municipal corporations can exercise only such powers as are either expressly conferred on them or are necessary to carry into effect the powers thus conferred applies to the enactment of ordinances regulating the observance of the Sabbath.

Counsel for both the petitioner and the respondent have filed able and elaborate briefs. In the cases cited, ordinances were considered which forbade generally the keeping open of business places or pursuing ordinary day labor on Sunday, bnt containing provisions excepting persons who usually observe some other day of the week as the Sabbath, and excepting works of necessity and charity, and excepting drug stores and certain other enumerated lines of business. To refer to all the cases cited by counsel would extend this opinion to too great a length.

It requires no argument to prove that there is a well-marked difference between an ordinance which forbids all secular business on Sunday, with certain clearly defined and reasonable exceptions, from one which picks out one particular business and forbids it being exercised on Sunday, but permits all other kinds of business.

In the case of City of Denver v. Bach, 26 Colo. 530, 58 Pac. 1089, 46 L. R. A. 848, the Supreme Court of Colorado held:

“An ordinance prohibiting any person, firm, or corporation to keep open, within the limits of the city, any clothing or other certain enumerated stores, or to expose or offer for sale, or give away, within the city any clothing or other articles of merchandise mentioned, on Sunday, in as far as it affects dealers in clothing, is void, as class legislation.”

In the opinion it is said:

“If the ordinance can be upheld, it must be upon the ground that prohibiting keeping open stores for the sale of that character of merchandise upon that day is necessary for the welfare of the public, or other of the ends to be achieved for the promotion of which police powers may be exercised by the city under its charter. The ordinance in question does not extend to the sale of all classes of merchandise or all avocations. Many are exempt-from its provisions which are neither necessary nor charitable, because not mentioned, the sale or carrying on of which on Sunday would have precisely the same effect upon the public that the business of appellee would, and bear the same relation to the object to be attained by the ordinance that the business of appellee does. So that, although the ordinance is general in the sense that it affects alike all engaged in the business of selling clothing, it lacks the element of uniformity, in the legal meaning of that term, because it imposes upon them restrictions ostensibly for a purpose from which others are exempted, but whose business or avocation bears the same relation to the result sought to be effected by the ordinance as does that of appellee. Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803 [32 L.R.A. 664]. So that the class to which the ordinance is applicable when tested for uniformity, is all who engaged in lawful merchandising or other lawful occupations in the city, other than necessity or charity, over which it has no particular control, or whose business or avocation does not tend to promote disorder. * * *
“Experience has demonstrated that to permit class legislation where a general law can be made applicable is fraught with danger; for it frequently results that a legislative body, under the guise of a law, oppresses a class or particular avocation.”

In Elliott v. State, 29 Ariz. 389, 242 Pac. 340, 46 A. L. R. 284, the Supreme Court of Arizona held:

“An ordinance prohibiting the opening on Sunday of stores in certain lines of business, and allowing the opening of those in other lines, held not a general Sunday closing ordinance, with reasonable exceptions of works' of necessity and charity, but in effect one granting special privileges and immunities to certain classes, while without legal excuse denying them to others, in violation of Const. art. 2, § 13.”

In the opinion it is said:

“There are many cases in which the issue above set forth has been discussed. The decisions have been as varied as the statutes on which the actions arose. But running throughout the best considered opinions we find, one general principle adhered to. If the obvious purpose of the act is to grant a general day of rest to the community, even though certain works declared to be of necessity or charity are permitted, it is generally upheld. If, on the other hand, it is apparent that the intent and effect of the law is to prohibit the exercise of certain particular occupations, legitimate and laudable in themselves, while allowing other businesses, not reasonably to be distinguished from those prohibited, to be carried on freely, the Statute is usually declared to be unconstitutional. Chan Sing v. Astoria, 79 Ore. 411, 155 Pac. 378.”

Counsel for respondent in his brief says:

“The Missouri Supreme Court in City of St. Louis v. De Lassus, 205 Mo. 578, 104 S. W. 12, held that an ordinance prohibiting the opening of a meat shop or the selling of meats after 9:00 o’clock a. m. on Sunday was' not class legislation nor discriminatory.”

In the body of the opinion the court says:

“No reasonable man will insist that the exceptions in section 2244 [Mo. St. Ann. § 4352, p. 3019] in favor of the sale of articles of immediate necessity on Sunday rendered section 2243 [Mo. St. Ann. § 4351, p. 3019] void as unequal and arbitrary; on the contrary, it might well be contended that, in the absence of such qualification, the law was arbitrary and unjust in itself. When the municipal assembly came to the consideration of this statute as applied to the conditions of a great and populous city, doubtless it was confronted with the question: What werq and are acts of necessity and charity? And it must have occurred to that body that thousands of persons were and are dependent for their supply of meats, particularly fresh meats, upon the retail meat shops, and that thousands of them in all probability were not provided with refrigerators or cold storage in which to keep fresh meat, purchased on Saturday, fit for food on ¡Sunday, especially during the hot weather. Accordingly, it was deemed proper and wise to declare and enact by a general provision that the sale of meat up to 9 o’clock in the forenoon on Sunday should be considered an act of immediate necessity, and thus relieve the vendors or proprietors of these meat shops of the burden of showing in each individual instance that the furnishing of meat to a family on Sunday morning up to 9 o’clock was an act of immediate necessity. Not only is this provision of the ordinance in question not adverse class or special legislation against the owners of these shops, but it is more properly a special dispensation in their favor, hurtful to no one, but a wise discrimination in favor of thousands of families who are dependent for their supply of meat upon these meat shops, and in no sense arbitrary. Such exceptions are to be found in general statutes throughout the different states, and have been sustained. In our opinion, the ordinance is not unconstitutional, but is a wise and salutary enactment.”

We fully concur in the views expressed in the quotations from the opinions in the foregoing cases and the principles established by them.

The laws of the state operate within the limits of municipalities the same as elsewhere unless otherwise clearly provided by the statutes.

It does not appear that the ordinance as framed will promote the peace, welfare, health, or other ends for the promotion of which the police power of the city may be exercised.

It is apparent from the provisions of section 1 of said ordinance that it is inconsistent with and is in conflict with the statutes.

It will be observed that the ordinance in question does not contain the exceptions mentioned in the statute (section 2564, St. 1931 [21 Okla. St. Ann. § 908]) “that meats, bread, and fish may be sold at any time before nine o’clock in the morning” and excepting “works of necessity or charity.”

As to the invalidity of the ordinance in question, there can be no doubt on account of its repugnancy to the statute. It is apparent that the ordinance, in so far as it prohibits the sale or the attempt to sell any groceries or meats on Sunday is directed to a particular class of business, with a general exemption to all other classes.

It follows that the classification in the ordinance is arbitrary and unfair, and no substantial distinction exists between the sales prohibited and those permitted.

It is obvious that the only thing the city commissioners attempted to do in said ordinance was prohibiting the sale of “groceries or meats on Sunday within the corporate limits of the city of Ada.”

It is evident from its language that the ordinance is not a general Sunday closing ordinance with reasonable exceptions, but a special one, aimed without any apparent legitimate reason at a class of business, with a general exemption to all other classes, and does, therefore, in effect grant special privileges and immunities to certain classes of citizens, while, without legal excuse, denying them to others.

