text:
    D. L. LEWIS v. STATE.
    No. A-5364.
    Opinion Filed Dec. 15, 1925.
    (241 Pac. 835.)
    I. E. Hill, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, D. L. Lewis, was convicted on a charge that in Cimarron county, June 27, 1924, he “did then and there unlawfully, knowingly, willfully manufacture, ferment, and possess a compound mixture, mash, wort, and wash fit for distillation, and for the manufacture of beer, wine, distilled spirits, and other alcoholic liquors,” and in accordance with the verdict of the jury was sentenced to pay a fine of $50, and to be confined in the county jail for 30 days. To reverse the judgment entered on the verdict he appeals.

Of the numerous errors assigned it is only necessary to consider one — that the court erred in admitting incompetent evidence over the objections of the defendant.

Ben Cox, sheriff, testified that under authority of a search warrant he visited the defendant’s place, read the search warrant to him, and the defendant said, “Go ahead and help yourselves”; that he found some kind of a fruit mash in a crock which he produced, and the same was introduced in evidence; that he found the sa'me at the well house.

C. A. Esmay testified that he was with the sheriff and searched the place, and found this stuff in a stone crock; that the defendant said he made it for cider out of either peaches or apricots.

Charley Godown testified that when he was working for the defendant they went to Boise City, and the defendant bought some apricots and sugar, and said he was going to make some wine or cider; that night he saw him mix the apricots and sugar with water, but did not see him put any yeast in the mixture.

As a witness in his own behalf, the defendant testified that he lived on a farm with his wife and three children; that about two days before the search was made he mixed some sugar and water and then put some apricots in the mixture for the purpose of making cider, but did not put any yeast in the mixture; that he had no intention of making an alcoholic beverage out of it.

When the case was called for trial, the defendant filed a motion to suppress the evidence on the ground that the affidavit upon which the search warrant was based is sworn to on information and belief, and said search warrant was void and illegally issued. The affidavit upon which the search warrant issued recites:

“W. F. Ricks, of lawful age, being first duly sworn on oath, deposes and says that he believes intoxicating liquor, mash, still, and still worm are being kept by D. L. Lewis on the premises occupied by the said D. L. Lewis about one mile south of Boise City.”

And it contains a further recital as follows:

“Affiant states that he has been reliably informed that said D. L. Lewis is keeping and has in his possession all of the above-mentioned articles and things; that he verily believes said information to be true.”

It is the well-settled doctrine in this state that issuance of a search warrant to search premises for intoxicating liquor is unauthorized when based on an affidavit made on information and belief, and evidence obtained by a search of the defendant’s premises under such illegal search warrant is inadmissible against him, and that the same rule applies to objections made to oral testimony of officers relating to such illegal search and seizure. Committi v. State, 28 Okla. Cr. 380, 231 P. 316; Carignano v. State, 31 Okla. Cr. 228, 238 P. 507; Magin v. State, 25 Okla. Cr. 361, 220 P. 666.

It appearing that all the state’s evidence in this case was obtained by an unlawful search and seizure, and contrary to Const, art. 2, § 30, and that the same was improperly admitted against the defendant in violation of his right under Const, art. 2, § 21, the judgment appealed from will be reversed, and the cause remanded, with direction to discharge the defendant.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JESSE M. ROSS v. STATE.
    No. A-5366.
    Opinion Filed Dec. 15, 1925.
    (241 Pac. 502.)

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

On an information charging that in Cim-arron county, August 27,1924, he did “unlawfully have and keep in his possession a certain still worm, which after being set up may be used in the production of distilled spirits, to wit, whisky,” Jesse M.. Ross was tried and convicted and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. He has appealed from the judgment rendered upon such conviction.

The evidence shows that a search warrant issued on the affidavit of Ben Cox, sheriff, which affidavit recites that intoxicating liquors are being kept by Jesse Ross, in a certain building situated on section 14, township 1, range 7 E., C. M., in Cimarron county, for the purpose and with the intent of the said Jesse Ross to barter, sell, give away, transport, or otherwise furnish the same in violation of the law. When the case was called for trial, there v/as a motion filed on the part of the defendant to suppress the testimony of all persons who aided or assisted in the execution of the search warrant and to exclude from the evidence all property and things seized under said search warrant on the ground that said search warrant was illegal and void; that the same is based upon an affidavit sworn to on information and belief. A hearing was had upon the motion, and it was overruled.

The sheriff and Carl Eamey, a deputy sheriff, testified that under authority of a search warrant they visited the defendant’s home, where they found and seized one still worm, one-half gallon jug, two small bottles with-some whisky therein, one oil burner, and a small quantity of mash, which they found in defendant’s house and in a dugout within two or three-feet of the house and a still worm in a water tank near the house. All of which testimony was admitted over the objection of defendant.

As a witness in his own behalf, Jesse M. Ross testified that he had lived on the farm for three years with his aged mother, who at the time was visiting at Temple, Okla., and he had just returned from New Mexico, having been absent about 12 days; that one of the barrels found by the officers was a water barrel and the other a swill barrel, having less than a gallon of water in it, and neither barrel had ever been used to ferment mash; that the jug had never contained whisky; that the exhibit called a still worm he never saw before.

Five or six neighbors qualified as character witnesses, and each testified that the defendant’s general reputation in that community as to being a law-abiding citizen was good.

An examination of the record discloses that the search warrant was issued in violation of the statutes providing:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.” Section 7012, C. S. 1921.
“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.” Section 7013, C. S. 1921. v

These provisions safeguard the citizen, in his person, his home, and his property against unreasonable and unlawful search and seizure.

The search of the defendant’s home as shown by the record in this case was an unauthorized trespass, because the affidavit upon which the search warrant issued failed to state that the defendant’s residence was a place of public resort. It follows that all the evidence on the part of the state should have been excluded on the defendant’s objection, and the motion for a directed verdict should have been sustained.

Having reached this conclusion, it is unnecessary to consider the other errors assigned.

The judgment of the lower court is reversed.

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


text:
    WESLEY DAVIS et al. v. STATE.
    No. A-5374.
    Opinion Filed Dec. 16, 1921.
    (241 Pac. 500.)

