author: DOYLE, J.

text:
    Ex parte C. W. COVELL.
    No. A-9422.
    Dec. 17, 1937.
    (74 P. 2d 626.)

      Hatcher & Bond, for petitioner.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Bob Shelton, Co. Atty., for respondent.
   DOYLE, J.

(after stating the case as above). This is an application for a writ of habeas corpus on the part of C. W. Covell. The petitioner is in the custody of the sheriff of Grady county, under commitment by a magistrate to answer for the crime of bribing a county officer.

To the petition there are attached as exhibits the complaint and a transcript of the testimony taken before the committing magistrate. Also order of the court sustaining demurrer to information previously filed in the district court, and order giving leave to file an amended information.

It was evidently the purpose of the complaint to charge a violation of section 1906 of the Penal Code 1931, 21 Okla. St. Ann. § 381, which makes it a felony for any person to corruptly give, offer-, or promise to any public officer “any gift or gratuity whatever, with intent to influence bis act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which then may be pending, or may by law come or be brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith.”

From the record it appears that:

George E. Hurst Avas the duly elected, qualified, and acting county clerk of Grady county from January 7, 1-933, to January 4, 1937.

He testified that in April or May, 1936, he talked to petitioner in the office of the county clerk about the purchase of a counter for the county clerk’s office, and talked with him three or four times later, when making up the budget for the year, and Avas trying to estimate what the counter would cost so as to include it in the county budget for the office of county clerk. They estimated the cost about $1,200, and he told petitioner he Avanted to give him the order and told him he wanted $200, plus a bill he oAved him, something over $100. In the month of July he gave him the order; that the claim was filed, signed, “Standard Printing & Office Supply, by O. W. Coveil,” and, while witness was still in office, the warrant issued, although the agreement was not to pay him for the counter until the same was delivered and set up; that the claim Avent before the Board of County Commissioners and was approved; that he left the warrant in the office with Mr. Nix, his successor.

He further testified: “At the time I gave him the order I didn’t receive any compensation for giving the order at that time, after that he paid me some money four different times on it, giving in all $42, and he told me be would charge off wbat I owed on my open account at that time”; that at the time be gave the order and made this deal with Mr. Covell be was acting in bis official capacity as county clerk of Grady county.

Mrs. F. C. Melton testified that she was bookkeeper for defendant, Covell, about two years. In February, 1937, he gave her this county warrant, signed: “George E. Hurst, county clerk, payable to Standard Printing Company. Prin. $1038.60 ints. $15.80, total $1039.40,” punched “paid 3-24-37 A. L. Melton Co. Tres.” to take to the Citizens-Farmers National Bank and have it cashed; that the cashier gave her a slip statement with the money showing $500, $200, $250, and $73.60, each in a separate package; that she returned with the money and gave it to Mr. Covell; that George E. Hurst carried an account with the Standard Printing & Office Supply Company, and shortly before she quit Mr. Covell directed her to charge it off, which she did.

Ted Warkington testified that he was engaged in the printing and stationery business, at Lawton, now known as the Southwestern Stationery & Bank Supply Company; that C. W. Covell told him that he had a prospect for a counter and he came to Chickasha and with Mr. Covell talked with County Clerk Hurst, who showed them the type of counter wanted, and how many units, and he had a blueprint made and sent to Mr. Covell; “later he ordered the counter from us as the agent of the Art Metal Construction Company”; that he received from Mr. Covell $670 and paid the same to the Art Metal Supply, less 2 per-cent, cash discount, and produced the check by which payment was made; that of the selling price $1,023.60, the local seller is supposed to get 36 per cent, of the same.

There was no testimony offered on the part of the defendant.

Counsel for petitioner argue that the evidence was not sufficient to show the commission of any offense, “since this appropriation out of which the counter was purchased was made in the budget for the general government fund for furniture and equipment, therefore the county clerk had no legal authority whatsoever in connection Avith said purchase. It was a matter that came solely before the county commissioners in their official capacity, section 1906, 21 Okla. St. Ann. § 381, and they could not delegate their authority.

“That the county clerk did not even have statutory authority to recommend the purchase, and since he did not have such authority, then petitioner, ;C. W. Covell, could not make him a gift or gratuity with the intent to influence any act, opinion, decision or judgment on the matter of purchasing this counter”—citing Allen v. State, 63 Okla. Cr. 16, 72 P. 2d 516, wherein this court held: “The term ‘bribe’ signifies any money, goods, right in action, property, thing of value, or advantage, present or prospective, or any promise or undertaking, asked, given, or accepted, with a corrupt intent to influence unlawfully the person to whom it is given, in his action, vote, or opinion, in any public or official capacity. Penal Code, St. 1931, § 1777, 21 Okla. St. Ann. § 97.”

In our opinion the argument made is not well founded.

In the case of Ex parte Winters, 10 Okla. Cr. 592, 140 Pac. 164, 51 L.R.A., N.S., 1087, this court held:

“A person who holds himself out as an officer under color of authority, and who solicits and accepts a bribe, has no right to defend and be discharged on the ground that, as a matter of law, he had no right to act as such officer.”

In the opinion it is said:

“Does a person who holds himself out as an officer under color of authority, and who solicits and accepts a bribe, and endeavors to and does corrupt other persons, have a right to defend and be discharged upon the contention that, as a matter of law, he had no right to act as such officer, therefore the accepting of a bribe was not a violation of the statute? * * *
“As said by this court in Ellington v. State, 7 Okla. Cr. 252, 123 P. 186, which was an embezzlement case wherein a guardian was prosecuted for embezzling moneys of his ward, and who attempted to defend on the ground that the money embezzled by him did not legally belong to his ward, therefore it was no crime for him to* embezzle it, that, ‘if he was agent enough to' collect this money, he was agent enough to be punished for its embezzlement.’ The same might be said of the petitioner; if he was officer enough to solicit and accept a bribe, he was also officer enough to be sent to the penitentiary for so doing. Corruption and debauchery are not tolerated in civilized communities. * * * In this position we are not wholly without support by the authorities.
“In State v. Duncan, 153 Ind. [318] 320, 54 N. E. [1066] 1067, the Supreme Court of Indiana, in considering a similar question, said:
“ ‘Bribery is an offense against public justice. The essence of it is the prostitution of a public trust, the betrayal of public interests, the debauchment of the public conscience. If one admits the doing of the things that produce these results, shall he escape by saying he had no right to act at all? It would seem passing strange if the consequences of one breach of law might be evaded by showing another.’ * * *
“The Supreme Court of Ohio, in State v. Gardner, 54 Ohio St. 24, 42 N. E. 999, 31 L.R.A. 660, promulgated a similar doctrine. In the Ohio case Gardner was prosecuted for offering a bribe to one purported to hold au office. His defense was that such office did not legally exist. The court held that he could not maintain any such defense.
“In Price v. State, 10 Okla. Cr. 427, 137 Pac. 736, we had under consideration a question involving the principle now under discussion. In that case Price was prosecuted for embezzling money as an attorney. He had moved from another state to Oklahoma, but had not been legally admitted to' the bar in Oklahoma. His defense was based on the contention that, not having been legally admitted to the bar, he could not be charged with embezzlement as a lawyer. In determining that question, we said:
“ ‘When a lawyer from another state moves into Oklahoma, and, without securing admission to the bar of this state, holds himself out to the public as a lawyer, accepts business as such, and embezzles money collected by him as a lawyer, he cannot escape punishment upon the ground that he was never legally admitted to the bar of Oklahoma.’ See, also, Florez v. State, 11 Tex. App. 102.”

The offense is all the more serious if the officer had no authority to act, because of the inducement to step beyond the line of his duty and to usurp authority not committed to him. State v. Ellis, 33 N.J.L. 102, 97 Am. Dec. 707.

The following text of 8 American Jurisprudence, page 895, § 15, is supported by numerous cases:

“The general rule seems to be that offering,- giving, soliciting, or accepting a bribe constitutes bribery where the one solicited, soliciting, or accepting, the bribe, though not an officer de jure, was acting under color of title to the office involved. In other words an officer de facto is punishable for accepting or soliciting a bribe in the same manner as if he were an officer de jure. Likewise it is a crime to offer or to give him a bribe.”

Any other rule would be a reproach to the law, for it would encourage official corruption and tend to subvert the honest administration of public affairs.

It follows from what has been said that the committing magistrate did not err in overruling the demurrer to the complaint and the demurrer to the evidence.

It is also contended that the order sustaining a demurrer to a previous information is a bar to further prosecution, in that the court failed to direct that a new information be filed, charging the same offense as provided by section 2952, St. 1931, 22 Okla. St. Ann. § 508.

The statute specifically provides that the judgment sustaining a demurrer to an information is not final where the court “direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

The order “That the state of Oklahoma is given leave to file an amended information” was sufficient to fulfill the requirement of the statute. No formal language constituting a specific direction to file a new information is required. Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18; Johnson v. Territory, 5 Okla. 695, 50 Pac. 90.

In Sellers v. State, 27 Okla. Cr. 245, 226 Pac. 109, this court held:

“Where a demurrer to an information is allowed, but no formal judgment is rendered setting the information aside and permission is given the county attorney to amend it at that time, such permission will be deemed equivalent to an order directing the county attorney to file a new information as amended, or an amended information, as the case may be.”

For the reasons stated, the application for the discharge of the petitioner will be denied. It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ORVILLE HENDERSON v. STATE.
    No. A-9382.
    Dec. 17, 1937.
    (74 P. 2d 623.)
    Matbers & -Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a purported appeal from the county court of Grady county, Okla., rendered on a verdict and judgment finding the defendant, Orville Henderson, guilty of transporting intoxicating liquor and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days.