For the foregoing reasons, we are of opinion that said ordinance is void because in violation of the Constitution (article 5, § 59) prohibiting a special law where a general law can be made applicable, and it is inconsistent with the laws of the state.

It follows that the petitioner is entitled to a discharge from the imprisonment from which he complains, and he is therefore by the judgment of this court, discharged therefrom.

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


text:
    ESTES v. CRAWFORD, District Judge.
    No. A-9195.
    Sept. 8, 1936.
    (60 Pac. 2d 799.)
    Geo. C. Crump, for petitioner.
    The Attorney General and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is an application for writ of prohibition for the purpose of prohibiting the district court of Hughes county and Tal Crawford, as judge thereof, from proceeding further in the trial of an information filed in said district court wherein petitioner and others are jointly charged with making false returns. Omitting formal parts, said information is as follows:

“Now comes Lee Warren Crutcher, the duly qualified and acting county attorney in and for Hughes county, state of Oklahoma, and gives the district court of Hughes county and state of Oklahoma to know and be informed that O. B. Harmon, W. P. Estes and S. L. Wooley did, in Hughes county, :and the state of Oklahoma, on or about the 7th day of July, in the year of our Lord one Thousand nine hundred and 36, and anterior to the presentment, hereof, commit the crime of making fale returns in the manner and form as follows, to wit:
“That at the time and in the county and state aforesaid O. B. Harmon, W. P. Estes, and S. L. Wooley, being then and there counters in Stuart precinct, Hughes county, Okla., and acting together, did willfully, wrongfully, unlawfully, fraudulently, corruptly, knowingly and felon-iously issue a false certificate of the returns of the primary election held in Stuart precinct in Hughes county, state of Oklahoma, in the following particulars, to wit: That in the race for .State Senator for the State Senatorial District the votes actually cast for the three candidates running for said office were as follows:
“That Don Wilbanks actually received 130 votes;
“That W. N. Barry actually received 69 votes; and
“That C. H. Baskin actually received 6 votes;
■ — whereas, the certificate of returns issued by the said O. B. Harmon, W. P. Estes, S. L. Wooley, and signed by them and each of them fraudulently, corruptly and feloniously showed that Don Wilbanks received 100 votes; that W. N. Barry received 102 votes; and that C. H. Baskin received 10 votes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
“L. W. Crutcher,
“County Attorney.”

Upon the filing of the petition the respondent interposed a demurrer thereto' on the grounds that said petition does not state facts sufficient to entitle the relator to a writ of prohibition, or to the relief prayed for.

The cause was submitted on the petition and the demurrer thereto'. The record shows that to this information said defendants filed a motion to quash and interposed a demurrer thereto on the ground that said district ¡court had no jurisdiction of the offense charged or attempted to be charged therein against said defendants, which motion and demurrer were overruled by the court and exceptions reserved. Thereupon the cause was duly assigned and set for trial in said court.

It is averred in said petition that:

“The said district court and the said Hon. Tal Crawford, as the judge 'thereof, has no power or authority to hear, try and determine the said charge alleged in said information, and has no power or authority to assess or inflict any punishment in said cause, and the said information does not charge any offense the subject-matter of which is within the jurisdiction of said district court; that said charge and information dO' not charge a felony, but only a misdemeanor and if triable at all, is within the jurisdiction of the county court of Hughes county; that said information is void; that the proceedings and orders thereunder made by the said judge thereof are void; the holding of this petitioner to answer and stand trial on said information and charges in said court is illegal and absolutely void, and said proceedings are oppressive and unnecessarily vexatious and can finally result only in a void proceeding if permitted to go on.
“Your petitioner further states that the information charging this petitioner, W. P. Estes, also includes O. B. Harmon and S. L. Wooley; that there are two informa-tions filed in the district court of Hughes county, Okla., charging the defendants therein with making false election returns in the ¡State Senator’s race and in the sheriff’s race, and the same will be tried separate and distinct from each other; several jurors will be called in said causes and in every respect the expense to the trial and to the defense of the crime charged will have to be undergone in each and all of said prosecutions; and the expense incident to each trial by the defendant therein will have to be made by him in each separate case.
“Your petitioner further states that he has no adequate remedy at law by appeal that the ordinary remedy by appeal is not adequate in this: that it would entail, if a conviction thereof should be had, the expense and vexation of a trial in the court which the petitioner believes and therefore alleges would have no jurisdiction, and the expense and annoyance of a trial, and the preparation of an appeal in these cases would entail a large expenditure of money that never could be recovered by this petitioner and would necessarily be a waste of time and money which would be entirely lost to this petitioner herein and to the state of Oklahoma in the prosecution of said causes.”

The motion to quash and the demurrer to the information were on the grounds:

“That said information does not charge any offense, the subject matter of which is within the jurisdiction of the district court, and does not charge a felony but only a misdemeanor, and if triable at all is within the jurisdiction of the county court of Hughes county.”

Counsel for petitioner contends that .the information in this case is based on the Penal Code (St. 1931, sec. 2034), which reads:

“Every judge of any election, member of any board of canvassers, messenger or other officer authorized to take part in or perform any duty in relation to any canvass or official statement of the votes cast at any election, who willfully makes any false canvass of such votes, or makes, signs, publishes or delivers any false return of such election, knowing the same to be false, or willfully defaces, destroys or conceals any statement or certificate entrusted to his care, is guilty of a misdemeanor.”

And that upon the authority of Warner v. Mathews, District Judge, 11 Okla. Cr. 122, 143 Pac. 516, the district court is without jurisdiction to try misdemeanors, whether they involve official misconduct or not.

Prohibition is an extraordinary writ, and cannot be resorted to when. the ordinary and usual remedies provided by law are available. It will only issue where an inferior tribunal does not have jurisdiction or assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force. Jeter v. District Court, 87 Okla. 3, 206 Pac. 831.

Appellate courts should not interfere by writ of prohibition with the trial of causes where the trial court has jurisdiction of the subject matter and the person of the defendant; but such trial court should be permitted to proceed to judgment, and any irregularities should only be reviewed upon appeal. Corley et al. v. Adair County Court, 10 Okla. Cr. 104, 134 Pac. 835.

Section 10 of article 7 of the Constitution defines! the jurisdiction of district courts. We quote a part of said section 10 as follows:

“The district courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court, and such appellate jurisdiction as may be provided in this Constitution, or 'by law.”

Section 12 of article 7 defines the jurisdiction of county courts. We quote a part of said section 12 as follows:

“The county court, co-extensive with the county, shall have original jurisdiction in all probate matters, and until otherwise provided by law shall have concurrent jurisdiction with the district court in civil cases in any amount not exceeding $1,000, exclusive of interest: Provided, that the county court shall not have jurisdiction in any action for malicious prosecution, or in any action for divorce or alimony, or in any action against officers for misconduct in office. * * *
“The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction.”

It is insisted that since a violation of section 2034, supra, is declared by its provisions to be a misdemeanor, jurisdiction of any violation thereof is conferred upon the county court exclusively.