      Thos. Norman, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Carter county, May 19, 1924,

“Wesley Davis, Alfred Davis, and Dan Miller did then and there willfully and unlawfully have in their possession certain intoxicating liquors, to wit, 64 gallons of Choctaw beer, with the unlawful intent to sell the same.”

On the trial the jury returned a verdict finding the defendant Alfred Davis not guilty, and the defendants Wesley Davis and Dan Miller were by separate verdicts found guilty as charged in the information and the punishment of each assessed at a fine of $500 and confinement in the county jail for six months. To reverse the judgments rendered on the verdicts, they have appealed to this court.

The first and most important question presented is the failure of the court to direct an acquittal, because the evidence is insufficient to connect the appellants with the offense charged.

The state relied for this conviction upon the testimony of two witnesses. Jesse Dunn, deputy sheriff, testified that he saw Wesley Davis and Alfred Davis at their home, and the old man, Wesley Davis, in company with two other men and two women had four 'bottles of what witness called “Choc”; that he did not taste the “Choc” or have it analyzed ; that he did not see the defendant Miller that day at any place. John W. Ginn, deputy sheriff, testified that he separated from Jesse Dunn at the Davis home, and went east a distance of some 250 yards to a lake, and there found two 32-gallon barrels of “Choc”; that he tasted the stuff he seized, and it was intoxicating; that the defendant Miller lived a quarter of a mile south and a little east of Davis; that he did not see Miller anywhere that day; that they arrested Wesley Davis and Alfred Davis and brought them to town.

On cross-examination he stated that Dan Miller lived outside the city limits of Ardmore, near the rubber plant and the Empire Refinery; that there was another house between the Miller home and where the “Choc” was found; that this house was about 300 yards from where he found the “Choc”; that the lake covered 5 or 6 acres and was on the refinery property; that he had never seen Wesley Davis, Alfred Davis, or Dan Miller down there; that the evening before he saw the defendant Miller at old Daddy Davis’ place; that at that time he noticed that he had a 100-pound sack of sugar in his car which was standing on the road in front of the house.

At the close of the state’s evidence there was a motion by the defendants for a directed verdict on the grounds that the evidence was insufficient to connect them with the commission of the offense, which motion was overruled.

For the defense, Lon McMillan testified that Alfred Davis and he were digging a cellar for Dan Miller on the day of the search and arrest; that it was 450 yards or further from the defendant Davis’ home to the lake; that a man named Cole lived within 250 yards of the lake; that the defendant Miller lived a little over a quarter of a mile southwest of the lake.

The defendant Dan Miller testified that he was at the home of Wesley Davis the day before Davis was arrested; that he had a sack of sugar in his car, purchased for domestic consumption; that he took it home; that he owned his home in the Industrial addition where he lived; that he kept cattle out there; that he stepped the distance from where the barrels of “Choc” were found to the Davis home; ■ that it was 290 steps, 3 feet to a step; that the “Choc” found was on the Industrial town site, not in his possession or possession or control of either of the defendants; that it was not found on his place nor did he have anything to do with it; that he had been chasing some of his cattle out of the Thomas pasture east of him and met the officers, and they told him to get his car and go to town and make old man Davis’ bond before they arrived at the jail with him.

At the close of the evidence the motion for a directed verdict was renewed as to each of the defendants.

It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.

If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to' show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal. Section 2713, C. S. 1921..

It is unquestionably the law that crime may be established by circumstantial evidence, otherwise society would be at the mercy of the criminal classes, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and where circumstantial evidence solely is relied on for a conviction the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every other reasonable hypothesis except that of guilt.

In this case the burden was on the state to prove that the place where the liquor was found was in the defendants’ possession or under their control, or that the Choctaw beer belonged to them, or that they had the possession of the same, either as owners or agents. The mere fact that the defendant Wesley Davis did have in his possession at his home four bottles of what the officers said was “Choc” is insufficient in itself to connect him with the liquor found by the lakeside. It is now shown that these four bottles contained intoxicating liquor. So far as the evidence discloses, these bottles were never opened, and the contents were not analyzed. It was the state’s theory because the defendant Miller on his way home with the sack of sugar in his car had stopped at the Davis home the night before the seizure was made that this connects him with the unlawful possession of intoxicating liquor as charged in the information, and this is the only incriminating circumstance tending to connect the defendant Miller with the offense charged.

Upon a careful consideration of the evidence offered on behalf of the state, we are of opinion that it wholly fails to prove the offense charged, for the reason that no actual or constructive possession by these defendants of the intoxicating liquors charged has been shown by the evidence; and for this reason we are of opinion as a matter of law that the evidence was insufficient to warrant a conviction.

The judgments of the lower court are accordingly reversed.

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


author: EDWARDS, J.

text:
    BERTHA BURKE v. STATE.
    No. A-5251.
    Opinion Filed Dec. 17, 1925.
    (241 Pac. 829.)
    F. W. Church for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Ottawa county, the plaintiff in error, hereinafter called defendant, has appealed.

The record discloses that the defendant was charged with having possession of whisky with the intent to sell, and the contention is made that the evidence is insufficient to sustain the verdict. The state called three witnesses, who testified in substance that, late on the afternoon of August 11, 1923, the defendant was seen in a Ford car about 4 1-2 miles from Miami, at which time the sheriff and a deputy came upon the scene and arrested the defendant. No whisky was found in or at the car, but it was testified that a funnel was found in the car, and about 150 feet away were found 10 half pints and 3 pints of whisky, and near the road in the weeds a jug that smelled of whisky. One witness testified that in the car in which the defendant came to the scene were the defendant and two men, and that they got out and walked down the fence while she waited. The whisky in question was found near a small culvert, and the surface of the grass showed signs of “tromping around.”

That is the entire case. There is no sufficient proof that the defendant had possession or was connected with the whisky in question.

The case is reversed and remanded.