The state appeared specially for the purpose of filing a motion to dismiss the purported appeal, and as grounds for its motion it states:

“As shown by the record said appeal was not perfected and filed in this court within the time required by section 3192, Okla. Stats. 1931 [22 Okla. St. Ann. § 1054.].”

Section 3192, O. S. 1931, 22 Okla. St. Ann. § 1054, in part is as follows:

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

The record shows that the defendant was convicted and sentenced on the 19th of June, 1937; and that on said date was granted 30 days within which to make and serve case-made; and on the 17th of July, 1937, was granted an additional 30 days’ extension to make and serve case-made. There was no time fixed in the order of extension fixing the date when the appeal should be filed in this court. The purported case-made was not filed in this court until August 31, 1937, which was more than 60 days from the date of judgment.

No response has been filed to the motion of the state to dismiss the purported appeal. The extension of time granted the defendant by the court to prepare and serve a case-made had expired. Where the record for an appeal is not filed in this court until the expiration of the time allowed by law for taking an- appeal, this court does not acquire jurisdiction and the purported appeal will be dismissed. Easterwood v. State, 38 Okla. Cr. 298, 260 Pac. 789.

The motion of the state to dismiss the purported appeal is sustained, and the appeal dismissed.


author: BAREFOOT, J.

text:
    DENNIS D. BRYANT v. STATE.
    No. A-9312.
    Dec. 17, 1937.
    (74 P. 2d 624.)

      Elmore Pinnick and M. Bristow, for plaintiff in error.
    Mac Q. Williamson, Atty. Gun., Sam H. Lattimore, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., for the State.
   BAREFOOT, J.

The defendant Avas tried and convicted in the district- court of Oklahoma county for the crime of robbery with firearms, and sentenced to serve a term of 25 years in the penitentiary, and has appealed.

It is the contention of defendant that the evidence was not sufficient to warrant a conviction, that the county attorney was permitted to ask leading- and suggestive questions, and that the defendant did not have a fair and impartial trial. All of these objections may be considered together.

The information and evidence on behalf of the state reveals that the defendant was charged jointly with two other parties with the crime of robbery with firearms, in Oklahoma City, Okla., on the 11th day of October, 1936.

A witness Avhose name was Leon McDonald testified that he Avas employed as a driver by the Oklahoma City Cab Company; that about 12:30 a. m., Sunday, October 11th, while driving north on Western avenue in Oklahoma •City, he Avas stopped by three parties, one of them got into his cab and had his hand in his pocket, and ordered him to wait until the other two returned. The other two parties went east toward 1008 West Sixth street, which was the scene of the robbery. In a very short time they returned, each one carrying in his hand a brown sack, wrapped in paper. One of these parties got in the back seat of his car, and the other in the front seat with him. The defendant was positively identified as being the party who got in the front seat, and he had a gpn in his hand, and he told the witness to drive on or “he would shoot his head off.” He afterwards directed the witness to go to 1006 West California street, and before getting there commanded him to drive down to Shartel, then south, then to Reno, and east to Lee, and down Lee to Noble, and east on Noble. The three parties got out of the car on Noble just west of Harvey. The gun carried by defendant was a six-shooter, .41 or .45 caliber. Defendant remarked “that he should have shot some fellow,” and once, when witness stopped at a stop line, defendant held the gun on him, and said, “Drive on, or I will shoot your damned head off.” The defendant had with him a sack which the witness identified as bottles. The. witness also described the clothes worn by defendant, and they compared favorably with the description given by other witnesses. The witness could identify defendant by having his lights on him as he came across the street and also by the lights from his car.

Lydia Hickman testified that she and her husband, A. P. Hickman, were living at 1008 West Sixth street, Apartment 4; the apartment house being rented by them and the apartments therein being subrented by other-tenants. At the time of the robbery, which occurred between 12:30 and 1 a. m., the witness, her husband, Mrs. Leo Smith, and Mrs. Woody, were in the apartment when defendant and another man entered the apartment, and with the aid of a gun held by defendant and a knife in the hands of the other man, held up and robbed the occupants of the apartment, taking from A. P. Hickman about $70 in money and checks, and also carried away some bottles of whiskey which were wrapped in paper like that exhibited by the state, and a string like that offered in evidence by the state. The robbers were in the apartment about 15 minutes. They wore m> masks. Witness further identified a picture of Foster, one of the parties named in the information with the defendant, as that of the second of the robbers.

The witness A. P. Hickman testified to the same effect. He positively identified the defendant. He described the gun as an old model gun being a .41 or .45 caliber Colt’s, which description corresponds to the testimony given by the witness McDonald. He also testified that when the parties- first entered the apartment and announced that “it was a stick-up” that he resisted and attempted to grab the gun from one of the parties, and that the other stabbed him in the back with a knife.

The witnesses Mrs. Leo Smith and Mrs. Woody testified to the same material facts, and positively identified the defendant as one of the robbers. Mrs. Woody testified that she was cut on the hand by one of the robbers while they were lining them up against the wall.

D. F. Brown, a police officer, made an investigation of the robbery. He went down to 1006 West California, the address given by McDonald as that to which the defendant had first directed him to drive; he watched the house. A man came out and the officers followed him. He broke a bottle of White Castle whisky. A part of the whisky taken from the apartment was White Castle. Witness- then went to 220 West Noble and to a room which had been occupied by Jack Foster, this being the same Foster charged with the defendant, and a picture of him had been identified as that of one of the robbers. Witness reached this room about 11 o’clock the morning after the robbery and found the defendant sleeping in the room. The officer was shown the paper previously exhibited to the witness Lydia Hickman and identified the same as paper he found lying in the room where defendant was apprehended. He also identified the string previously exhibited to Lydia Hickman as that which he found on the floor near the foot of the bed occupied by defendant. On cross-examination the witness testified that when he went to 1006 West California he was looking for Jack Foster and another man known as Jack (the name used by defendant). The witness learned Jack Foster’s address of 220 West Noble from the man wlm broke the bottle of whisky.

Two other police officers testified to seeing' the defendant, Jack Foster, and Chet Stone together about 9 or 10’clock on the evening preceding the robbery. The officers followed them into an alley, and on the approach of the officers one of them threw down and broke a bottle of whisky.

The defense of the defendant was what is known in law as an alibi. He testified that he went to a domino parlor of one Loring Miller a few minutes before 12 o’clock. This domino parlor was located some 20 blocks from the scene of the robbery, and that about 12:30 o’clock his brother, who drove a cab for the Y & Y Cab Company, came by and picked him and certain other parties up and took them to a dance hall several miles south and west of Oklahoma City, where they remained until about 3:30 a. m., when the brother returned and brought them back to the city. He then went to see a cousin and returned about 6 o’clock to where he was working, and, upon finding that some one had taken his place, he testified that he then went to the room of Jack Foster and went to bed, where he was found by the officers. He was corroborated by his brother and Loring Miller and other witnesses who claimed to hare seen him at the domino parlor between 12 and 1 o’clock. Some of the witnesses whom he claimed went to the dance hall with him were not called as witnesses. There were some minor discrepancies in the testimony of the witnesses of the defendant. On cross-examination, the defendant testified he had been convicted on two previous occasions for robbery with firearms and larceny of an automobile; the sentences running concurrently and being served in the penitentiary at McAlester. He thei*e got acquainted with the two parties who were charged jointly with him in this case. On cross-examination, his brother, Robert Lee Bryant, testified that he had pleaded guilty to the crime of larceny of an automobile, and received a suspended sentence.

The jury heard all this testimony, saw the witnesses on the stand, observed their demeanor. It was for them, to say whom they would believe or disbelieve. If there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion or prejudice. They were in a better position to pass upon the truth of witnesses’ statements than is an appellate court. They found the defendant guilty and assessed the punshment. Under the law and facts their verdict should not be set aside. Ingram v. State, 3 Okla. Cr. 634, 108 Pac. 552; Powell v. State, 11 Okla. Cr. 615, 150 Pac. 92; Queen v. State, 35 Okla. Cr. 412, 250 Pac. 935.

Defendant complains of the charge of the court in reference to the credibility of witnesses. No exception was taken to the charge, nor were any special instructions requested. We have examined this charge and we find no error therein. There is no merit in the contention that the county attorney was permitted to ask leading and suggestive questions. No exceptions were taken to1 any questions asked by the county attorney.

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

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


author: DAVENPORT, P. J.

text:
    JIM HAITHCOCK v. STATE.
    No. A-9279.
    Dec. 17. 1937.
    (74 P. 2d 641.)

      Toby Morris and Walter Hubbell, 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, Jim Haithcock, defendant in the trial court, was by information charged with the murder of Mrs. A. L. Jackson, on the 13th day of November, 1935, near the city of Walters, in Cotton county, Okla., by recklessly driving a Ford truck while under the influence of intoxicating liquor; was tried, convicted of manslaughter in the first degree, and sentenced to serve eight years in the state penitentiary. To reverse the judgment of the trial court Jim Haithcock preserved his record and has appealed to this court.