With this contention we do not agree. It is our opinion that the Constitution confers original jurisdiction of all such offenses, whether felony or misdemeanor, upon the district court. And the constitutional prohibition in article 7, sec. 12, against the exercise by the county court of jurisdiction in actions against officers, includes all actions against such officers for misconduct, and jurisdiction over such proceedings is in the district court.

In Ex parte Moody, 3 Okla. Cr. 590, 108 Pac. 431, 432, it is said:

“The. prohibition contained in the Constitution against the exercise by the county court of jurisdiction in actions against officers for misconduct in office is not limited to actions for the removal of such officers from the positions which they occupy on account of the official misconduct, but extends to and includes any and ¡all actions against such officers for misconduct in office, it matters not what the nature of the action or the punishment inflicted may be. * * * Any statute attempting to give jurisdiction to the county courts or justices of the peace to try such cases would be unconstitutional and void. Such jurisdiction is in district courts.”

And see State ex rel. v. Russell, District Judge, 33 Okla. 141, 124 Pac. 1092.

In the case of State v. Young, 20 Okla. Cr. 383, 203 Pac. 484, 487, this court said:

“We find no reason to doubt the correctness of the rule announced in the Moody Case.”

In our opinion the holding of this court in Warner v. Mathews, 11 Okla. Cr. 122, 143 Pac. 516, and McDaniel v. Brown, 16 Okla. Cr. 149, 181 Pac. 156, on this question, should not be followed, and we hereby expressly overrule the same as inconsistent with and contrary to the sections of article 7 of the Constitution hereinbefore quoted.

It appearing that the information in this case charges the defendants as election officers with misconduct in office, the jurisdiction over such proceedings is in the district court.

For the reasons stated, the writ of prohibition is denied.

DAYENPOET, J., concurs. EDWARDS, P. J., absent and not participating.


author: DAVENPORT, P. J.

text:
    DALTON CARDEN v. STATE.
    No. A-9196.
    July 16, 1937.
    (70 Pac. 2d 1109.)

      Louie C. Gossett, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was 'by information charged with selling intoxicating liquor, on the 1st day of February, 1936, to Raymond Logan, a minor; was convicted and sentenced to serve a term of one year and one day in the state penitentiary, from which judgment and sentence the defendant has appealed.

Raymond Logan testified that on the evening of the 1st day of February, 1936, he went to the home of the defendant, and bought four pints of whisky. He says he had $1, and before he started to the defendant’s home to buy the whisky a younger brother gave him 50 cents, making a total of $1.50 in money at the time; that he was to pay $2 for the four pints of whisky, but does not state when or how he was to pay the other 50 cents.

The younger brother testified he gave his. brother the 50 cents and he went away to buy the whisky, going in the direction of the home of the defendant, who lived quite a distance from the little town of Albion, Okla.; his brother returned with the whisky, but he does not state where his brother got the whisky from, but that he had four pints of whisky. Raymond Logan is the only witness for the state who makes the statement of the purchase of the whisky from the defendant.

In the trial, as shown by the record, the Logan boys had been charged with some infraction of the law and' had gotten into jail. The amount of whisky claimed to have been purchased by the prosecuting witness is unusual, it seldom appears that a young person or one with limited means, when he goes to buy whisky, buys as much as four pints at a time, and especially is it true when he does not have the money with which to pay the full purchase price, and, where the testimony fails to show what arrangement was made for the balance to be paid, a suspicion is cast on the testimony of the witness.

The defendant in his testimony denies he sold to the prosecuting witness any quantity of whisky on February 1, 1936, and specifically denies he was at home the evening of February 1, 1936. He testifies he went to the city of Talihina to see about making application for his baby bonds, and discovered that he did not have his number, spoken of as a dog tag; that it was at his brother’s home in Poteau; that he returned to Albion about 4:30 in the afternoon, but left with Lancy Smith, in Smith’s car, and drove to Poteau.

The defendant shows by George Cooper, who' was operating a filling station at Albion, that some time- in the afternoon the defendant came to his filling station with some one in a car and bought eight gallons of gas and a quart of oil. The witness Cooper introduced his ledger and sales sheet kept by him showing the date was February 1, 1936, and states to the best of his recollection it was about '5 o’clock in the afternoon.

The testimony of the defendant further shows that he and Lancy Smith drove to' the home of his brother, Raymond Carden, in Poteau, reaching there about 6, or shortly thereafter, in the evening of February 1, 1936; they ate supper at his brother’s home and he and Lancy Smith remained at his brother’s until about 11:30 or 12 o’clock, and then drove back to Albion, reaching there about- 1 or 2 o’clock a. m. the morning of February 2, 1936.

In this statement the defendant is corroborated by Lancy Smith and Raymond Carden.

It is not deemed necessary to set out in detail the testimony in full, as the foregoing gives, the substance of all the testimony introduced at the trial.

The defendant has assigned six errors alleged to have been committed by the trial court. The second assignment is:

“Error of the court in overruling plaintiff in error’s motion for a new trial.
“6. That the verdict as returned by the jury herein is contrary to the law, contrary to the evidence, and contrary to the substantial rights and constitutional liberty guaranteed to every citizen by the Constitution and statutes of Oklahoma.”

The only question under the assignment of errors and the record that the court deems necessary to consider is the question as to whether or not the evidence is sufficient to sustain the conviction and judgment applying the law to the facts in the case. The circumstances surrounding and leading up to the trial of the case, and the testimony of the prosecuting witness, are such that it leaves a doubt in the minds of the court as to whether or not the prosecuting: witness stated facts sufficient to overcome the positive testimony of the defendant and the other witnesses testifying for him as to where he was from 5 o’clock in the afternoon of February 1, 1936, up to 12 or 1 o’clock that night; the defendant not only by his own evidence, and the evidence of other parties, but by the records of the witness George Cooper, shows conclusively that about 5 o’clock in the afternoon he purchased eight gallons of gas and one quart of oil, and left with some one in a car going in the direction of Poteau.

The testimony shows they arrived in Poteau about 6 o’clock in the afternoon, making it impossible, if the evidence of the defendant is true, for the defendant to have been in Albion about dark or a little after, as testified by the prosecuting witness, to sell him the four pints of whisky that the witness testified he bought from the defendant.

In all criminal cases the defendant is entitled to the presumption of innocence, and it follows him throughout the trial until overcome by competent testimony showing beyond a reasonable doubt his guilt.

Section 3064, O. S. 1931 (22 Okla. St. Ann. § 836), is as follows:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved and in a case of a reasonable doubt as to' whether his guilt is satisfactorily shown, he is entitled to1 be acquitted.”

Under our criminal procedure a new trial should be granted when the verdict is contrary to law and the evidence. Under this provision the responsibility of determining Avhether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance, and on appeal upon this court. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled when put upon trial for an offense. Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271; White et al. v. State, 13 Okla. Cr. 76, 162 Pac. 232; Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175.

In Tislow v. State, 36 Okla. Cr. 346, 254 Pac. 511, in the first paragraph of the syllabus, the court said:

“While it is well settled that this court will not disturb a verdict on account of the evidence where there is evidence to support it, the converse rule is equally well settled that it is not only the province but the duty of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it.” Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507.