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


author: PER CURIAM.

text:
    JOHN HENRY PITTS v. STATE.
    No. A-5334.
    Opinion Filed Dec. 16, 1925.
    (241 Pac. 1117.)
    Walter Mathews, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case charges that in Payne county, February 24, 1924, “John Henry Pitts and Mrs. Ben Smith, then and there being, did then and there willfully, unlawfully, and feloniously sell to Charley House one capsule of narcotic drug, to wit, morphine, a derivative of opium, for the price of one dollar, and the exact quantity of said narcotic drug being unknown to the county attorney, contrary to,” etc. On his separate trial the jury returned a verdict finding the defendant John Henry Pitts guilty of the crime of selling narcotic drugs, as charged in the information, but failed to agree upon the punishment. On June 6, 1924, the court pronounced judgment and sentenced the defendant to imprisonment in the penitentiary for a term of one year and to pay a fine in the sum of $500. From the judgment an appeal was perfected by filing in this court, November 6, 1924, a petition in error with a certified transcript of the record proper attached. The case is a companion case to that of Ben Smith v. State, 32 Okla. Cr. 247, 240 P. 656. The errors assigned are the same as in the Smith Case, wherein this court held adversely to the contentions of counsel for plaintiff in error. On the authority of the case cited, and for the reasons stated in the opinion in said case, the judgment of the lower court is affirmed.


author: EDWARDS, J.'

text:
    RALPH GILSTRAP et al. v. STATE.
    No. A-5200.
    Opinion Filed Dec. 19. 1925.
    (241 Pac. 829.)

      J. B. Drennan and Sam P. Ridings, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the iState.
   EDWARDS, J.'

From a conviction in the county court of Grant county upon a charge of having possession of whisky with intent to sell, the plaintiffs in error, hereinafter called defendants, have appealed.

The defendants argue but one assignment of error; that is, that the court permitted evidence obtained by an unlawful search without search warrant to be admitted against defendants over their objection. The record discloses that on the 20th day of December, 1923, the sheriff and three deputies, without a search warrant, went to the land upon which the defendants resided and made a search of the premises and found some evidence of the manufacture of whisky. They then went to the place of residence of the defendant, found a closed car setting in the yard about 20 feet from the house, which they searched and in which they found some whisky. They then searched the residence and found a milk can which, it was testified, “looked like they had been carrying mash in,” and finally the officers closed their search by searching the persons of' the defendants. The objection 'was made, throughout the course of the trial, to the offer of all the evidence obtained by the search; that it had been obtained unlawfully, without a search warrant, which objection was overruled and exceptions taken.

Irrespective of the guilt of the defendants, their constitutional right against unreasonable search as provided in section 30 of the Bill of Rights has been so palpably violated that a conviction based on evidence so obtained cannot be permitted to stand. It is not necessary to again review the law and the authorities upon this point, but see Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Klein v. State, 26 Okla. Cr. 173, 223 P. 201; Dyer v. State, 25 Okla. Cr. 328, 220 P. 69; Foley v. State, 25 Okla. Cr. 112, 219 P. 179.

The case is reversed and remanded.

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


author: BESSEY, P. J.

text:
    Ex parte JAMES A. POPE.
    No. A-5721.
    Opinion Filed Dec. 19, 1925.
    (242 Pac. 290.)

      Robert Burns, for petitioner.
    Geo. F. Short, Atty. Gen., and J. Berry King, G. B. Fulton, and Leon S. Hirsh, Asst. Attys. Gen., for respondent.
    Nathan Wm. MacChesney and MaeChesney & Becker, amici curiae.
   BESSEY, P. J.

The petitioner, James A. Pope, says he is illegally restrained of his liberty by the sheriff of Oklahoma county, upon a warrant of arrest issued by the county court of said county, charging the petitioner with having committed the offense of acting as a real estate broker without a license, in that he negotiated a lease on certain hotel property in Oklahoma City, for which he charged and received a real estate broker’s fee of $242, in violation of the provisions of chapter 129, Session Laws of 1925.

The petitioner says this act is unconstitutional and void, in that it undertakes to unreasonably burden and regulate a legitimate business, not subject to police regulation; that the enforcement of the act will, in effect, deprive the petitioner of the free right of contract, and amount to the taking of his property without due process of law; that the fees and fines therein provided, if paid by the petitioner, will be collected, disbursed, and expended contrary to the provisions of the Constitution of this state relating to the appropriation and disbursement of public funds.

The title to this act (chapter 129, Sess. Laws 1925) is:

“An act creating a state real estate commission, providing for the appointment of commissioners, defining their powers and duties, fixing their compensation and term of office, providing for the creation of a general fund for said commission, providing for the issuance of licenses by said commission, and prohibiting any person, firm, copartnership, association or corporation to act as real estate broker or * * * salesman without first complying with the provisions of this act; assessing penalties for violation of this act, and for other purposes, repealing chapter 205, Session Laws of Oklahoma, 1923, and declaring an emergency.”

Section 1 of the act (Acts 1923, c. 205) defines a real estate broker as:

“Any person, firm, partnership, copartnership, association or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, or rents or offers for rent, any real estate or the improvements thereon for others, as a vocation.”

It is further provided that a single transaction of the kind enumerated shall bring the agent within the purview of the law. This section contains a proviso excluding from its operation transactions of attorneys in fact or attorneys at law in the course of their profession as such, of receivers, trustees, guardians, administrators, and some others.

Section 2 authorizes the governor to appoint and create a real estate commission, composed of three members. This commission, when organized, is authorized to “do all things necessary and convenient for carrying into effect the provisions of this act and may from time to time promulgate necessary rules and regulations” to enforce it. Section 2 further provides for the maintenance of the offices of the commission and for its fiscal affairs, for offices in the state capítol building, for the employment of executive and clerical assistants, for the making, keeping, and distributing of public records and information, for collecting and disbursing the moneys coming into the hands of the commission from licenses, fees, fines, penalties, or otherwise. (The question of whether the provisions of this section constitute an “appropriation,” within the meaning of section 55, art. 5, of our Constitution, will be treated later in this opinion) .

Section 3 provides that licenses shall be granted only to persons of good repute for honesty and fair dealing, and the section following provides how such qualifications and other requirements to be met shall be determined by the commission.