The substance of the testimony is that on November 13, 1935, about 9 o’clock a. m., the defendant left Walters, Okla., driving a Ford V8 truck, making deliveries and sales at Rush Springs, Marlow, Duncan, and Comanche, Okla. Between 11 o’clock a. m., and 6 p. m., the record shows the defendant drank the contents of six or seven bottles of 3.2 beer; about 6 o’clock p. m., the defendant reached Comanche, and -talked to Bob Patty about the collection of a bill in which Mr. Patty was interested; leaving there the record shows the defendant drove to Corum, a distance of about 8 miles, Avhere he had a conversation with C. W. Wilson and Carl Wilson, father and son, serviced his truck at the Wilson station, and defendant traveled west toward Walters, where the accident occurred about ten miles west of Corum and about two miles east of Walters. He collided with a Ford Y8 five-passenger touring car driven by a Mr. Caldwell; at the time of the collision the touring car was occupied by seven persons, two suitcases and a pair of crutches; that as a result of the collision Mrs. Jackson and the driver of the car died.

The proof further shows that the scene of the accident was about the center of an S curve on highway 70; this highway is paved, the slab being about 19 feet wide, and has a guard post every eight or ten feet sunken in the earth about four feet, and extending about four feet out of the ground, and threaded with two heavy cable wires, the fence being situated about 5% feet from the paving on either side of the slab. After the collision the car and truck stopped about 45 feet apart, the car was on the extreme south side of the highway, facing in an eastern direction with three wheels off the concrete. The truck was lying on its side on the extreme north side of the concrete having turned about where it struck the post in the guard fence on the north side of the highway. The post was knocked loose leaving an indenture near the top and a smear of yellow paint; the truck was painted yellow.

It is further shown that the truck was loaded with cases of beer and empty cases, which were thrown into the bar ditch. The left wheel of the truck was completely turn off by the impact.

The state insists that the defendant was drunk at the time of the collision, but only seeks to prove that his drunkenness was caused from beer. The first witness testifying1 for the state was Henderson Harris, who states at 12 o’clock noon, before the collision in the evening, the defendant was at the Elks Club in Duncan, and drank the contents of a 12-ounce bottle of beer. Ed Cheves, a resident of Duncan, saw the defendant at his place of business, where the defendant drank the contents of a 12-ounce bottlé of 3.2 beer about 4 or 5 o’clock in the afternoon.

Mr. A. C. Atterberry, a witness for the state, stated:

“I work at the Brown Derby, in Duncan, which was at the time known as the Silvermoon Becreation Parlor: the defendant was at this place of business and drank the contents of a 12 ounce bottle'of beer between four and five o’clock in the afternoon.”

Clyde Stanley also testified he saw the defendant drink a bottle of Schlitz beer about 5 o’clock in the afternoon prior to the accident. On cross-examination Stanley stated as far as he could tell the defendant was sober: he could not say he was under the influence of intoxicating liquor. The defendant came to his place of business to try to sell him some beer, the defendant being a driver for a wholesale company that was selling beer in that locality.

Helen Sutherland stated she worked at a place about six miles south of Duncan, between Duncan and Comanche, on the highway; defendant was at their place of business between 4 and 5 o’clock; she sold him a sandwich and beer, that the defendant drank the contents of a bottle of Old Style Lager beer; she remembered the kind because he called for Waldorf and she did not have it. A Mr. Ferguson was there in the place and was discussing the accident Mark Izzard had, and the defendant spoke up and said he was 100 per cent, for Izzard. Witness then admitted she had previously known Mrs. Jackson who was killed in the wreck but had not seen her for many years. Being further examined by counsel for the defendant the witness stated it was the manner in which the defendant said things that caused her to believe he was under the influence of intoxicating liquor; that he was butting into other people’s conversation and kept repeating things.

Paul Mason, testifying for the state, testified:

“I live at Comanche; on the 13th day of November, 1935, I was working at the Prince Cafe; the defendant was in the cafe and drank a can of Old Style Lager beer, and he appeared to be under the influence of intoxicating liquor; he was very talkative, his eyes were red, and he staggered when he started to leave the cafe.” On cross-examination witness stated he did not talk to the defendant, just saw him.

C. W. Wilson testified he lived at Corum, Okla., and was operating a store on November 13, 1935:

“The defendant was at my place of business the day the accident occurred. I saw him about seven or eight o’clock in the evening; defendant stopped his truck at my place and I had a conversation with him over the question as to whether or not the defendant was able to drive his truck; he had his truck serviced and I believe had his oil changed. In reply to my question, £Are you able to go ahead?’ he laughed and stated, ‘Why of course I can.’ ”

Witness said he thought the defendant was intoxicated was why he asked him.

“The defendant talked loud, I did not smell anything on the defendant. I do not believe the defendant staggered.” He was talkative but was always talking in his place of business. On cross-examination witness stated tbe defendant was intoxicated to some extent; that he thought the defendant was under the influence of intoxicating liquor, but he drove away in the proper manner.

Art L. Jackson, testifying for the state, stated:

“I was in Cotton County on November 13, 1935; I had been to Davidson, my wife was with me; we left Davidson coming this way about 4:35 in the afternoon; in the car with me was John Caldwell, my brother-in-law; Douglas and Kenneth Simmons, my wife, Pearl Caldwell, and Albert Caldwell, and Grandma Simmons; seven of us in the car; we were driving a Ford V8, two door sedan; John Caldwell was driving about 35 miles an hour; John Caldwell was my wife’s brother; when he left Davidson we started to Shawnee, my home; we expected to stop at Grandma Simmons’ at Comanche; we came through Walters around seven o’clock and drove out on Highway No. 70; I don’t think we went over 35 miles from Davidson to Walters; Mr. Simmons and his wife had been in a wreck just three weeks before and he had his crutches with him, and every time we went over a rough place he would hollow and say, 'Oh!’ and we were not driving fast on that account.
“Mr. Simmons was in the front seat on the right hand side, the little Simmons boy was in the middle, and John Caldwell was driving. In the back seat of the car was my wife, I was next to her, and Mrs. Simmons on the right of me, with the little boy Albert sitting on my lap; he was four years old; the boy in the front was about 12. Just as we were on the bridge or just off it I noticed car lights; I did not pay much attention except I could see the lights coming from the east on the curve of the next bridge; I could not tell how far it was up there; there is a little curve and then the road straightens out, and just as that straightened out the truck hit us.
“Whenever I noticed him he was in the middle of the road; just before the truck hit us, our car pulled to the right and I felt our right wheels leave the edge of the pavement and hit the shoulder; there were posts on that pavement I judge about six feet, the truck looked like it was in the center of the road and our driver was trying to dodge him just before the collision. There were two killed, my wife and my brother-in-law; there were five others hurt in the collision; we were all taken to the Thompson hospital. I crawled out through a torn place in the car and pulled my wife out and laid her on the ground, and saw the hulk of a man standing away from the truck — looked to he about 10 or 15 feet — just as I saw him he started to move and I hollowed at him to stop, told him he had killed all my family; he stopped and I walked up toward him, did not get very close to him; I took my wife’s head in my arm, and he was going up the road again and I hollowed, ‘Please do not run off, I have to have some help,’ I said, ‘What is the matter with you,’ and he said, ‘There is nothing the matter with me.’ There was a car coming from the east and I flagged it, and while I was doing that he disappeared. My wife died from the injuries received in this accident.
“After the accident our car was still on the right side of the road, with two hind wheels still off the pavement, and the truck was turned over on its side on the north side of the road, and turned back east. I cannot tell definitely how far the truck was from the car when they stopped; it looked like two lengths of the truck; I flagged the first car coming from the west, I did not know who they were, the first car turned around and came back and called an ambulance and I got help after that. I stayed in the hospital seven or eight days.”

On cross-examination witness stated:

“It did not seem to me like Mr. Caldwell speeded up any after we reached the pavement, I wasn’t in a position to see the speedometer; would have had to have raised up and looked over to have seen it. When we crossed Cash Creek bridge the road makes a kind of a little S curve, and then straightens out; the light would naturally shine to the side of the road toward the woods. The road curves and crosses around to the south and then across another small viaduct; yes, sir, we were over on the bridge or just west of it, I won’t say for sure, when the lights of the truck showed up the road some place between the center and somewhere to the edge of the bridge when I saw the track lights; we did not run off the pavement as we come around the ,S curve, our car run off the pavement just before the truck hit us, just off the curve. Our car was facing up right, I don’t know whether the road runs east or not; we had two., wheels off the pavement when the track hit us; my judgment is the truck was traveling at a terrific rate of speed; the truck hit our left front fender and it seemed to me the truck shoved our car back just a little; instead of pushing it back it just seemed to mash us down; our car did not go into the fence. When I left the scene of the accident the car was facing east like it was when the truck hit us; I did not pay much attention whether the back end was pushed around or not; I don’t know what happened after I left the scene of the accident; when I first saw the truck I could not tell exactly where it was, whether it was up in the center of the road, the closer I come the more I could tell about it. I could not tell how far away the truck was, it appeared to me that Mr. Caldwell drove up across the pavement and the truck came over across the road and hit our car; that truck was a Ford Y8,1 saw an Old Style Lager Beer sign on it; when I noticed the defendant he was standing in the road; I don’t know when he left, he just disappeared; I did not see him running.”

B. W. Russell was a witness for the state and stated:

“I live at Walters, Oklahoma; was living there on November 13, 1935; the evening the collision occurred T was going east to Hulin, I should judge around seven o’clock in the evening; I was at the scene of the accident shortly after it occurred; before I got to the scene of the accident I saw someone running; I don’t know who it was; he was probably 100 yards from the truck when I met him; I was west of the truck and the man was running west toward Walters, just off the concrete slab; I do not remember his hat or the kind of clothes he wore; he was tall and a thin man the best I could tell.”