After a careful consideration of all of the testimony offered by the state and the defendant, we are of the opinion as a matter of law the evidence is insufficient to overcome the presumption of the innocence which accompanies the defendant throughout the trial, and the positive testimony of the defendant and the witnesses who corroborate him, that defendant was not in the town of Albion at the time the prosecuting witness claims he bought the whisky from him to warrant a conviction, and the trial court erred in overruling the motion of the defendant for a new trial. Because the evidence is insufficient to sustain the judgment and sentence, the judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    A. O. ADAMS v. STATE.
    No. A-9170.
    July 16, 1937.
    (70 Pac. 2d 821.)

      Hickman & Hngerman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pnllen and Sam H. Lattimore, Asst. Attys. Gen., and Sim T. Oar-man, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of mnrder in Osage county. He was charged with killing George Gideon by stabbing him with a knife. The court, after hearing the evidence of the state, upon motion, reduced the charge to manslaughter, and the defendant was found guilty and his punishment fixed at four years in the penitentiary. Prom this judgment he has appealed.

Both the defendant and the deceased had been residents of the small town of Avant in Osage county for many years. The defendant had been a member of the school board, and the deceased and defendant had become embittered by reason of certain controversies growing out of the election of a certain school board member. On the day of the killing the deceased drove to the home of the defendant ostensibly for the purpose of selling a calf to him. He was accompanied by his small son, 12 years of age. On being informed that defendant was not at home, he drove to town and saw the defendant across the street and called to him. When the defendant came up to where deceased was, they had some words with reference to certain statements the defendant claimed deceased had made to another party. They finally agreed] to leave together for the purpose of confronting the party who it was claimed heard the statements made by the) deceased. They had not proceeded far when they came to a vacant lot and a fight ensued between them. The evidence was conflicting as to who started the fight or who hit the first blow. In the fight deceased was cut by the defendant with a pocket knife, inflicting a wound about five and a half or six inches long. The fight occurred on Friday, the 19th day of April, 1935, and the deceased died the following Monday from the effects of the wound inflicted by the defendant. The evidence showed that the deceased, after going to see a doctor in the town of Avant, was taken in a car by two parties by the names of Harvey McCoy and Elwood Murray, to- the town of Skiatook, eleven miles away, for the purpose of seeing a doctor and; receiving medical attention. This trip was made on the same day of the fight but some time after it had occurred. The witness Harvey McCoy was called by the state on rebuttal and while upon the witness stand testified to certain conversations with the deceased during the time of the trip to Skiatook. This evidence was objected to by the defendant, and this presents the first and main error relied upon by the defendant for the reversal of this case. When this witness was placed on the stand, on rebuttal, he was asked certain questions about seeing defendant with a certain kind of knife a few days before the difficulty. This was for the purpose of rebutting the testimony of the defendant that the stabbing had been done with a certain knife. Upon taking the witness for cross-examination, counsel for defendant propounded to him the following questions:

“By Mr. Tillman: Q. Are you one of the boys that went to Tulsa with Mr. Gideon in the car? A. No, sir. Q. I ask you if you were one of the boys that went with him — I want to reframe the question and ask you if you are one of the boys that went with him to Skiatook? A. Yes, sir. Mr. Carman: Objected to as improper cross examination. The Court: Sustained. By Mr. Tillman: Q. I mil ask you if, on the way to Skiatook, you had a conversation with Mr. Gideon in which he said this or this in substance: the son of a bitch cut me but when I get well it will be a different story? A. No<, sir. Q. Well, did that conversation or a similar conversation take place at his bed where Gideon was in Skiatook, Oklahoma, at the time you were present? A. No, sir. Q. Huh? A. No. Mr. Tillman: That’s all.”

When these questions were asked and answered, the county attorney asked him the following questions:

“By Mr. Havens: Q. Mr. McCoy, state what George Gideon did say to you on the way down to Skiatook that day about this occurrence? A. Well— Mr. Tillman: Objected to as incompetent, irrelevant and immaterial and! out of the presence of the defendant. The Court: Overruled, Mr. Tillman: Exception. A. You want to know what he said to Skiatook? By Mr. Havens: Q. Yes, sir. A. That is Avhat you want to get? On the way to Barns-dall we asked him if he wanted to go to ¡Skiatook or Bams-dall, and he said Skiatook, so we turned towards Skiatook and we asked him how come Bill to cut him with this knife, and he said he didn’t know as he was going to until he had already cut him Avith the knife. Q. What else did he say? Just state the whole conversation that occurred on the way down to Skiatook. Mr. Tillman: The court understands that we make the same objection to the testimony as being incompetent, irrelevant and immaterial and not cross examination. The Court: Overruled. Mr. Tillman: And. not part of the state’s case and not rebuttal. The Court: It is not, but you inquired about a certain conversation. Mr. Tillman: One particular item and that is all. The Court: Well, they are entitled to bring it out. Mr. Tillman: To which we except. By Mr. Havens : Q. I will ask you this— Mr. Tillman: Wait a minute, the court said he could answer. The Court: Yes sir, what else Avas said was the question. A. Well, I don’t know, we talked quite a bit, I asked him if he was hurt pretty bad and he said he thought he was, I asked him if he was bleeding pretty bad and he said he was, and Murray talked to him some, he was talking to him more than I did, I was driving the car. By Mr. Havens: Q. Did George Gideon say why he struck Bill Adams? Mr. Tillman: Objected to as incompetent, irrelevant and immaterial .and he has asked the conversation. The Court: Overruled. Mr. Tillman: And it is leading and suggestive. A. Yes, sir, he said— Mr. Tillman: Exception. A. ■ — -why he struck Bill. By Mr. Havens: Q. Just state what he told you why he struck Bill. Mr. Tillman: Objected to as incompetent, irrelevant and immaterial and self-serving. The Court: Overruled. Mr. Tillman: Exception. A. He said that the reason he struck Bill was to try to keep Bill from cutting him with the knife. By Mr. Havens: Q. Did he say anything about Bill coming out with the knife? A. Yes, sir. Mr. Tillman: We object to that as leading and suggestive. The Court: Sustained. By Mr. Havens: Q. Just state what he did say, then, with reference to that. A. Well, he said Bill come at him with the knife and struck at him and he said he tried to knock him back so he could not hit him with the knife and he said he could not hit hard enough. Mr. Havens: That’s all. Mr. Tillman: That’s all. And we move to strike all the testimony of the witness as incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Tillman: And improper. The Court: Overruled. Mr. Tillman: Exception.”

It is now earnestly contended by the defendant that the court erred in permitting the introduction of this testimony, and the state contends that the questions asked by counsel for the defendant as above set out opened the door, and, when these questions were asked, the state, on cross-examination, was entitled to prove the whole conversation, and the court did not err in admitting this testimony.

The general rule is that hearsay evidence is not admissible. There are certain exceptions to this general rule which are as well established as the rule itself. These exceptions are: (1) When the statements are made in the presence of a person and are not denied by him; (2) when they form a part of the res gestae; (3) when they constitute dying declarations; (4) when uttered as threats; (5) on cross-examination, the party has the right to have a witness give all of a conversation, when the opposite side attempts to bring out a part of that conversation.