A part of section 6 provides as follows:

“The original fee for each real ©state broker’s license shall be $10, and the annual renewal fee shall be $5. The original fee for each real estate salesman’s license shall be $2, and annual renewal fee shall be $2. Provided, that when a copartnership, association or corporation shall have paid an original fee of $10, or a renewal fee of $5, and shall have designated one of its members or officers as hereinafter provided in this section, the fees payable by any other member or officer actively engaged in the real estate business of such copartnership, association or corporation shall be $2 for the first registration fee and $2 for the renewal fee. * *' *
“Every license shall expire on the thirty-first day of December of each year. The commission shall issue a new license for each ensuing year, in the absence of any reason or condition which might warrant the refusal of the granting of a license, upon receipt of the written request of the applicant and the annual fee therefor, as herein required. $ $ $
“Every real estate broker shall maintain a place of business in this state. If the real estate broker maintains more than one place of business within the state, a duplicate license shall be issued to such broker for each branch office maintained. Provided, that if such broker be a co-partnership, association or corporation, a duplicate shall be issued to the members or officers thereof and a single fee of $2 in each case shall be paid for each duplicate license.

Sections 7 and 8 provide that the commission may. refuse to issue, or may revoke, any license for causes therein enumerated, after due notice and public hearing had, in which the commission is authorized to determine questions of both law and fact. The decision of the commission is final upon the matter, except that the person aggrieved may, in a proper court, apply for relief by certiorari, mandamus, or otherwise.

Section 11 provides a penalty for a violation of this act as follows:

“Any person or corporation violating the provisions of this act shall upon conviction thereof, if a person be punished by a fine of not less than $25, and not more than $500, or by imprisonment for a term not to exceed six months, or by both such fine and imprisonment, in the discretion of the court, and if a corporation be punished by a fine of not less than $100, nor more than $1,000. * * *”

The police power of the state in recent times has been extended to the regulation of an ever-increasing number of occupations and classes of business, including real estate and rental agents. Johnson v. Hulings, 103 Pa. 498, 49 Am. Rep. 131; Com. v. Real Estate Trust Co., 211 Pa. 51, 60 A. 551; Com. v. Samuel Black Co., 223 Pa. 74, 72 A. 261; 19 Cyc. 187; Little Rock v. Barton, 33 Ark. 436; Denning v. Yount, 62 Kan. 217, 71 P. 803, 50 L. R. A. 103; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385, 16 L. R. A. 423, 36 Am. St. Rep. 637; St. Louis v. McCann, 157 Mo. 301, 57 S. W. 1016; Banta v. Chicago, 172 Ill. 204, 50 N. E. 233, 40 L. R. A. 611; Riley v. Chambers, 181 Cal. 589, 185 P. 855, 8 A. L. R. 419; Dent v. W. Virginia, 129 U. S. 114, 9 S. Ct. 231, 32 L. Ed. 623; Ex parte Whitley, 144 Cal. 167, 77 P. 879, 1 Ann. Cas. 13; Ex parte McManus, 151 Cal. 331, 90 P. 702; German Alliance Ins. Co. v. Lewis, 233 U. S. 389; 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189.

Where the evils incident to any particular occupation or business are manifestly grave and of common occurrence, and such evils may be corrected by appropriate public supervision, it is then within the power of the Legislature to adopt appropriate regulations. To this end the lawmaking power of the state may limit the free individual right of contract or conduct to promote the general welfare, provided the regulations proposed reasonably tend to correct the evils sought to be remedied without burdening the business or occupation or society at large with other evils more onerous.

The first pertinent inquiry presented is this: Is there such fraud, imposition, and unfair dealing practiced by real estate and rental agents amounting to a condition for public concern, as will justify public regulation; and do the regulations and requirements of this act reasonably tend to correct the evils sought to be remedied without inviting others equally baneful?

If the question of the necessity for such a law and the expediency of the remedy proposed were for us to determine in the first instance, we would not hesitate to hold that there was no justification for either. Where the regulation of business is not manifestly essential or necessary, the addition of boards, commissions, inspectors, and supervisors to our already top-heavy governmental machinery has a tendency to deprive the people of their inherent liberties, affecting every phase of society, to such an extent that the freedom of the individual to contract and to pursue ordinary callings without the interference of some governmental agency will soon cease to exist — a calamity more dire than occasional evils flowing from greater individual freedom of action.

But the existence of the mischief sought to be remedied and the potency of the remedy proposed are problems of political economy, to be determined primarily by the Legislature. The Legislature, within its constitutional limitations, has the right to select governmental policies. Judicial review is limited to the authority and powers of the Legislature and their limitations. Insurance Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189; Hall v. Geiger-Jones Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643; Lieberman v. Van De Carr, 199 U. S. 552, 26 S. Ct. 144, 50 L. Ed. 305.

The United States Supreme Court, in the case of Hall v. Geiger-Jones Co., supra, in upholding what is known as the Blue Sky Law, went to the extreme limit of holding that the police power of a state may be extended to protect individuals against their own cupidity or defective judgment. The federal and other appellate courts have also approved and upheld regulations governing the rental of houses and living quarters. Marcus Brown Holding Co. v. Feldman et al. (D. C.) 269 F. 307; Block v. Hirsh, 256 U. S. 135, 41 L. Ed. 458, 65 L. Ed. 865; Annotations, 16 A. L. R. 178.

Through the influence of the National Association of Real Estate Boards, beginning with the year 1919, twenty-two states, including Oklahoma, have enacted real estate license laws, patterned largely upon a model prepared by this association. The Oklahoma law contains many of the chief features of this model act, but differs from the others in two or three important features, to be noticed later. This general form of regulation has been upheld by appellate courts in the cases cited below. Ex parte Raleigh, 177 Cal. 746, 171 P. 950; Riley v. Chambers, 181 Cal. 589, 185 P. 855, 8 A. L. R. 419; Zerlin v. State, 158 La. 111, 103 So. 528; Bratton v. Chandler, 260 U. S. 110, 43 S. Ct. 43, 67 L. Ed. 157.

But, since the Legislature is primarily the judge of the necessity for this class of regulation, and since the appellate courts in several states have lately approved it and the United States Supreme Court has also given its approval, we are constrained to hold that a reasonable plan for regulating real estate agents and their business by an official real estate commission or board, with executive and judicial powers to determine the qualifications of real estate brokers, and to prohibit those not qualified from acting as such, may be a subject of legislation within constitutional limitations.