Or cross-examination lie stated be just noticed somebody running, “I thought I was going to be hi-jacked.”

J. B. Thorne worked at the Stimpson-Chevrolet in Walters, Okla., on the 13th day of November, 1935:

“At the request of the county attorney I examined the tires of the truck atíd the car after the two vehicles were brought to the garage; I do not remember just when I examined them but it was within a reasonable length of time after the accident. There were some marks on the tires of the truck to the effect that they skidded sideways, they seem to have drug as you drag a tire, I would not say they were straight across, either as the truck turned over on the side they skidded — there were some marks on the front wheel, they seemed to be going more than cross ways on the gravel, these marks extending up the side walls some; I could not say as to whether or not the inside wheel on the truck appeared to be worn in the same manner as the outside tire; one of the front wheel tires was completely blown out and considerably used. Off hand I would say the truck weighed around 4500 pounds; when the wrecker was sent out to bring the truck in the truck was there on its side, it had not been set up when I got there; the skidding marks on the tires could have been made when the truck was raised up; it couldn’t be raised without making some marks; when the truck was turned over the skids could have made those marks at that time. You can skid a tire without showing any appreciable marks — a reasonable skid we will say depends on the tires— I have seen them skid and not see any signs of damage; I would not say the marks were not made by the skidding of the car; I did not see any.”

Gettie Johnson, testifying for the state, stated:

“On the evening of the accident the defendant, accompanied by his brother Riley Haithcock, was in my restaurant”; that the defendant drank two cups of coffee, and probably a little more.

Mrs. M. C. Graham testified:

“I was in Walters the nigbt of the accident; the defendant came to where I was some time after the accident and drank two cups of coffee, and probably a little more; the defendant was not intoxicated; had no appearance whatever of being intoxicated at that time; I did not smell any odor of whisky on his breath; he appeared to be dazed from his injury but he was not drunk.”

On cross-examination witness stated:

“I do not know what caused him to be dazed, I suppose the lick on his head caused that; if I had a lick like that on my head I would be crazy too.”

Tom Christian testified he made pictures at the scene of the accident the next day or shortly after the accident, also the car and truck, which pictures were introduced in evidence. The pictures were made somewhere down around the garage where the vehicles had been taken after the accident; witness was not positive as to the time he made the pictures. Witness was questioned at length as to when and where the pictures were made, and stated he did not see the truck or car before they were moved. The accident occurred about two miles from Walters. Witness was then examined at length as to the injury to the post at the scene of the accident, as to the marks on the pavement, and the distance the marks were relative to the position of the truck.

A. T. Bull stated he lived east of Walters about 2% miles:

“I was down at the scene of the accident on the 13th day of November, 1935; when I saw the truck it was on the right side facing east, the bulk of the load fell over north, it did not all fall out of the truck.”

Witness was examined as to the condition of the slab, the marks on the pavement, and the general appearance of the road where the accident occurred, and stated:

“The truck was lying on the right side, the left front wheel was off, and as that turned the truck off at a certain point all the weight was on the tires sideways as you turned it up; the post near the truck had yellow paint on it.”

L. C. Henderson testifying for the state stated he was sheriff on the 13th day of November, 1935:

“The day the accident was reported to me, it was after dark a little bit, probably 9 o’clock, I can’t say exactly what time; I saw the defendant in front of Dr. Harned’s Drug Store; I am quite sure he had been to Dr. Jones’ office, I think he told me he had been to the Doctor’s office.
“The county attorney talked with Mr. Haithcock in my office that evening; it must have been a couple of hours after the accident; I smelled the defendant’s breath, it smelled a little bit like he had been drinking beer; I would say he had a drink of something, I think he said he had a bottle of 3.2 beer; before the defendant was engaged in the conversation I think he was advised of his constitutional rights; I don’t know, don’t remember whether he was or not, or the conversation, Floyd, you do that so frequently I do not remember you omitting it. I feel quite sure he was. The best of my recollection is the defendant did not know how the accident happened, it was done before he knew what had happened, that is the best of my memory, I don’t remember his words.”

On cross-examination the sheriff stated:

“At the time the county attorney was talking to the defendant he appeared to be somewhat in a dazed condition; he had an injury on his head; he talked freely; I realized he was in kind of an excited condition.”

Claud Heron, testifying for the state, stated he examined the car and truck at the Chevrolet garage:

“I also made observation of the road regarding the markings on the concrete where the accident occurred; the line of the fence along side the road is about five or fire and one-half feet; I noticed on the concrete the next morning where rubber has been skidded or burned on the concrete; the rubber marks were passing the east end of the bridge about three feet, about in the center of the concrete, a little bit to the north, the approximate length was about 23 feet.”

A plat was presented to the witness, and Avitness examined the same:

“It would be about four or four and one-half feet from the west edge of the north burn to the north side of the pavement from the rubber marks.”

On cross-examination witness stated the skids shown on the pavement and burned places on the north side of the road Avere practically straight for about 23 feet:

“We measured it in the presence of everybody. The one on the other side went in a southwestern direction, we measured that by actual measure, it was 25 feet and angled some.”

Witness then tells about there being a post on the north side of the road struck by the truck, which left some paint the color the truck was painted on it.

J. M. Thompson, testifying for the state, stated:

“I live in Walters, oAvn and operate the Thompson Hospital; was operating it on the 13th day of November, 1935; I treated a number of parties on that evening; Mrs. A. L. Jackson was one of them, and a Mr. Caldwell.”

The defendant demurred to the evidence offered on the part of the state for the reason that the same wholly failed to prove facts sufficient to constitute and prove the commission of the offense charged, or any offense on the part of the defendant against the laws of the state of Oklahoma, and more especially fails to prove the offense for which he is charged in the information. The demurrer was overruled and exceptions reserved.

C. T. Smith, testifying for the defendant, stated:

“My name is C. T. Smith,- I live at Rush Springs, Oklahoma; am in the cafe business; know the defendant, saw him in my cafe the day prior to the accident that evening; it was about noon and he was sober.”

On cross-examination witness stated:

“It was somewhere near noon, I am not sure exactly what time it was.”

Carl Wilson, testifying for the defendant, stated:

“My name is Carl Wilson; I live 11 miles east and one mile north at Corum, Okla.; I was operating a filling station and working there on November 13, 1935; I know Jim Haithcock, he was at my station some time that evening before the accident, around eight o’clock, I imagine. He bought gasoline and I serviced his truck for him, I may have put in some oil, I don’t remember; he drove up to the station in an orderly manner and drove away in the same manner; there was nothing unusual about his actions, he often stopped at my station and serviced his car; he stopped at the proper place to get bronze gas, the kind he usually used. He was there about 10 minutes and seemed tO' be perfectly normal. If he was under the influence of intoxicating liquor I did not see anything to indicate it; I think he was sober on that occasion.”

On cross-examination witness stated defendant got out of his truck and went into his place of business where his father was:

“I ivatched him as he came into the station tO' have his truck serviced, which is the custom for me; I heard no loud talking while I was servicing the car.”

M. A. Jones, testifying for the state, stated:

“My name is M. A. Jones, I am a practicing physician and surgeon; I reside in Walters, Oklahoma; know the defendant Jim Haithcock; he came to my office on the 13th of November, 1935, I couldn’t state the hour; he had a wound in the top of his head about two and one-half inches long, it was a laceration of the scalp that went clear through to the skull; the skull at that point is about one-eighth of an inch thick; the injury would indicate a rather pronounced blow; he had some blood on his face and hair like he might have bled; I closed the wound with stasis, that is what we usually call stitches, used in place of stitches, I put four in to close this wound; when I was treating this wound he was in the surgical chair; I was in front of him, I will show you — all right— his face was closer to mine than yours is; part of the time I was treating, him his face was probably as close as five or six inches; I did not detect any intoxicating liquor of any kind on his breath; there was nothing occurred while he was in the office that indicated he was under the influence of intoxicating liquor. Considering the injury the defendant had I wouldn’t have been surprised if he had been out of his mind. About 13 per cent, of human being is blood; it takes about three per cent, alcohol to produce a state of intoxication; the alcohol is eliminated through the skin, through the urine, and by perspiration through the skin; when I talk of smelling intoxicating liquor on a fellow’s breath that is because it is leaving his system. I believe the deputy sheriff brought the defendant to my office. My recollection is there was two men along with him, could not say who they were,.could not be positive as to a deputy sheriff, that is my impression, it has been quite a while ago.”

On redirect examination witness states he has been practicing in Walters since 1902.

Lucy B. Leonard, testifying for the defendant, stated :

“I live in Duncan, Oklahoma; I remember the accident on-the 13th of November, 1935, in which the defendant was; I saw the defendant on the- day prior to the

accident that evening some time in the afternoon; the defendant was sober at the time.”

On cross-examination witness stated she did not remember just what time “but I think it ivas later than twelve o’clock.”

The defendant, testifying in his own behalf, stated:

“I am 37 years of age, work for the Cotton County Wholesale Grocer Company; prior to the time the company began handling 3.2 beer I delivered groceries for it. We work all the territory close around; I hauled beer from St. Louis. I never had an accident prior to the accident in this case, which occurred on November 13, 1935. The day of the accident I left Walters at nine o’clock for Rush Springs, driving a Ford Y8 truck, wheel base 131 inches; I stopped at the G & M Cafe, Comanche; Mrs. Mcllvain was in the restaurant; when I left Walters I had about 2,500 to 3,000 pounds of beer; the truck weighed about 4,500 pounds; I then drove to Duncan and stopped at the Elks Club.”