There can he no question hut that the testimony in the instant case does not come within the first four exceptions to the general hearsay rule. This is admitted by the brief filed by the Attorney General, but it is earnestly contended that it falls within the fifth exception. Let us analyze this question and see what is the correct solution. It is argued by the defendant that he does not deny the correctness of the exception stated, but he contends that this rule can only exist where a part or portion of the conversation is first brought out before the opposition can develop the whole conversation, and that in the instant case no part of the conversation was brought out by the witness on cross-examination, therefore, the state had no right to develop the conversation on redirect examination. This is a fine distinction, and a close question, but we believe that an examination and analysis of the questions asked by counsel for the defendant reveals that they were such that permitted the state to go into the matter and have the witness give the whole conversation. One of the questions asked the witness was:

“I will ask you if, on the way to Skiatook, you had a conversation with Mr. Gideon in which he said this or this in substance: ‘The son of a bitch cut me, but when I get well it will be a different story.’ ”

The next question was:

“Well, did that conversation or a similar conversation take place a,t his bed where Gideon was in Skiatook, Okla., a,t the time you were present?”

While it is contended that by these questions being, answered in the negative the witness gave no part of the conversation, yet counsel for defendant by the questions gave the answer himself. He sought to prove by the witness a conversation by the deceased, which, if the witness answered favorably, would be very much to his advantage. These questions asked by defendant were inadmissible just as the questions asked by the state would have been inadmissible if they had been asked on direct examination, and, had this been done, there is no question but that the asking of them on direct examination would have been reversible error. But the defendant, having asked the questions as above indicated, and stating in the question what the conversation was, and giving the jury the benefit of that statement, cannot now complain that the state be permitted on redirect examination to have the witness give the full conversation. It would not be right to have the jury infer that the conversation took place as asked by counsel for the defendant and no opportunity given to explain what the real conversation was. Counsel for defendant opened the subject, and- the state had the right to develop on cross-examination the entire conversation. Graham v. State, 28 Okla. Cr. 266, 230 Pac. 763; Valentine v. State, 16 Okla. Cr. 76, 194 Pac. 254; Gibbons v. Territory, 5 Okla. Cr. 212, 220, 115 Pac. 129, 130; United States v. Knowlton, 3 Dak. 58, 78, 13 N. W. 573, 575; Sager v. State, 11 Tex. App. 110.

We have examined the cases cited by defendant to support his contention, and are of the opinion that they are clearly distinguishable from the case at bar. The main case relied upon by defendant is Shepard v. United States, 290 U. S. 96, 54 S. Ct. 22, 23, 78 L. Ed. 196. In this case, deceased was the wife of defendant, and two days after she was taken to the hospital she asked the nurse about a certain bottle of whisky. When it was produced, she asked whether enough was left to make a test for the presence of poison, and then she stated, “Dr. Shepard has poisoned me.” This evidence was offered by the government as a dying, declaration and was permitted to be introduced upon that assumption. When the- gov: eminent saw it could not be introduced for this purpose, it was then contended that it was admissible because the defense had offered proof that the deceased had threatened suicide prior to her illness and death. The court properly held that the evidence was not admissible, basing as its main reasoning the fact that it had been introduced as a dying declaration and, having been received for that purpose, it could not be held admissible upon some other ground. It will thus be seen that the government offered this evidence as direct testimony. The defense did nothing to bring it out. As stated above, if in the instant case the state had introduced the evidence complained of as direct testimony, without any examination by the defendant, it would have been reversible error, and we should so hold, but such is not the case here. The other cases cited are distinguishable from the case at bar.

The next contention is that the court erred in giving1 certain instructions. These instructions were Nos. 5, 8, 12, and 13, which are as follows :

“No. 5. If you find from the evidence, facts and circumstances in proof beyond a reasonable doubt that in the county of Osage, state of Oklahoma, on or about the 19th day of April, 1935, the defendant A. O. Adams did unlawfully and in a cruel and unusual manner, or by means of a dangerous weapon, although without a premeditated design to effect the death of the deceased, and in heat of passion stab and wound the deceased, as a result of which wound the deceased came to his death, or if you should find from the evidence, facts and circumstances in proof beyond a reasonable doubt that said stabbing of the deceased was perpetrated unnecessarily by the defendant while resisting an attempt by the deceased1 to injure the defendant, or after such attempt had failed, then and under such circumstances it would be your duty to find the defendant guilty of manslaughter.
“Unless you should so find, it would be your duty to acquit the defendant.
“In this connection, you are further told that if you find from the evidence, facts and circumstances in proof that the deceased came to his death under such circumstances as to constitute excusable or justifiable homicide, then under such circumstances it would be your duty to acquit the defendant.”
“No. 8. In determining the question of Avhether or not the defendant was in danger or apparent danger at the time of the homicide, the law requires you to view the circumstances at the time from the defendant’s standpoint, as they reasonably appeared to him, and to determine whether the circumstances under which the killing took place, as they appeared to him, were sufficient to have excited the fear of a reasonable person that his life was in danger, or that he was in danger of receiving great bodily injury, or apparently so, and whether or not he really acted under the influence of such fear at the time.
“You are further instructed that no man can take advantage of his own fault and plead as a defense for taking human life a necessity Avhich arose from his own intentional wrongdoing; and where a person seeks orpro-\rokes a difficulty with the deceased in order that he may have a pretext for killing or inflicting serious bodily injury upon him, and in such conflict does kill the deceased, the defendant is guilty of manslaughter, it matters not how hard-pressed he may have been in the conflict, unless after such proArocation has been given or difficulty sought or provoked, and before the fatal blow is struck, the defendant in good faith abandons such intention and seeks to AAdthdraw from the encounter.”
“No-. 12. You are instructed that if you find from the evidence, facts and circumstances in proof that the defendant herein voluntarily engaged in combat with the deceased, with a view of inflicting corporal punishment to the deceased, then and under such circumstances the defendant could not avail himself of the law of self-defense, unless prior to striking the fatal blow the defendant sought in good faith to withdraw from said conflict and attempted to do so.”
“No. 13. You are further told that even though you may find from the evidence, facts and circumstances in proof that the deceased struck the first blow upon the occasion of the encounter complained of, this fact alone Avould not justify the defendant in taking the life of the deceased unless he did so under an honest apprehension that his life was in danger or that he was in danger of receiving great bodily injury at the hands of his assailant and that the act complained of upon the part of the defendant was done in an effort to save himself from such injury.”

Defendant complains that instruction No. 5 does not define manslaughter in the first degree as that offense is defined by the statute. While the instruction does not literally quote the statute, it does give each of the elements. It says “did unlawfully and in a cruel and unusual manner,” or “by means of a dangerous weapon,” and “in a heat of passion.” These are the identical terms used in the statute defining manslaughter in the first degree. The last part of the instruction says: “that if said stabbing of the deceased was perpetrated unnecessarily by the defendant while resisting an attempt by the deceased to injure the defendant, or after such attempt has failed.” The only difference in the language of the instruction and the statute is that the statute says, “while resisting an attempt by the person killed to commit a crime,” and the instruction says, “while resisting an attempt by the deceased to injure the defendant.” It occurs to us that the meaning expressed in the instruction is the same as expressed by the statute. Certainly under the circumstances in this case the jury knew that the instruction referred to an injury to the person of the defendant at the very time of the difficulty, and did not have reference “to injury to his reputation by slanderous words spoken by the defendant,” as suggested by the brief of defendant. The whole defense was based on the theory that deceased was making an assault with a dangerous weapon, to wit, a rock, upon the defendant, and that the defendant killed deceased in self-defense.