To hold that the real estate business may be regulated, in this manner is not in conflict with the declarations of our Supreme Court in the opinion rendered in the case of State v. Riedell, 109 Okla. 35, 233 P. 684, holding that portions of the act regulating public accountants was unconstitutional and void because that act prohibited any accountant from pursuing that calling without a license showing his qualifications. The court in the Riedell Case pointed out that the occupation of an accountant in the performance of a private service was not inherently a matter of public concern, differing from trades and professions which touch all of the people generally. An accountant employed privately, if incompetent or dishonest, would affect only a limited class of individuals. Another distinction is that certain trades and professions are of such a nature that the value of the service rendered cannot be fully known by the recipient, and that a high degree of confidence in and reliance upon the knowledge and skill of the person performing the service must be had. This is not necessarily true of an accountant in the performance of a private service. He may be wanted to perform a service where no high degree of skill is required. The court in the Riedell Case was justified in holding that the prohibitions relating to the employment of public accountants privately removed the matter from the class of cases listed as doubtful and out of the twilight zone into a class beyond the power of the state to regulate.

That feature of the law providing that the Governor shall appoint as real estate commissioners three persons from a list of fifteen names submitted by the Oklahoma Eeal Estate Association, and that not more than two shall fee from the same political party, is probably in conflict with section 13, art. 6, of the Constitution of this state, in which an absolute power of appointment is lodged with the Governor. That power, it would seem, cannot be abridged by requiring him to select his appointees from those nominated by others. Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408. This infirmity, however, would not of itself operate to make the other provisions of the act inoperative, if otherwise valid.

The act provides that the rejection of an application for a license, or the revocation of a license, shall be upon hearings had before the commission, upon written notice, at a time and place designated. The expense of procuring witnesses shall be borne by the person at whose request the witnesses are summoned. A license may be refused or revoked for misrepresentations, false promises, concealing the fact that the agent is acting for both buyer and seller, failure to account and remit, for being unworthy or incompetent, or for “any other conduct” constituting improper practice. This section (9) of the act of 1925 concludes as follows:

“The findings of fact made by the commission, acting within its powers, shall in the absence of fraud be conclusive, but the district court shall have the power to review questions of law and of fact involved in any final decision or determination of the commission; provided, that application is made by the aggrieved party within thirty days after such determination by certiorari, mandamus, or by any other method permissible under the rules and practice of said court, or the laws of this state, and said court may make such further orders in respect thereto as justice may require.”

It is contended that these features pertaining to hearings and review are in conflict with the constitutional right of equal protection of the law, of the guaranty that justice shall be administered without sale, denial, delay, or prejudice, and that no person shall be deprived of his property without due process of law.

The right to an appeal is statutory, and a denial of the right to judicial review is not in conflict with due process of law. It is a right which the Legislature may, in its discretion, grant, limit, or take away; and it may prescribe in what cases, under what circumstances and from what courts appeals may be taken. Unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken. 2 R. C. L. 27.

We cannot assume that these commissioners will act arbitrarily. If it should happen that they did, in lieu of an appeal, this law affords a remedy by mandamus or cer-tiorari.

A statute requiring real estate brokers to furnish evidence of good moral character or reputation, and to secure a license, is a valid exercise of the police power of the state. Dent v. West Virginia, 129 U. S. 114, 9 S. Ct. 231, 32 L. Ed. 623; Ex parte Whitley, 144 Cal. 167, 77 P. 879, 1 Ann. Cas. 13; Ex parte McManus, 151 Cal. 331, 90 P. 702; German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189; Riley v. Chambers, 181 Cal. 589, 185 P. 855, 8 A. L. R. 419.

In the Ohio Blue Sky Law it was provided that, as a condition to obtaining a license to sell securities, the dealer must establish his good repute to the satisfaction of a state official. This feature of the law was upheld. Hall v. Geiger-Jones Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F. 514, Ann. Cas. 1917C, 643.

The right to refuse or revoke teachers’ certificates by superintendents and boards of education on account of bad character or incompetency has never been challenged in this state. Sections 10549, 10565, Comp. Stat. 1921.

The next inquiry is: Are the provisions of this act relating to the fiscal affairs of the commission in conflict with our Constitution? The provisions for the collection and expenditure of funds are as follows:

“Each member of the commission shall receive as full compensation for each day actually spent on the work of said commission, the sum of $10.00 per day and his actual and necessary expenses incurred in the performance of duties pertaining to his office.
“The commission shall employ, and at its pleasure discharge, a secretary and such clerks and assistants as shall be deemed necessary to discharge the duties imposed by the provisions of this act, and shall outline their duties and fix their compensation, subject to the general laws of the state. The commission shall obtain such office space, furniture, stationery, fuel, light and other proper conveniences as shall be reasonably necessary for carrying out the provisions of this act; said offices to be situated in the state capítol building and the custodian of public buildings is hereby directed to set aside in the capítol building such space as may be required for the needs of the commission. ‡ Í $ _
“All fees and charges collected by the commission under the provisions of this act shall be paid into the general fund of the Oklahoma real estate commission; said commission being hereby empowered and authorized to maintain and operate such general fund for the requirements and purposes of said commission under thhe provisions of this act including compensations to commissioners and employees, shall be paid out of the general fund in the Oklahoma real estate commission upon vouchers approved by a majority of the members of the commission; providing, that the total expense for every purpose incurred shall not exceed the total fees and charges collected and paid into the Oklahoma real estate commission under the provisions of this act.” (Acts 1923, § 2).

Section 55, art. 5, of our Constitution provides:

“No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act.”

By reference to the provisions of the act it will be noted that it was the intention of the Legislature to empower the commission within itself to act as its general manager, collector, auditor, treasurer, and paymaster. The commission is given authority to collect and spend as much money as it can get, under the provisions of the act, without accounting or reporting to any other person or department of the state. The language of the act, stating that the commission is “empowered and authorized to maintain and operate such general fund for the requirements and purposes of said commission” is susceptible of no other construction.

Ours is a republican form of government, safeguarded by checks and balances. It is contrary to the genius of our institutions to permit one and the same person to collect and spend the people’s money. From the provisions of the section of the Constitution above quoted, it is apparent that the sovereign people who framed the Constitution intended to keep a firm hand on the public purse strings, by limiting the power to spend money without an appropriation. If the Legislature is permitted to authorize a department of state to collect an indefinite amount of revenue from fees, fines, and penalties and spend all or a portion of it at will, it in effect destroys section 55, art. 5, of the Constitution, providing that public funds must not be paid out except in pursuance of an appropriation previously made.