The defendant discussed in detail the route he traveled the day of the accident in the evening and admits a number of places on the route he drank the contents of a bottle of 3.2 beer.

The defendant tells the number of business men he called on during the day, and admits he stopped at Corum, 8 miles from Comanche, during his return trip, and Carl Wilson serviced his car. The defendant stated Corum is about 12 miles from Walters and 10 miles from Corum to where the accident occurred:

“I drove from Corum in a careful manner, I met some cars on the highway and passed some; I had. my lights on. When I first saw the lights on the car that I had the collision with I was on the viaduct beyond the Cash Creek bridge, not very far; at the time I was driving about 35 miles per hour, the speed limit of the truck; the lights I saw when I was on the viaduct were up and west, I don’t know just how far away; they were bright and I watched my side of the road and kept driving, I never did see the car, I was looking at the road, and kept on my side of it; all I remember something hit, the next thing I remember I was up town at Mrs. Brummett’s; I do not recall anything that occurred from the time of the crash until I was at Brummett’s; I do not recall talking to Mr. Jackson; I don’t know how I got to town; I do not know who all was at Brummett’s; I had never met Mrs. Graham before, I can hardly recall being at the Doctor’s office. I drank coffee in the cafe; I don’t know who was with me; I do not know who took me to the sheriff’s office; I kindly like a dream remember being down to the courthouse; I do not know when I was down at the courthouse; I think I went home and was in bed until .Saturday some time, I came down Saturday and went to jail.”

On cross-examination the defendant stated:

“The doctor did not send me to the hospital; I remember very little after the collision; the first thing I remember is being up at the house; I don’t remember running up the highway, or getting out of breath; at the time I lived at Mrs. Jones’ about a block and a half from the wholesale house; I don’t know why I did not go home instead of stopping at Mrs. Brummett’s; I did not try to sober up before the officers saw me for the reason I was not drunk, I wasn’t even intoxicated; I drank a bottle of 3.2 beer about 11 o’clock at the Elks Club; T was not drinking as fast as I could hold it, it has no effect on me.”

Several pages are taken up by the state as to the number of bottles of beer the defendant drank during the day, and defendant admits he drank several bottles of beer during the day from 11 o’clock in the morning until some time in the evening. The record shows he had driven about 10 miles from Corum without stopping to the place where the collision occurred.

“I arrived at Comm about 6:22 or 6:25; remember talking to Mr. Wilson and what he said, and I thought he was kidding; I knew I could drive the truck safely, I was not getting drunk, was not intoxicated at all. I drove about 30 to 35 miles; I did not see the car I had the collision with at any time, I remember seeing the lights when I was on the viaduct, which is a distance of 30 or 40 steps from where the collision occurred. Yes, I saw the lights on the car just preceding the collision; after I saw the light I just noticed my side of the road; I did not fail to make the turn on the curve and run into the parties that were injured. I don’t know how the accident happened, I imagine they would have to be on the north side of the road, I am not attempting to say they were; I do not remember hearing the bottles click when I turned over; I do not remember how I got out of the truck and do not remember talking to Mr. Jackson; do not remember going toward Mr. Jackson’s car or telling him to hail a car that was coming by; I do not remember anything after the collision; I was wearing a cap at the time that was left at the wreck, the cap is at the wholesale house and has a hole in it. The woman might have given me coffee that night, I remember drinking some coffee; I remember something about being in the courthouse; I do not know that I could tell just when I left Walters. I ate dinner at Mar-low between 11 and 12 o’clock.”

C. T. Timpson, testifying for the state, stated:

“My name is C. T. Timpson; I live at Walters, I am in the Chevrolet business, principally parts; on the 13th day of November, 1935, I went to the scene of the accident, I cannot say what time I was there, but before the car and truck was taken away; the truck was on the north side facing east, I would say right at the edge of the curve; the car was setting east on the south side four or five feet to the east of the truck, three wheels of the car were on the concrete slab, two' front wheels and the rear left wheel; the vehicles were removed to my place of business; I went out the next morning between nine and 10 o’clock and investigated and saw where the car and truck were lying, etc. I saw a post on the north side that had been struck by the truck, 1 think it was the third post from the west end.”

On cross-examination witness stated:.

"I could not state what part of thé truck struck the post but it was possibly some metal that struck it, possibly the end of the body, the steel support that comes down in the truck, it would be my judgment that some part of the truck made the mark.”

The witness said the left front wheel of the truck was completely off.

Allen West, on redirect examination, stated:

“I live at Walters, and sell Ford products. My motor company sold the Ford truck that was in the collision to the Cotton County Wholesale Grocers; the statement you hand me is a carbon copy of the original statement, duplicate copy of the statement of the sale of this truck.”

R. L. Patty Avas recalled and testified for the defendant that he saw the defendant on the evening of the accident, and before it occurred, about 6 or 6:30 in the afternoon:

“I talked with him at my store, he was there about five minutes, he was not intoxicated.”

A. G. Jackson stated he lived at 110 South Fifth street, Walters, Okla.:

“As a mechanic I examined the wheels and tires of the truck; the left front wheel was off. I removed the tire from it; at the time I took the tire off I observed something that indicated a skid, I don’t know what caused it; the tire is in the same condition practically that it was when I examined it.”

On cross-examination be stated he did not know whose possession it had been in since the accident; he bought the paint for Mr. Gilliland to put the markings on the tire; the tire was taken off the wheel to save it for further use.

H. C. Chrisman, testifying for the defendant, stated:

“I live in Oklahoma City; I work for Clint Morrison’s Service Station; it is a general repair shop; my business is to appraise and estimate automobiles for the company; I have to know automobiles, their general construction; I made a report on this wreck to the State Highway Commission. I made an examination of the truck at the request of Mr. Sass to see whether or not it was worth repairing; while examining the truck I took measures of the highway where the accident occurred with a standard steel tape; I observed some marks on the pavement partly erased by the rain or something; there were slight skid marks remaining; there is a little kind of a ridge at the edge of the pavement, it was scraped some 15 or 20 feet down; the black line shown is about six inches of curbing on the edge of the highway, just a slight slope; there was a dent on the third post on this side, indications showed about one-fourth or one-half inch at top; I found some yellow paint; the width of the pavement at the place where the collision occurred is 19 feet six inches, the curb cannot be traveled there. About 15 feet down along this line and on the edge over here and toward the edge of the pavement there is a little kind of a ridge, it was scraped some 15 or 20 feet on down.”

Witness then described the distance and measurements he made at the scene of the accident, and gave in detail the location of the wheels, the skidding and where the vehicles landed after the accident.

Witness was cross-examined at length as to' why he came down to Walters, and who was going to pay him for it. Most of the cross-examination was immaterial, and does not tend to establish any facts in the case.

J. D. Simmons, called in rebuttal, stated:

“I live four miles southwest of Comanche, in Stephens county; I came to Walters on November 13, 1935, traveling in a car; I was riding in the front seat of the car with Mr. Caldwell who was driving. At the time immediately preceding the collision we ran off the south side of the highway.”

The foregoing is, in substance, the testimony of both the state and the defendant.

The defendant has assigned nine errors which he considers sufficient to justify this court in reversing his case. The first assignment is the court erred in overruling plaintiff in error’s motion for a new trial.

The defendant contends that the record discloses that he was not to blame for the accident; that his guilt or innocence depends upon whether or not the defendant made both of the skids or rubber burns on the road as testified to by the witnesses; that the location, width and length of these marks are admitted by both the state and the defense. These marks were photographed in the presence of the defendant’s attorney, the county attorney, and others. In connection with the marks, the state contends that the accident occurred on the highway where the car was found immediately thereafter; the witness A. L. Jackson testifying that the car was off the pavement and the truck came across from the north side of the road at a terrific rate of speed and crashed into the car which after the accident Avas at the same place as when struck. The state further contends that the truck made both of the skids or rubber burns upon the paving. All of the testimony, including the markings of the skids, the photographs of the scene of the accident, the car and the truck, was admitted in evidence to the jury.

The defendant argues that it would be physically impossible for the truck he was driving to have made both marks on the highway. The defendant was alone and driving the truck, and as between the defendant and A. L. Jackson, the defendant being in a better position to know the facts, the defendant urges his testimony is corroborated by the physical facts. The state in its brief insists that the defendant Avas under the influence'of intoxicating liquor and when the accident occurred he was rounding a curve on the inside, and that he Avas so intoxicated and was driving at such a rate of speed that he was unable to control his truck; that his truck was on the wrong side of the road making the curve and collided with the car in which the deceased, A. L. Jackson, and others were driving. The state further contends that the testimony conclusively shows that during the day and just prior to the collision the defendant had drunk 10 or more bottles of 3.2 beer, and at the time of the collision he was intoxicated, was driving at a careless and reckless speed on the highAvay, amounting to culpable disregard of the rights and safety of others, thereby causing the death of another.

The motion of the defendant for a neAV trial includes all the other assignments of error complained of by the defendant. The defendant complains the court committed prejudicial error in the trial of his case by permitting Jerome Sullivan, an attorney, to appear in his case as a special prosecutor, and argues at length that Mr. Sullivan had been attorney for plaintiff in some suits brought against the owners of the truck for whom the defendanl, was driving at the time of the accident. This complaint is without merit. By permission of the court the attorney had a perfect right to appear and assist the county attorney in the prosecution. It Avas not error for Mr. Sullivan to appear.