Defendant further complains of the final part of this instruction for the reason that the court does not use the term “reasonable doubt” by stating that, if the jury had a reasonable doubt that the defendant acted in self-defense in stabbing deceased, it would be their duty to acquit the defendant. The law of reasonable doubt was defined in other instructions and in this identical instruction is used at two different places. In the case of Edwards v. State, 24 Okla. Cr. 169, 216 Pac. 947, 948, the court says:

“Particular emphasis is placed on objections to the language used in instruction No. 17, because of an omission to use, at two or three places in the instruction, the words ‘beyond a reasonable doubt.’ The question of reasonable doubt was clearly treated and stressed in other instructions, and an instruction will not be held erroneous for a failure to repeat and reiterate, over and over again, the term ‘beyond a reasonable doubt’ when it appears that in that and other paragraphs of the instructions the court has made it clear to the jury that every issue of fact raised must be proved beyond a reasonable doubt. Davis v. State, 16 Okla. Cr. 377, 182 Pac. 909; Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308; Nutt v. State, 8 Okla. Cr. 266, 128 Pac. [165] 168; Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901.”

In the case of Cole v. State, the last case cited above, the court says :

“The principle of reasonable doubt ah this late day is so firmly intrenched in the criminal jurisprudence of this country, and is so well known by jurors generally, as certainly not to require constant repetition of the rule in every paragraph of the charge, especially where the issues are not involved and no affirmative defense is interposed.”

And in the case of Dodson v. State, 33 Okla. Cr. 85, 242 Pac. 578, 579, the court'says:

“This court has firmly adhered to the principle that the! burden of proof on the whole case is on the state, and that, if there exists any reasonable doubt as to any essential element of the crime charged, the defendant should be acquitted. On the other hand, this court will not indulge in abstruse shades of meaning in the consideration of particular clauses of an instruction, where, from a reading of the whole instruction, it appears that the jury could not have been misled. Jurors are not prone to consider hidden, obscure phases of qualifying clauses.”

The law with reference to justifiable homicide wasi presented fully in instruction No. 6, and the defendant took no exception to the same. In instruction No. 7, the court instructed the jury as to the law of self-defense. The defendant reserved no exception to this instruction. But the defendant does contend with reference to instruction No. 8, which also relates to self-defense, that the court erred in advising, the jury to determine whether the circumstances under which the killing took place, as they appeared tof the defendant, were sufficient to have excited the fear of a reasonable person; the defendant contending that the jury should have been instructed that it should view the matter from the standpoint of the defendant as it appeared to him. This court, in following the rule adopted by a great majority of the states, has held otherwise. In the case of Jamison v. State, 35 Okla. Cr. 302, 250 Pac. 548, 550, the court, quoting from 30 C. J. pp. 30, 31, § 376, states the rule as follows:

“ * * A reasonable conclusion under the circumstances that accused was in immediate danger of death or great bodily harm, although in fact no such danger existed, will be sufficient to eliminate the elements of malice and felonious intent, the appearance and not the reality of danger being the test, although defendant must have entertained an honest belief that he was in such danger; his act must be necessary or honestly believed by him to be necessary to prevent the injury, and the circumstances must have been such as to excite the fear of a reasonable man. * * *’ ”

And in 13 R. C. L. p. 818, § 122, it is said:

’’The rule adopted by a number of the states, and what seems to have been the common-law rule, is that when a person is assaulted, and kills his assailant in self-defense, the question to be determined is, Did the slayer, under all the circumstances as they appeared to him, honestly believe that he was in imminent danger of losing his life, or of suffering great bodily harm, and that it was necessary to* do what he did in order to' save himself from such apparent threatened danger? and not, Would a reasonable man, or a man of reasonable courage, have so believed? The jurors, say the courts giving support to this rule, must place themselves in the position of the defendant at the time of the act, and determine, from all the facts as they appeared to him, whether his apprehension or fear of death or serious bodily injury was reasonable. What appears to be the prevailing rule in America asserts that the apprehension of danger and belief of necessity which will justify killing in self-defense must be a reasonable apprehension and belief, such as a reasonable man would, under the circumstances, have entertained. Under this rule, a man threatened! with death must determine from appearances and the actual state of things surrounding him, as to the necessity of resorting, to self-defense; and, if he acts from reasonable and honest convictions, he will not be responsible criminally for a mistake as to the extent of the actual danger where other judicious men would have been, alike, mistaken.”

The court also announces in this case that this rule is not contrary to the holding of the court in Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365, cited by defendant in his brief in this case.

The defendant also contends that the second paragraph of instruction No. 8 is erroneous. There is one error in this instruction as the court informed the jury that, if the defendant provoked the difficulty in order to have a pretext for killing the deceased, the crime would be manslaughter. It would, under such circumstances, have been murder. However, the defendant does not complain of this error, as the same would be to his advantage, but he does complain by saying that there was no evidence to justify this instruction, and that- the court should have distinguished, for the benefit of the jury, “legal” and “illegal” acts of provocation, because, as he contends, it is not the law that any act of provocation deprives one of the right of self-defense. We think that a sufficient answer to the second proposition is that, if the defendant desired that the jury be informed as suggested in this contention, it was his duty, under numerous holdings of this court, to have prepared and requested! such an instruction. Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263. The defendant cites the cases of Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, and Turnbull v. State, 8 Okla. Cr. 459, 128 Pac. 743, to support his contention. The instruction in the Gibbons and Turnbull Cases were specific instructions involving, the facts in those identical cases.

In the case at bar the evidence showed that there had been ill feeling between the defendant and deceased some time prior to1 the difficulty. The state contended that the defendant was the aggressor, and the defendant that the deceased was. Each contends that the other struck the first blow. Under this contention we are of the opinion that the latter part of instruction No. 8, taking into consideration the facts in this case, was proper. This court, in the case of Wilkie v. State, 33 Okla. Cr. 225, 242 Pac. 1057, 1059, in discussing the rule announced in the Gibbons Case, and upon which the Turnbull Case is predicated, says:

“The instruction under consideration in the Gibbons Case was a concrete instruction, applying the law to the facts in that case. Here instruction No. 8 is an abstract statement of the law. Analyzed, it simply advises the jury that the right of self-defense is for protection and not for aggression, and that an aggressor or a voluntary combatant, armed with a deadly weapon, cannot invoke the right of self-defense. That is undoubtedly a correct abstract statement of law. It was approved in case of McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358.”

And:

“The law dealing with the imperfect right of self-defense was not suggested at the trial, and not attempted to be given by the court. It was the theory of the defendant, not that he provoked the difficulty and then in good faith withdrew, but that deceased provoked the difficulty and was slain by the defendant upon appearance of danger in his necessary self-defense. The holding in the Gibbons Case cannot be extended to apply to the facts disclosed by the record in this case, and the law of self-defense set out in the instructions. It requires too great a refinement of interpretation to say that the instructions as a whole deprived the defendant of his right of self-defense. Whatever error there may be in the instructions, we think, is harmless. Little v. State, 25 Okla. Cr. 190, 219 Pac. 424.”