Better to comprehend the nature and purpose of an appropriation, a glance at the history of the origin and developments of appropriations is illuminating. Originally the king collected and disbursed the moneys of the realm at will. In the year 1215 the barons forced Kang John to relinquish control of the exchequer, at Runnymede. In the course of time that power was taken from the lords and barons and lodged with the House of Commons. In this country, when the union of the states came into being, the manner of collecting and disbursing public funds was further limited by a proviso in the federal Constitution that all revenue measures should originate in the House of Representatives, and that:

“No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” (Art. 1, §9).

When the federal Constitution was being framed, this feature of the instrument was under consideration on a number of different days, as appears from the journal of the convention. In the course of these debates, Benjamin Franklin, the original watchdog of the treasury, said: “It is always important for the people to know who has disposal of their money, and how it can be disposed of.” Another delegate expressed the same principle by declaring: “The people should hold the purse strings.” That the people then were and still are jealous of this safeguard is evidenced by like provisions found in the Constitutions of all of the several states.

Now what is an appropriation' within the meaning of section 55, art. 5, of our Constitution ? Our Supreme Court, in an able opinion written by Justice R. L. Williams (Menefee v. Askew, Game Warden, 25 Okla. 623, 107 P. 159, 27 L. R. A. [N. S.] 527), defines it thus:

“An ‘appropriation’ in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum, from a designated fund out of the treasury in a given year, for a specified object or demand against the state.”

Other judicial definitions, equivalent in meaning, are numerous. Black’s Law Dict. (2d Ed.) 80; Words and Phrases, Second Series, p. 257; 4 Corpus Juris, 1460.

In this act the amount of money to be paid to the commissioners as salary is not fixed in any definite amount, and according to' the terms of the act there is no way in which their compensation can be definitely computed. The same is true of clerk hire and other expenses. Quoting further from the Menefee Case, supra:

“A valid appropriation under the provisions of our Constitution must distinctly specify the sum and the object to which it is to be applied. The object is distinctly specified, but the sum appropriated for actual and necessary office expenses is not set out or distinctly specified in any of the provisions of the act called to our attention, and in that respect the act falls. Under the provisions of this act, it seems that for such sum or sums as may be expended by the game and fish commissioner for actual and necessary office expenses a debt against such fund is created, but can be realized on by an appropriation only, specifically designating the sum, as well as the object or purpose for which the appropriation is made.”

The case of Edwards v. Childers, State Auditor, 102 Okla. 158, 228 P. 472, was a case wherein the plaintiff sought to enjoin the state auditor and state treasurer from approving or disbursing the funds from the state highway and construction fund in the state treasury, on the ground that there was no legal appropriation authorizing such disbursement. The court held that the appropriation was sufficient, and denied the application for an injunction. The Edwards Case differs from the case here under consideration in several material particulars. In the Edwards Case the authority for the disbursement of funds was in this language:

“All moneys raised by taxation or otherwise for the use of state highways of this state shall, unless otherwise provided by law, be placed in the state treasury in a fund, to be known as the state highway construction and maintenance fund, and shall be expended on state or county highways as herein provided, upon warrants issued by the state auditor after the filing of proper voucher or claims, by the state highway commission.”

In the case here being considered there was no special fund created. There was a fund named, but the naming of a fund and the creating of one are two different things. Moreover, the proponents of this act did not contemplate that the real estate commission fund would ever reach the state treasurer. It did not in its title, or elsewhere, assume to repeal or modify any general law, or provide that the funds collected should be handled or disbursed in accordance with any other existing law. On the contrary, by the express provisions of the act, none of the funds were to reach the state treasury, or any other independent depository. The commission was empowered to collect and spend all the moneys collected without permission or hindrance from the treasurer, auditor, or any other state official. The act plainly states this and is susceptible of ho other construction.

It may be conceded, as was stated in the case of Edwards v. Childers, supra, that an appropriation may be authorized by implication. The court did not, as we construe it, attempt to announce a new or modified definition as to what constitutes an appropriation of a special fund not derived from the general revenues of the state. The collection, appropriation and disbursement of funds are three distinct instrumentalities. The derivation of a fund has nothing to do with its appropriation.

Bearing these distinctions in mind, we conclude that the legislative authority given to the real estate commission to collect and assemble funds in uncertain and unas-certainable amounts and to pay out and distribute the same to themselves and their employes, and for sundry other indefinite expenses, without supervision, is not an appropriation within the meaning of section 55, art. 5, of the Constitution.

To say that an appropriation is made when a commission is authorized to spend a whole fund as it pleases for a particular purpose, but that no appropriation is intended where the expenditures are limited to specified items or amounts, is a test which will necessarily defeat' the very purpose of the constitutional prohibition against improvidence and waste by public officials. In nearly all of the cases cited in Edwards v. Childers there was a formal appropriation from a special or general fund in a definite sum, or in a sum which could be definitely ascertained, not contingent upon uncertain revenue, or for indefinite purposes — cases which shed but little light upon the question of whether statutes of this character will operate as an appropriation.

The more rational definition, and the one supported by the greater weight of authority, of the constitutional meaning of a public appropriation is the one quoted from Justice Williams’ opinion in Menefee v. Askew, supra. Most of the authorities cited in Edwards v. Childers support Justice Williams’ definition, rather than the one announced in that opinion. Courts should not indulge in subtle distinctions to avoid constitutional limitations.

So far as we know the commissioners in this particular instance have collected and disbursed their funds honestly and discreetly. They may be like Caesar’s wife, above suspicion, but such fact will not constitute a sufficient reason for disregarding a provision of our Constitution. Other commissioners may follow who are not so circumspect. If it is necessary to give boards and commissions more latitude in the expenditure of money, we should first change the Constitution.

There is yet another incongruity in this act. By general law the state board of public affairs is the custodian and superintendent of the capítol building and its offices. The board of affairs is the fiscal agent of the state to purchase office furniture and supplies for all departments of the state. 'Without attempting to modify the board of affairs law, the real estate commission is empowered by this act to purchase or obtain its office equipment, furniture and supplies. Just why the board of affairs should manage the office affairs of every department of state except this is not apparent.