The defendant argues further that the verdict of the jury is contrary to and in disregard to the court’s instructions; that the punishment fixed by the jury is excessive, appearing- to have been the result of bias or prejudice; that the verdict is not supported by the law and the evidence.

An examination of the record fails to disclose that the jury failed to regard the court’s instructions. The court in its instructions advised the jury as to the law applicable to the facts introduced in evidence before it, and the verdict of the jury finding the defendant guilty of manslaughter in the first degree, and assessing his punishment at eight years, does not show that the jury disregarded the instructions of the court but reached its verdict after having considered the instructions of the court on murder, and manslaughter in the first and second degree.

The defendant further complains that the verdict of the jury is excessive, appearing to have been the result of bias and prejudice. There is nothing in the record to shoAV there was any bias or prejudice in the minds of the jury when it returned the verdict. The defendant argues that the verdict of the jury is not supported by the evidence, and is contrary to the law and the evidence. With this contention we cannot agree. The defendant was placed upon trial on a charge of murder alleged to have been committed while under the influence of intoxicating liquor, and while driving at a careless and reckless rate of speed upon the highway. The facts show that this defendant was driving for his employers, from town to town, delivering merchandise to customers of his employers; that in the evening he was returning to his home, driving the truck partly loaded with 3.2 beer and partly empty cases and bottles. The defendant denies he was intoxicated, or under the influence of intoxicating liquor, but admits lie started out about 9 o’clock that morning, and up until the time of the accident he had drunk 12 bottles of beer. As the defendant was returning home he stopped at a filling station to have his truck serviced, and while his truck was being serviced he went into the station room and as he came out the father of the young man who was servicing his car asked him if he thought he was able to drive home, and he answered him saying, yes. The defendant says he thought the party was joking him and did not realize the party who testified in the case was in earnest.

The defendant in his testimony shows that just before the collision occurred he saw the light of the car coming meeting him, that he paid no attention to it, and was just looking ahead watching his side of the road when he rounded the curve and the collision occurred. The defendant further says that from the time of the collision until some time later in the evening up in town he did not know what happened. He did not know how he got to town, whether he ran or walked. One of the parties riding in the car1 where the accident occurred that killed Mrs. Jackson and injured others stated he saw a fellow coming toward the car and called to him to come and help, that some of the parties were killed, and that he turned and went the other way. Another party testifying for the state claims that immediately after the collision he met a party running toward town, but he did not know who it was.

Mr. Jackson, a witness for the state, who was riding in the car with his wife, who was killed, states they were driving at the proper rate of speed, and that the right-hand car wheels were off the slab at the time the truck struck the car in which Mrs. Jackson was riding.

Several parties testified to the marks on the pavement. The defendant insists that the truck and car came together in the center of the pavement, and the state insists they did not. It is perfectly apparent from the record and the condition of the car in which Mrs. Jackson was riding at the time of the collision that caused her death that the car could not have been where it was located after the accident for the reason that the evidence shows that the impact of the car and truck were such that the truck was knocked backward and completely turned over on its side off the slab and against the guard posts, and the car was standing with two of its wheels on the slab badly crushed, and the other two on the shoulder. If the car had been where the witness stated it was at the time it was struck by the truck, as heavy as the proof shows this truck to be, the car would have either turned over or have been knocked or forced back a considerable distance. The physical facts in this case clearly show that the driver of the car in which Mrs. Jackson was riding when she received the injury that caused her death was rounding a curve, and that the truck driven by the defendant was also rounding a curve, the car being on the outside of the curve, and when in making the curve the truck did not keep on its side of the road, neither did the car. That the defendant in this case by his own admission was not paying attention after he had seen the car light and the two vehicles came together in the center of the highway, resulting in the death of Mrs. Jackson, and injuring others.

It is perfectly clear from the evidence that the defendant was intoxicated to such an extent that he was driving in a careless and reckless manner upon the highway endangering the life of Mrs. Jackson and having an utter disregard for the safety of those who might be on the highway.

There is a conflict in the evidence as to the speed the defendant was driving, and as to the point on the highway where the vehicles came together. The defendant very earnestly and forcibly argues that the testimony is not sufficient to sustain the conviction. The jury heard all the testimony, saw the witnesses on the stand and observed their demeanor. It was for the jury to say whom they would believe or disbelieve. It is evident from the verdict returned the jury did not believe the defendant was testifying to the truth, and by its verdict harmonized the conflict in the evidence between the state and the defendant and decided against the defendant and returned a verdict of guilty of manslaughter in the first degree, fixing his punishment at eight years in the penitentiary. The question of the sufficiency of the evidence has been before this court many times and the court has universally held that where there is any competent evidence which reasonably sustains the verdict of the jury a conviction will not be reversed although the evidence may be conflicting or different inferences may be drawn from it.

Section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068, is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

The weight of the evidence clearly shows an utter disregard for human life by the defendant, and that he did not drive with care and caution, nor did he try to control Ms car or respect the rights of others on the highways of the state; that he was driving in a fast and reckless manner endangering the lives of others.

The jury is the exclusive judge of the weight of the evidence, and if there is such a conflict that different inferences can properly be drawn from it, the jury’s determination will not be interfered with unless it is clearly against the weight of the evidence or it appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. 2d 37; Holford v. State, 57 Okla. Cr. 431, 48 Pac. 2d 1082; A. G. Goodnight v. State, 62 Okla. Cr. 382, 71 Pac. 2d 789; John Coppage v. State, 62 Okla. Cr. 325, 71 Pac. 2d 509; and John Williams v. State, 63 Okla. Cr. 234, 74 Pac. 2d 632.

There is nothing in the record to show that the verdict of the jury is against the weight of the evidence, nor does the record show the jury was influenced by passion or prejudice.

After carefully examining and studying the evidence we hold the evidence is sufficient to sustain the judgment. The instructions given by the court on its own motion are the usual instructions given in cases where the defendant is charged with murder, and they correctly state the law applicable to the facts, and are as favorable to the defendant as the evidence in the case will warrant. The court did not err in refusing requested instructions, if the law covered by the requested instructions is fully and fairly covered by the court’s general instructions. Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

The defendant complains of other errors committed by the trial court. An examination of the record discloses that the other errors complained of are without sufficient merit to require a separate discussion in this opinion. The facts in the case show that the defendant willfully, carelessly and negligently, and while under the influence of intoxicating liquor, drove his truck at an excessive rate of speed on the highway, and while rounding a curve, disregarding the rights of the public, and endangering not only the life of the woman killed, but all others that might be on the highway at the time, and showed an utter disregard for all the rules of the road and the laws of the state.

In this case the jury took a very liberal view of the facts and returned its verdict of guilty of manslaughter in the first degree, and imposed a penitentiary sentence of eight year-s upon the defendant.

The defendant was properly and fairly tried. The instructions of the court substantially covered all the law as applied to the facts in the case. The evidence is amply sufficient to sustain the judgment. Finding no errors in the record to justify this court in setting aside the verdict and granting a new trial, the judgment of the trial court is affirmed.

2>OYLE and BAREFOOT, JJ., concur.


text:
    E. R. STARR v. STATE.
    No. A-9295.
    Dec. 23, 1937.
    (74 P. 2d 1174.)

      Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The information in this case charges that on the 27th day of January, 1936, E. R. Starr and Clifford Smith, in the county of Custer, state of Oklahoma, committed the crime of burglary in the second degree. The defendants were jointly tried; a. demurrer was sustained to the state’s evidence as to Clifford Smith. Defendant Starr was convicted and sentenced to serve a term of two years in the state penitentiary. The record was properly preserved, and the defendant has appealed to this court.

The state, in order to maintain its allegations in the information called James Pfeiffer, who in substance testified :

“I live two and one-half miles northwest of Thomas, Okla.; was living there last January. I had some kaffir corn stored in my granary; the door was locked and someone broke it open, tailing tbe threshed kaffir corn from the granary; I had 52 bushel and they left seven or eight bushel in the granary; I saw where they loaded the sacks out, but the wind had blown hard that night and I could not tell definitely as to the tracks; the car seemed to have been left in the road and the kaffir corn carried from the granary; I tracked them nearly to Thomas, but could not follow the track any farther.
“I know W. C. Campbell, who claims to have lost a trailer the same night I lost my kaffir corn. The officers came out and made an investigation; the night watchman from Thomas and Everett Stambaugh came out to make the investigation. I know Clifford Smith, but do not know the defendant E. R. Starr; I do not know the men are related, but I understand they are. Smith’s father lives in my neighborhood; I understand Clifford Smith was living down about Fort Cobb on the 27th day of January, 1936.”

W. C. Campbell, testifying for the state, stated:

“I live about three miles north of Thomas; I know Mr. Pfeiffer, I live about a mile from him; Mr. Pfeiffer missed some kaffir com, and I lost a two-wheel trailer the same night the kaffir corn was taken; I called the officers and received the information they were at Mr. Pfeiffer’s; I did hot undertake to track my trailer any farther than Mr. Pfeiffer’s, as I received information they had lost the tracks. No one had any authority to take my trailer. I don’t know where Mr. Starr was living at the time, but I understand he was living near Carnegie. I think Smith and Starr are brothers-in-law, married sisters. I got my trailer back. I found it about 12 miles south of. Carnegie, about a mile and a half from where the defendant Starr lived. The casings were off and the wheels broken. This trailer was made from the rear axle of a Model T Ford; I had no trouble in identifying it; the front end gate was made of lumber, and the two beds lapped over like that (indicating); when it was taken you could baúl a cow in it, it had a stock rack on it. The Smith boys’ parents lived up there at the time and are still living in that community.”