The objections to- instructions Nos. 12, 13, and 14 have been ansAvered.in the analysis of exceptions to the other instructions. We have carefully read and re-read the instructions and find that, taken as a Avhole, they fairly state the laAV as applied in this case. The defendant having had a fair and impartial trial, the judgment of the district court of Osage county is affirmed.

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


text:
    JAY MAYBERRY v. STATE.
    No. A-9171.
    July 30, 1937.
    (70 Pac. 2d 1106.)

      R. N. Linville, for appellant.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Claud Dobins and Jay Mayberry did in Beckhamj county on or about the 8th day of March, 1935, have in their possession five and one-half pints of whisky with unlawful intent on their part to sell the same. The defendants were tried jointly upon said information. The jury returned their verdicts finding the defendant Claud Dobins not guilty and appellant Jay Mayberry guilty and fixing his punishment at a fine of $50 and, 30 days in the county jail. To reverse the judgment rendered on the verdict he appeals.

Of the various assignments of error, the only questions which require consideration relate to the action of the court in denying the motion of appellant to suppress the evidence obtained by a search of his home on the ground that the warrant was void, and the evidence was obtained in violation of his constitutional and statutory rights.

It appears that appellant, together with his wife, was the proprietor of a filling station on the east side of Elk City on Highway 66, and in the large front room of the house they sold candy, cigars, cigarettes, beer, soda pop, and other soft drinks. The defendant Dobins tended the service station but had nothing to do with the business on the inside and did not live there. On the night of the day alleged, Ed West, sheriff, accompanied by Under-sheriff Henson, and three deputy sheriffs, in executing a search warrant searched the place.

Ed West testified that he made the affidavit upon which the search warrant issued; that when they went to the place that night,. Jay Mayberry was not present, but his wife and the defendant Dobins and two other men were present; that he handed the defendant Dobins the search warrant, and the other officers searched the living rooms.

Jess Thompson testified that he was well acquainted with Jay Mayberry and did business with him for about a year, and that he knew Mayberry and his wife lived in the house back of the filling station; that they found four pints of whisky in the southeast bedroom.

Orlin Jones testified that later on in an icebox in the kitchen they found a half pint of whisky.

When the state rested, counsel for appellant renewed his motion to suppress the evidence and asked for a directed verdict of not guilty, which motion was overruled.

Before the trial appellant filed a motion to suppress evidence. The motion challenged the sufficiency of the affidavit for the search warrant as well as the warrant issued thereon. It alleges that the affidavit is insufficient, in that alter describing the place to be searched by metes and bounds “in N. E. quarter of section 22, twp. 11 R. 21, containing one acre,” it recites: “Affiant further states that the said premises above described are not the private residence of the said Mayberry or Mayberry filling station or parties unknown to affiant.”

In the search warrant the place to be searched is described :

“The private residence and all out buildings and premises situated as follows: (Here follows the metes and bounds.) Whisky, wine, beer are now being kept for the purpose of being manufactured, sold, bartered, given away and otherwise furnished by Mayberry or Mayberry filling station or parties unknown to affiant or of persons unknown.”

That the same is a fatal variance between the complaint or affidavit, and the search warrant.

It further alleges:

“That the complaint for search warrant and search warrant issued thereon are contradictory, irreconcilable, confusing and wholly contrary to the statutes, for the reason it is impossible to- tell from the complaint and the search warrant whether or not the property sought to be searched is the private residence of some party by the name of ‘Mayberry’, or his business place occupied by ‘Mayberry Filling Station’, or whether it is both residence and filling station occupied by a party or by parties unknown to affiant.
“That under and by virtue of said warrant and in violation of the Constitution and statutes, under said warrant a search was made of the private residence of thisi defendant. A copy of said affidavit or complaint for search warrant and a copy of the search warrant' are hereto attached as Exhibits A. and B., hereby referred to and made a part hereof. That said search was further illegal in that it was made in the nighttime contrary to law.”

The court without a hearing overruled the motion and directed that a jury be called. Exception allowed.

Complaint is made that the court erred in refusing to hear evidence in support of the motion.

On the record before us this method of disposing of the motion to suppress evidence was undoubtedly irregular. Where a motion to suppress evidence is sufficient on its face, issue should be taken thereon either by reply or demurrer, and such issue should 'be tried, and if summarily overruled without any issue being taken thereon, such action of the court is irregular.

It is contended by counsel for appellant that the search warrant was void because of the variance between the place described in the complaint and the search warrant, and that neither the complaint or warrant based thereon particularly described the place to be searched. Therefore the same was void because in conflict with the provision of the Bill of Bights, declaring that: “The right of the people to be secure in their persons, houses, papers; and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.” Const, art. 2, § 30. And that said warrant was issued in violation of the statute. Section 2638, St. 1931 (37 Okla. St. Ann. § 87).

It is elementary that the search warrant must authorize the search of the place described in the complaint. The statute provides that the warrant shall command a search of “the premises described and designated in such complaint and warrant.” Section 2635, St. 1931 (37 Okla. St. Ann. § 84).

It is the general rule that laws authorizing invasion of private premises and the sanctity of the home by search and seizure proceedings are to be strictly construed.

It will be observed that the affidavit or complaint states positively that the place to be searched is not the residence of any of the parties, “Mayberry, Mayberry Filling Station, or parties unknown,” but the search warrant commands the search of the private residence and all out buildings on the premises described.

Obviously the affidavit or complaint for the search warrant was insufficient to authorize a search warrant to issue to search the home of appellant, in that it does not describe the place that the officers searched and seized the intoxicating liquor offered in evidence. See Clanton v. State, 59 Okla. Cr. 365, 60 Pac. (2d) 415, and cases cited.

It follows from what has been said that the search and seizure in this case was an unlawful trespass, and that the evidence procured thereunder inadmissible, was improperly admitted over appellant’s objections in violation of his constitutional and statutory rights.

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

DAVENPORT, P. J., concurs. BAREFOOT, J., absent.


text:
    RAYMOND VAN BRUNT v. STATE.
    No. A-9186.
    July 30, 1937.
    (70 Pac. 2d 1103.)

      Homer H. Bishop, and Billingsley & Kennerly, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, the defendant in the trial court, was by information charged with the crime of murder, was tried, convicted of manslaughter in the first degree, and sentenced to be confined in the state penitentiary for a period of ten years, and by petition in error, with case-made attached, has appealed to this court.

The testimony on behalf of the state in substance shows the Cole and Van Brunt families lived in the same block on Timmons street, in the city of Seminole, Seminole county, Okla. For some time prior to the date of the killing, April 30, 1935, there had been trouble between the families; on the day of the killing, about an hour and a half before the trouble, as shown by the defendant’s testimony, the Cole and Van Brunt families had a row, and the Cole family, not including the deceased or the father of the deceased, went to the Van Brunt house and were quarreling and abusing the defendant, and finally became so boisterous the officers were sent for and the defendant in this case went to' the office of the justice of the peace, but no charges were filed against the Coles. It is uncontradicted by both the state and the defendant that the families were unfriendly.