We hold, therefore, first, that the Real Estate Commission Act (chapter 129, Session Laws of Oklahoma 1925) created no special fund subject to public supervision, or otherwise; second, that no valid appropriation of funds was made, within the meaning of section 55, art. 5, of the Constitution ; and, third, that it is against public policy to operate a department of state not supported by public funds, pursuant to a valid appropriation; and that' for these reasons the whole act is inoperative and void.

The writ of habeas corpus is granted, and the petitioner discharged.

DOYLE and EDWARDS, JJ., concur.


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    DAVID MARTIN v. STATE.
    No. A-5295.
    Opinion Filed Dec. 19, 1925.
    (241 Pac. 1117.)
    Bert Van Leuven, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

From a conviction in the county court of Nowata county, on a charge of using profane language in a public place, the plaintiff in error, hereinafter called defendant, has appealed. This action was filed in this court on September 16, 1924, and no briefs have been filed in support of the appeal. We have examined the record and find the crime properly charged, and the evidence ample to sustain it, and the instructions without prejudicial error. The defendant offered no evidence at the trial. The appeal is wholly without merit. The case is affirmed.


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    J. W. MITCHELL v. STATE.
    No. A-5274.
    Opinion Filed Dec. 19, 1925.
    (241 Pac. 834.)
    E. Hamilton, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Grady county, January 23, 1924, J. W. Mitchell, G. A. Evans, and Claude Mitchell did take and steal from W. J. Traxler one set of harness and four collars, all of the value of $60. Upon his separate trial the jury returned a verdict finding the defendant, J. W. Mitchell, guilty -as charged, and fixing his punishment at imprisonment in the penitentiary for a term of two years.

The only errors assigned are that the evidence'is insufficient to support the verdict, and that the court erred in overruling the motion for a new trial. The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed. We have carefully examined the record, and find that the verdict is ample to support the judgment. The defendant did not testify.

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

Finding no prejudicial error, the judgment of the lower court is affirmed.

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


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    WADE H. HYDE v. STATE.
    No. A-5242.
    Opinion Filed Dec. 19, 1925.
    (241 Pac. 831.)
    Thompson & Smith, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Upon an information charging him in the usual form with having killed and murdered one D. F. Taylor, June 13, 1922, Wade H. Hyde was tried and found-guilty of manslaughter in the first degree and his punishment assessed at imprisonment in the penitentiary for a term of ten years. From the judgment rendered in accordance with the verdict, January 10, 1924, an appeal was perfected by filing in this court on July 9, 1924, a petition in error with case-made.

The errors assigned are that the evidence is insufficient to support the verdict; that the court erred in admitting incompetent evidence on behalf of the state and in excluding competent testimony offered by the defendant; that the court erred in the instructions given and misconduct of the county attorney in his argument to the jury. However, no brief in support of the assignments of error has been filed, and no appearance made on behalf of the plaintiff in error in this court.

It appears that the defendant, about 48 years old, and the deceased, something over 50 years, lived across the road from each other, about two miles east of Bristow; that the defendant took up a cow belonging to deceased, that about 20 minutes later the deceased went to the defendant’s cow lot, some words passed between them, and the defendant shot the deceased three times. One bullet passed through the right arm between the elbow and wrist and broke both bones in the arm, one passed along the abdomen, and another bullet entered the side, passing through the bowels. Death resulted the following day.

There were several eyewitnesses to the shooting, but none heard the words spoken before the shooting. They all agree that the defendant jumped back, pulled a revolver and fired the shots.

As a witness in his own behalf, the defendant testified that after putting the cow in the lot, he saw Mr. Taylor coming in the yard, and he walked out and met him; Mr. Taylor said, “I came after the cow”; that he told' him to pay one dollar and he could take her; that Mr. Taylor had a penknife in his hand and was coming towards him, and said, “Get out of my way, or I will cut your damn heart out,” and he jumped back and fired the shots with a 32 Colts automatic.

Without the aid of oral argument or a brief on the part of the plaintiff in error, we have examined the whole record, and we find the same free from error. In fact, no law question is presented by the record. Only a general exception was taken to the instructions given, and there were no instructions requested on the part of the defendant. No objection was made or exception reserved to the argument of counsel, and this assignment is not sustained by the record.

The evidence is amply sufficient to support the verdict. It appearing that the defendant had a fair trial and was properly convicted, the judgment of the lower court is affirmed.

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


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    JOSEPH C. BARKER v. STATE.
    No. A-5351.
    Opinion Filed Dec. 23, 1925.
    (242 Pac. 274.)

      J. H. Price, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Joseph C. Barker, for convenience referred to herein as the defendant, was convicted of manslaughter in the first degree, for the killing of his infant son, Artemus Barker, aged about 2 years. By verdict of the jury, his punishment was fixed at confinement in the penitentiary for a term of 8 years.

The defendant and his family lived in three tents at the Legion Park on the outskirts of Watonga. This little child had been frequently chastised severely by the father. In the early summer of 1924 it was observed that this child was no longer at or about the tent home of the family, and investigation confirmed the suspicion that the child had been the victim of foul play. Finally the county attorney and the sheriff went to the defendant’s tents to make further inquiry concerning the child’s disappearance. Concerning this visit the sheriff testified in part as follows:

“Q. What did you, or what did any of you do, after getting out there? A. Well, when we got out there, we drove out there in the car, and Avhen we got out there we stopped the car about 8 or 10 steps from where their tents were, and Mr. Barker met us there and wanted to know what our business was, what we wanted out there.
“Q. Just go ahead and tell. A. The county attorney talked with him there a few minutes, tried to talk to him, and he insisted that we leave, and finally Mrs. Barker got up from where she was eating in one tent and came to the door with a shotgun and insisted that we leave, and to do it right then. Mr. Barker stood around there with his right hand in his pants pocket and he was insisting that we get out of there and go right then.”