J. E. Stambaugh stated:

“I am undersheriff, and was during the month of January, 1936; I learned of the theft of the kaffir corn and trailer; I could not track the trailer, for some cars had passed over the tracks; the kaffir corn seems to have been taken from the granary to the road; I saw, as near as I could tell, three different men’s tracks; the building had been broken into.
“The Campbell trailer was described to me and I saw the trailer 12 miles southeast of Carnegie; I went with Mr. Campbell to get the trailer. The rubber was broken off the trailer and a wheel broken down, and the end gate was shy. It had been pulled over by the side of a place, I forget the old gentleman’s name, it was not any of the defendants; I think from Mr. Campbells’ place "to where we found the trailer near Carnegie was about 40 or 50 miles, that would be my guess. I know Clyde Smith, Clifford’s older brother, but I do not know where he is, I have tried to find him; I think Clyde was staying in Weather-ford at the time of the commission of this alleged offense.”

On redirect examination witness stated:

“I arrested these boys; found Mr. Starr at his home, and Mr. Smith at his home east of Port Cobb; the trailer was found a mile and a half or a mile and three-quarters from the Starr place.”

L. K. Jones, testifying for the state, stated:

“I live 11 miles south of Carnegie, Okla.., in Caddo county; have lived there 16 years; I know Mr. Smith, but. I do not know Mr. Starr — got acquainted with him the first* of January this year — he lived in the community at that time, a little over two miles from me. I saw him last January in a car that was pulling a trailer; south of my place a little ways, it was tolerable early in the morning; be bad stopped near a bridge south of my place, out of gas I guess, I suggested that I push him down to the filling station, about a mile and a half, and I did. The car I pushed, I think, was a Chevrolet; I did not pay any attention to it; he was pulling an old two-wheel trailer made out of a Ford, and I noticed one sack of kaffir corn; I mentioned something about it being kaffir. corn; there were three men, I only knew Mr. Starr; Mr. .Starr was standing by the car; I don’t know how to estimate whether the trailer Avas heavily loaded; there was a little kaffir corn out of one sack; before I started pushing the car down to the station the trailer was unhooked from the car; we left the trailer by the side of the road; I cannot give the exact time as to Avhen this was. Q. Did you ever see the trailer again? A. Well, I think I saw it again. I don’t believe the trailer had rubber tires on it when I helped detach it from the car; I can’t say whether both tires had rubber on them or not; I remember there was one tire off; I saw the trailer, supposed to- be the same trailer — some time later, it Avas found in front of my neighbor’s house one morning, I don’t remember just how long after I saw this man with the trailer on the road, but it must have been two or three weeks; the trailer I saw about a mile and a half in the grader ditch seemed to have been abandoned two or three weeks after I saw Mr. Starr and the two men with him on the road with the car and a trailer. I did not examine it.”

P. B. Walters testified:

“I live 12 miles south and a mile west of Carnegie, in Caddo county; I know L. R. Jones and Starr the defendant; have known Starr about nine months. Mr. Starr lives about a mile from my house the way we have to go; I do not know Clifford Smith or Mr. Campbell; I saw a two-wheel trailer in the neighborhood about the 6th of February, about a mile east of my place; it Avas there a day or two, and they pulled it up off the highway into this yard; the trailer seemed to he made from an old model Ford back end, and of lumber; I saw some indications that oats had been in the trailer; I brought the trailer oyer to the place I am speaking of from Harry Harkey’s place; Harry Harkey is an Indian. I have not see him here today; we took the trailer down the road and did not go by my place.”

No testimony was offered on the part of the defendant.

At the close of the state’s testimony, the defendant demurred to the evidence of the state for the reason that the same is wholly insufficient to support or make the charge contained in the information, or any other offense. Defendant stated, “We want this demurrer to each defendant separately.” Whereupon the demurrer of the defendant Clifford Smith was sustained and the demurrer as to the defendant E. K. Starr was overruled; to- which action of the court the defendant E. E. Starr reserved an exception. The defendant then moved the court to instruct the jury to return a verdict of not guilty, which motion was by the court denied and exceptions saved.

The defendant has assigned three errors alleged to have been committed by the trial court: First, the court erred in overruling defendant’s demurrer to the evidence of the state, and erred in denying the plaintiff in error’s motion for a directed verdict; second, the evidence of the state is insufficient to sustain the verdict of the jury and the verdict is contrary to the evidence; third, council for the state made prejudicial argument to the jury and called the attention of the jury to the fact that the defendant did not testify.

There is no dispute that the Pfeiffer kaffir com was taken from the granary, as testified to by him; and there is no dispute that a trailer belonging to Mr. W. C. Campbell was stolen from his place on the same night. It is admitted that the defendant Starr did not live in the community where Mr. Pfeiffer lived, and had never lived in that settlement.

The question for this court to decide from the evidence is: Does the testimony sufficiently show circumstances to warrant the sustaining of the verdict by the jury? The defendant was not seen by anyone in the neighborhood where the property is alleged to have been stolen, and was not seen by anyone within 50 miles of where the property is alleged to have been taken. The only evidence tending to connect the defendant with the taking of the kaffir corn is the testimony where the defendant and two other men were seen on the public highway about 60 miles from where the property is alleged to have been taken, the car out of gasoline, and the witness L. R. Jones stated he suggested to them that he push them to a filling station where they could get some gasoline. The trailer was disconnected, and the witness Jones pushed the car down to the filling station where he left the parties and the car. What became of the parties when they left the filling station the testimony does not show, and there is no testimony to show the kaffir corn in the sack in the trailer was the property of Pfeiffer.

The testimony shows that the defendant was not driving the car to which the trailer was attached, and when the trailer was disconnected from the car, the car was pushed down to the filling station by L. R. Jones, and the trailer was left on the roadside; and there is no testimony whatever to show that the defendant in this case exercised any ownership over the trailer or made any statement concerning the ownership of the trailer or the grain. The state failed to show that the trailer was taken to the defendant’s place ; and there is no evidence to show that the defendant had kaffir corn at his place, or that he sold any on the market. The witness P. B. Walters had known the defendant since lie moved to tlie place within about a mile of the Walters home, but he does not state he saw the defendant with the trailer, or in any way whatever handling the trailer. Who the party was that was driving the car at the time it was pushed to the filling station for the purpose of getting gasoline no one seems to know. The record is silent, except Clifford .Smith was jointly informed against with this defendant, and in the trial of the case a demurrer was sustained and Smith released. Whether Smith was one of the parties in the car, or was driving the car, the record does not show.

The defendant moved from near Fort Cobh to the place where he was living at the time of the alleged larceny of the kaffir corn for which he was tried and convicted. The trailer that Mr. Campbell identified as being his was found on the road about 60 miles from where it is alleged it was stolen, on the highway near the place of Harry Harkey, an Indian citizen. How the trailer came there the record is silent.

The defendant offered no testimony and stood upon the record, and contends the testimony is wholly insufficient. to connect him with the larceny of the kaffir corn. The Avitness P. B. Walters testified when he examined the old trailer it had some oats in the box of the trailer, but not a word as to whether there was any kaffir corn in the box. And the witness Jones, who saw the trailer on the road Avhere it was disconnected from the car for the purpose of pushing the car down to the filling station to get gasoline, says he thinks he saw the trailer later on, but he does not positively identify it as one and the same trailer, and does not undertake to say that the defendant in this case Avas exercising any more OAvnership over the trailer than the other parties with him, one of whom was driving the car.

It is urged by the defendant that this testimony, being purely circumstantial, is not sufficient to overcome the presumption of innocence to which he is entitled under the law, and to sustain his conviction. The Attorney General insists that the evidence is sufficient to exclude every other reasonable hypothesis other than that of the defendant’s guilt.

This court in the case of Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504, in the second paragraph of the syllabus stated:

“The facts and circumstances proved must not only be consistent with and point to' the guilt of the defendant, but they must be inconsistent with his innocence.”

In Key v. State, 22 Okla. Cr. 284, 210 Pac. 1044, in the first paragraph of the syllabus this court said:

“Where, in a criminal case, circumstantial evidence is entirely relied upon for conviction, the facts and circumstances must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence.”

In Davis v. State, 18 Okla. Cr. 112, 193 Pac. 745, in the second paragraph of the syllabus the court said:

“Where the state relies wholly on circumstantial evidence to prove guilty knowledge, the circumstances relied upon, when considered together, must point clearly and conclusively to the guilt of the defendant and exclude every reasonable hypothesis other than that of guilt.”

In Davis v. State, supra, in the body of the opinion the court stated:

“It is incumbent upon the state to prove every essential element of the crime by evidence beyond a reasonable doubt, and a conviction based upon circumstances which raise merely suspicions of guilt should not be allowed to stand.” Tro v. State, 27 Okla. Cr. 418, 228 Pac. 530; Adams v. State, 38 Okla. Cr. 173, 259 Pac. 665.

In Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260, this court, in subdivision b of paragraph 2 of the syllabus, stated:

“Where the evidence only raises a suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof; and the court should direct a verdict under such circumstances.”

In Barcus v. State, 60 Okla. Cr. 351, 44 Pac. 2d 897, in the syllabus the court stated:

“When, in the trial of a criminal case, the evidence relied on to connect an accused with the crime charged is entirely circumstantial, it must do more than raise a suspicion or inference of guilt, but must point clearly and conclusively to guilt and exclude every reasonable hypothesis of innocence.”