After the defendant returned to his home, as he states, about an hour and a half thereafter, Frank Cole, the father of Cecil Cole, the deceased, came home and received information that there had been another family row, and that the defendant in this case had been abusive and had taken part in the row. He saw the defendant coming across the street toward his home and Frank Cole went out to1 where the defendant was:, and states he spoke to the defendant and told him he was getting tired of his abusing and annoying his family.

The defendant says Frank Cole took hold of his hands and then let loose of one of them and struck him, and defendant ran to his home. Frank Cole says he did not strike him with anything,, but did stop the defendant and told him he had to desist in his conduct toward the Cole family. This meeting of the parties was just in front of the Van Brunt home.

It is not disputed by the defense, and the state shows by positive testimony, that when the defendant broke away from where the deceased and his father were standing he rushed into the house 'and came back in a few minutes with his pistol in his hand and began firing. The proof shows Cecil Cole was wounded in the shoulder, and one bullet that produced his death struck him in the temple; one bullet burned or grazed the car of Frank Cole, and one of the Cole girls was slightly wounded. Six shots were fired by the defendant at the Coles. The defendant says lie was shooting a.t Frank Cole and not at any other member of his family; that he did not intend to injure Cecil Cole. Witnesses who did not see the first shots fired saw the defendant when he was firing the last shots, some of them stating he was down on one knee holding the pistol in both hands. The deceased, Cecil Cole, fell in the street, dying from the effects of the wound in his head.

The defendant admits firing six shots; that he then' went back in the house for the purpose of getting more shells and that he reloaded the pistol. Several witnesses testified to seeing the defendant on the porch, some of them saying he got off the porch, ’but they all admit he fired the shot that took the life of Cecil Cole, and that he continued to shoot until all the shells in the pistol were fired.

No weapon was shown to be on the deceased, or father of the deceased, at the time the defendant was shooting. The defendant states Frank Cole, the father of the deceased, struck him with some kind of a stick or something while out at the edge of the street where they first met and were talking. He admits after the incident in the street he turned and went into his house, and, instead of remaining in the house, secured the pistol from a cedar chest and came back out and went to shooting. He had abandoned the difficulty or fight and left Frank Cole in the street, and the proof shows that neither Frank nor the deceased was pursuing the defendant or attempting in any way whatever to do him an injury.

The proof on behalf of the defendant conclusively shows there was considerable trouble between the two families, and that the anger of the defendant had not cooled from the time he had had the trouble with the Cole family more than an hour and a half before the shooting toot place. The defendant stated he fired the shots believing it was necessary to defend himself from being killed or receiving great bodily injury.

The foregoing is the substance of the testimony as to what took place at the scene of the difficulty.

The defendant urges as grounds for reversal of his case six assignments of error. The first, second, and third assignments relate to the question of the verdict being, contrary to the law and the evidence. The fourth assignment raises the question of the admission by the court of irrelevant and immaterial evidence. The fifth and sixth question the right of the court to permit Andrew Miller to testify in chief in said court, over the objections of the plaintiff in error, for the reason that the post-office address of said witness Andrew Miller was not served upon the defendant or his attorney of record; and for the further reason that the court erred in refusing to grant plaintiff'in error reasonable time in which to prepare to meet the evidence and testimony of the state witness Andrew Miller.

It is urged by the defendant that the court erred in permitting Andrew Miller to testify as a witness in chief for the reason that the correct post-office address of Andrew Miller was not given when the name of Andrew Miller was served on the defendant as his post-office address was given as Marietta, Okla.

When the case was called for trial, the state and the defendant announced ready for trial and testimony was taken, no question being raised that the post office address of Andrew Miller was incorrect, until he was called as a witness after the jury had been impaneled' and other witnesses called and testified. Miller in his testimony stated that Bumeyville was his post office but that he sometimes received his mail at Marietta, when' he was there visiting with his grandparents; that at the time Cecil Cole was killed he was living in an apartment in Seminole, and was just across the street when the shooting took place. The defendant admits the name of Andrew Miller was named in the list of witnesses to be used in chief, and that he had not raised the question or complained that the post-office address was not correctly given.

The defendant does not insist that, by reason of the fact that the post office being incorrectly given, his rights1 had been prejudiced, but insists that under the constitutional provisions of section 20, article 2, the state is required in capital cases at least two days before the case is called for trial to furnish the defendant with a list of witnesses that would be called in chief to prove the allegations in the indictment or information, together with their post office address.

This question has been before this court many times, and has been raised by the defense in different ways. In Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311, in the second paragraph of the syllabus the court stated:

“Section 20 of the Bill of Eights provides: ‘In all criminal prosecutions the accused shall have the right * * * to be heard by himself and counsel, and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses.7 Held, that it would be error to allow witnesses to testify against him in chief whose names have not been so furnished, if he seasonably asserts his constitutional right. But if he fails to object to going to trial on this ground, but announces ready for trial,, he cannot afterwards avail himself of this objection.; and the constitutional right given him by this section will be waived.”

The record in this case shows that the defendant announced ready for trial and went to trial without raising the question that the post-office address of Andrew Miller, a witness for the state, had been incorrectly given. When the defendant announced ready for trial, and the trial was begun without raising the objection, he waived this constitutional right as he had a right to do.

In McKee v. State, 38 Okla. Cr. 132, 259 Pac. 607, in the first paragraph of the syllabus the court said:

“Section 20, art. 2 of the state Constitution requires that in capital cases at least two days before the case is called for trial a defendant shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses. It is the duty of the prosecuting officer to comply with this provision of the Constitution, and it is error for a trial court to require a defendant to proceed to trial where this provision of the Constitution has not been complied with unless it has been waived.”

This court has often held that this provision of our Constitution should be construed in the reason and spirit of the' Constitution, and may be waived. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Franklin v. State, 9 Okla. Cr. 178, 131 Pac. 183; Pollock v. State, 26 Okla. Cr. 196, 223 Pac. 210.

Many cases are cited by the defendant in support of his contention that the court committed error in permitting Andrew Miller to testify over the objection of the defendant, for the reason that the post-office address of the witness was incorrectly stated. These cases have been carefully examined by the court, and they state good law when applied to the facts in the record in which the questions were raised, but in each of the eases they specifically state that it is error to permit the witness to testify, whose name has not been served on the defendant at least two days before being forced to trial, giving the name of the witness and his post-office address, unless the same has been waived. Ferguson v. State, 53 Okla. Cr. 317, 11 Pac. (2d) 211.

In this case it clearly appears that the defendant waived his constitutional right by announcing ready for trial, and not raising the question until the witness Miller was called to testify. Considering the facts stated in the record, the court did not err in permitting Andrew Miller to testify, over the objections of the defendant.

In this case the defendant was ably defended and his rights were properly protected by his attorneys, and he was fortunate indeed that the jury found him guilty of manslaughter in the first degree and fixed the punishment at ten years, as under the facts in the case hei might have been convicted of murder. Considering the defendant’s own testimony, he is guilty of manslaughter in the first degree, if not murder. He abandoned the difficulty in the street and went in to his home and got a pistol and came out and began shooting at Frank Cole, the father of the deceased.

The defendant was accorded a fair and impartial trial. There are no errors in the record warranting this court in reversing the case. After a careful consideration of all of the facts and circumstances surrounding the killing, the court does not feel it would be justified in modifying the judgment. The judgment of the trial court is affirmed.

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