The evidence of the state tends to raise a suspicion that this defendant took part in the larceny of the property, but it is not, in the opinion of the court, sufficient to overcome the presumption of innocence which follows the defendant throughout the trial until overcome by competent proof.

The defendant in his second proposition insists that the county attorney committed reversible error in his closing argument by saying that: “The defendant had the stolen property. There is no other fact. Nobody has given you any other fact.” This the state contends was in reply to the argument of the defendant’s attorney.

After a careful examination of the authorities cited, without going into detail, we hold that this argument of the defendant is without merit. The demurrer of the defendant to the evidence and his motion for an instructed verdict on the ground that the evidence is insufficient to sustain a conviction should have been sustained.

The judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


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    BENJAMIN TRAIL v. STATE.
    No. A-9309.
    Dec. 23, 1937.
    (74 P. 2d 1170.)
    Hugh J. Adams, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and C. E. Barnes, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of burglary in the second degree, was convicted, and the jury assessed his punishment at six years in the penitentiary. From this judgment and sentence, he has appealed.

Fritz Pohlemann, the prosecuting witness, resided at 718 West Oklahoma avenue, in the city of Guthrie. On the 16th day of July, 1936, he left his home about 5 o’clock in the morning to go fishing. All of the doors and windows were securely locked and fastened. When he returned home just before noon, the front door was open, one window was up, and the window screen was torn loose and the window unhooked. Upon examination of his premises he found that certain wearing apparel, consisting of shirts, trousers, and a corduroy jacket, and a blanket were missing. This property was found by him the same morning at the home of Mrs. 'Rosetta Belding in Guthrie, where defendant was staying and where he was arrested by the officers whom Mr. Pohlemann secured after identifying his property. The defendant was seen by two small boys who were playing near the residence of Fritz Pohlemann just after the house had been entered. They knew and identified him. He was carrying clothing Avrapped up in a blanket and which they identified as the property of Mr. Pohlemann. He was coming from the direction of Mr. Pohlemann’s home and going in the direction of Mrs. Belding’s home, where the property was found and where he was staying. A member of the Guthrie police force testified he was talking to the defendant, the following morning and he said he got part of the clothes hanging up and part of them laying down. He thought he got the blanket laying on the bed, and when asked if he was talking about the Pohlemann house, he said: “Yes, where the fellow Fritz lived.”

The defendant, testifying in his own behalf, said that he was married and had a wife and six children; that he lived in 'Oklahoma Oity, but had sent his family to California about the 27th of June; that he intended to go there later. He met Irvin Belding when both were in the city jail in Oklahoma City. They planned to go to Irvin Beld-ing’s home in Guthrie and leave from there for California in Belding’s car. A few days after his release from the city jail in Oklahoma City, he went to Guthrie and remained there for some time, staying at Irvin Belding’s home. On the morning of the 16th of July they went to a restaurant, where they drank liquor and, as he says, he got pretty well liquored up. He separated from Irvin Belding and another companion, and all that he remembers was going home near noon, and falling asleep until the officers arrested him about 7 p. m. The property that had been stolen was hanging in a closet in the Belding home. He had no recollection of getting the clothes or of breaking into the house. On cross-examination he admitted having been convicted of violation of the prohibitory liquor laws in Oklahoma City in 1935, and of having been convicted of burglary in 1916, and serving a sentence at Granite. From the above testimony, it readily appears that the contention that the evidence was insufficient to sustain the conviction cannot be upheld. The jury was fully warranted in finding the defendant guilty under the evidence. The court did not commit error in permitting the state to prove, on cross-examination of the defendant, that he had been convicted and served sentences prior to the time he was here charged. This court has held many times that evidence of this character was competent for the purpose of affecting the credibility of the defendant as a witness. Gore v. State, 25 Okla. Cr. 214, 219 Pac. 153; Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621.

The contention that the judgment and sentence in this case is too severe and is the result of passion and prejudice cannot be upheld. The punishment provided by the statute under Avhich the defendant was tried and convicted was not less than two' years and not to exceed seven years in the penitentiary. It is contended that if defendant committed the crime as alleged, he was so intoxicated at the time that he did not know that he had committed it. He so testified, but there was other evidence that he was not in that condition. He was able to walk from where the burglary was committed; he conversed with small boys whom he met, and told them his name. The record also discloses two prior convictions. As stated by this court in the case of Rex Fleming v. State, 62 Okla. Cr. 446, 72 Pac. 2d 403, 408:

“The law has placed the pardon and parole power in the hands of the Governor of this state. If it should be deemed proper, these instrumentalities of the law may be used to the end that justice be done.”

This statement applies to the facts in this case. Under the evidence, we do not feel warranted in reducing this sentence. An investigation of all the facts under the pardon and parole system of this state is the proper method.

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

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


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    W. C. ERWIN v. STATE.
    No. A-9329.
    Dec. 23, 1937.
    (74 P. 2d 1173.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. ‘Gen., and Sam H. Latti-mire, Asst. Atty. Gen., for the .State.
   PER CURIAM.

The plaintiff in error was convicted, in the district court of Jackson county, of burglary in the second degree, and his punishment fixed at two years in the state penitentiary.

This appeal must be dismissed for the reason that no notice of appeal was served on the clerk of the court and county attorney as required by section 3193, O. S. 1931, 22 Okla. St. Ann. § 1055, which section in part reads as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney.”

A failure to serve a notice upon the clerk of the court and the prosecuting attorney is jurisdictional. Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719; Austin v. State, 55 Okla. Cr. 278, 28 Pac. 2d 1113.

The appeal is dismissed.


text:
    EARL BLACK v. STATE.
    No. A-9246.
    Dec. 23, 1937.
    (74 P. 2d 1172.)
    A. J. Stevens, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter for convenience referred to as the defendant, was by information filed in the county court of Woods county, Okla., charged with the crime of possession of intoxicating liquor in said county, on the 20th day of January, 1936, with the unlawful intent to sell or otherwise dispose of the same. Upon his trial the jury returned a verdict finding the defendant guilty as charged. Motion for a new trial was filed, considered, overruled, and the defendant reserved an exception. On the 21st day of November, 1936, the court sentenced the defendant upon the verdict rendered by the jury to be confined in the county jail of Woods county for 60 days at hard labor, and. to pay a fine of $50 and costs taxed at $29.45.

The testimony in brief is that Ken Greer, the sheriff of Woods county, and Neis Nelson, a deputy sheriff, were returning to the city of Alva, and ont by the river at a temporary crossing, after they crossed the river they discovered a car with the defendant and one other man sitting in the car off a ways from the highway. It appears that Neis Nelson saw the car and asked Mr. G-reer to pull over toward the car.

There is no testimony to show that the defendant in this case, or the man in the car with him, were misbehaving in any way whatever. In order to justify the conduct of the officers who left the road and drove out to where the defendant and the man were in the car, the deputy attempts to say they arrested the defendant for drinking, in a public place

There is not a word in the record to show that where the defendant was parked was a public place. This statement of the deputy, in the opinion of the court, is a subterfuge to try to justify their unlawful act in going out and disturbing the defendant and his companion, and searching the car. Nelson claims to have seen the defendant taking a drink; the sheriff, Ken Greer, did not see anything of that kind. Deputy Nelson could not have known, if it be a fact, that the defendant was drinking out of a bottle, the contents of the bottle. They did not have a warrant for the arrest of the defendant or to search his car, and when they left the road where they were driving, and drove out toward the defendant’s car, they began to and were committing, so far as the defendant was concerned, an unlawful search and seizure.

The officers claim to have found a quantity of whisky in the defendant’s car after they searched it, claiming they had put the defendant under arrest for drinking in a public place before they searched it.

At the close of the state’s evidence the defendant interposed a demurrer to the same, which was overruled, and an exception saved..

There is no testimony in this case to show that a misdemeanor was committed in the presence of the officers, and unless the offense became known to> him at the time committed through his sense of sight, or through other senses, although the defendant was actually committing a criminal offense, it is not committed in the presence of the officer if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting the offense by the use of his senses, it could not be committed in his presence so- as to allow arrest without a warrant. Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631; Haltom v. State, 58 Okla. Cr. 117, 50 Pac. 2d 744.

Under the laws of our state a person has a perfect right to drive upon the highways and country roads, or temporary roads, established for travelers, and if he so desires he has a perfect right to drive off the highway and stop his car, and as long as he is peacefully remaining, in his car the officers of the law have no authority to go over to the car and demand to' see what is going on or what they are doing. When they do so they are trespassers and violators of the rights of the citizen, and where it clearly appears from the record, as in this case, that when they had driven out toward the defendant’s car and stopped •and rushed up to it they cannot justify their presence that the defendant was drinking in a public place.

The defendant was convicted on a charge of possession of whisky with intent to barter, sell, give away, or .otherwise dispose of the same. There is no testimony •whatever to justify this charge. No testimony showing that the defendant was engaged in the whisky business, or had ever been arrested, tried, or convicted on a charge of violating the prohibitory laws. Such conduct as the deputy sheriff in this case is guilty of is what brings disrespect for many officers of the law. This court desires to uphold the officers and protect them in their rights as officers in the enforcement of the laws of this state, but it cannot condone and justify a violation of the law by the officers, or subterfuges they will resort to in order to try to justify their unlawful and willful acts. All of the evidence secured against this defendant was unlawfully secured and should have been excluded from the jury upon the defendant’s objection, and the demurrer to the evidence should have been sustained.

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

DOYLE and BAREFOOT, JJ., concur.