After some further argument, the county attorney and ■the sheriff left the park and procured a warrant for the arrest of the defendant, his wife, and a kinsman who lived there with them. The county attorney, the sheriff, the jailor, and the manager of the park all went to the tents of the defendant to arrest the parties named. Concerning this second visit, the sheriff, corroborated by the others, testified:

“A. I met Mr. Barker there, and he wanted to know what we wanted now, this time, and I says, T have a warrant for you,’ and I offered to read the warrant to him, and he wouldn’t listen to me, and he still had his right hand in his pocket, and at that time Mrs. Barker came out from the tent and started back to that tent where she got the shotgun the first time, and I didn’t pay much more attention to Mrs. Barker after that.
“Q. What did you do then ? A. I beat her to the shotgun.
“Q. Did you have any trouble getting possession of the shotgun? A. Yes, sir; Mrs. Barker and the girls were all in the tent where the shotgun was, and there was a six-shooter and a shotgun lying on the bed, and the ammunition was spread out there on the bed for both guns, and I had a sixshooter in my hand, and when I got there I had another six-shooter and a shotgun, and" I had my hands full, and they was trying to take that shotgun away from me, and we wrestled around quite a little bit.
“A. I saw the county attorney had hold of Mr. Barker’s wrists, and the undersheriff was taking an automatic pistol out of his hand.”

As will be seen from the above testimony, and as appears from that of other witnesses, there were several guns there, of various kinds, all loaded, and plenty of extra ammunition on the bed ready for use.

The defendant and his wife and his kinsman were taken by the officers and lodged in jail on a charge of murder.

Lillian Barker, aged 6 1-2 years, Alma Barker, aged 12, and Naomi Barker, aged 10, all sisters of the child Ar-temus, all testified that their little brother was dead. The youngest, Lillian, testified in effect that the child’s death was due to a blow on the back of his head, administered by the father with a wooden club. The other sisters did not see the fatal blow struck, and could not of their own knowledge state the cause of the child’s, death, except that they said he had a wound on the back of his head, and that after lie was dead he was dressed in a little white shroud and taken away secretly at night.

The only assignment of error which raises a question worthy of serious consideration is whether the child witness, Lillian Barker, was competent; whether the facts related by her were worthy of credence.

Regarding the competency of various classes of witnesses, section 589, Comp. Stat. 1921, provides as follows:

“The following persons will be incompetent to testify: ❖ # * * ❖ ‡ $ *
“Second. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly."

In the case of Walker v. State, 12 Okla. Cr. 179, 153 P. 209, this court said:

“When objection is made to a witness, on the ground of incompetency by reason of nonage, the competency of the witness is a mixed question of law and fact, to be determined by the trial court upon an examination of the witness, and only a manifest abuse of judicial discretion in deciding that a child is competent to testify will warrant interference with such decision on appeal. * * * Intelligence and not age is the proper test by which the competency of a child as a witness must be determined, and, where it appears that a child witness had sufficient intelligence to receive just impressions of the facts respecting which she is to testify, and the capacity to relate them truly, and has received sufficient instruction to appreciate the difference between right and wrong, and a proper consciousness of the punishment of false swearing, an objection on the ground of incapacity and incompetency was properly overruled.”

In Darnell v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A. L. R. 638, it was said:

“The question of the competency of a witness under 10 years of age is a matter addressed peculiarly to the discretion of the trial court.”

The substance of what has been said in the foregoing cases was reiterated in Collins v. State, 15 Okla. Cr. 96, 175 P. 124, and again in a late decision of this court, Rutledge v. State, 32 Okla. Cr. 396, 241 P. 351.

This child was quite young. Many children of her age might not be able to qualify as witnesses, but the trial court in this instance took great pains to inquire into her intelligence and powers of understanding, as well as her comprehension of right and wrong and the penalties for testifying falsely. She was able to read in the sixth reader. ,She had read extensively from the Bible, and read portions of it in open court. She stated that she knew it was wrong to testify falsely, and that she could be put in jail if she told a falsehood in court. She believed in future rewards and punishments. Her recital of the facts appeared as consistent and intelligent as some narratives coming from witnesses of mature age. Portions of her testimony were a little obscure, but some of these points might have been clarified by further examination.

It is often difficult to determine the alertness of perception or the reliability of the memory of a witness from the mere language of the record. What the witness actually meant and how well she knew whereof she told could be better understood from observing the manner of her physical and vocal expressions, and her general demeanor as a witness. All things considered, we cannot say that the trial court abused his discretion in permitting her testimony to go to the jury.

The conduct of the defendant and his wife in objecting to and resisting an investigation of the child’s absence, and their resistance of arrest, are indicative of misconduct of some character, and consistent with the theory of the state that the child was killed by his father, as outlined by his little girls.

The officers of the law in this case exercised extraordinary forbearance and discretion in handling a dangerous situation, and for this they should receive the highest praise.

While the defendant was within his rights in refraining from going on the witness stand and explaining this unusual state of affairs, yet the fact that no explanations were made by those persons who could have cleared up the mystery in all of its details may be considered here as tending to corroborate the state’s testimony.

The judgment of the trial court is affirmed.

DOYÍLE, J., concurs.

EDWARDS, J., does not participate, having certified his disqualification.


text:
    FRANK KOLANDER v. STATE.
    No. A-5322.
    Opinion Filed Dec. 23, 1925.)
    (241 Pac. 837.)
    Fred L. Hoyt, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Ellis county, on the 8th day of May, 1924, “one Frank Kolander did then and there unlawfully have in his possession certain mash fit for distillation or the manufacture of wine, or other alcoholic liquors.” A trial was had thereunder and the defendant was found guilty. August 13, 1924, the court rendered judgment and sentenced the defendant to pay a fine of $200 and be confined in the county jail for 30 days. To reverse the judgment he appeals.

The evidence shows that on the day alleged under authority of a search warrant, two officers visited the defendant’s home, some 6 or 7 miles southwest of Shattuck and searched the premises.

When the case was called for trial, the defendant objected to the introduction of any testimony being given by the sheriff or his deputy, whose names are indorsed on the information, for the reason that the search and seizure was made by these officers under a void search warrant, issued on an affidavit that was legally insufficient. In support of the affidavit the search warrant was offered in evidence. 'The affidavit, which was verified by the sheriff, recites:

“That in Ellis county, state of Oklahoma, on the 8th day of May, 1924, the above-named defendant John Doe, whose real name is not known, in a resident building, or •barn, granary, cellar, cistern, chicken house, on the farm land, pasture, orchard, at and on the north one-half of section 13, township 20, R. 26, did, then and there unlawfully and willfully, have in their possession and under their control, and did, then and there, keep and do now have in their possession and under their control, whisky, beer, and wine and other compounds.”

The proof shows and it is undisputed that affiant did know the name of the defendant. The affidavit does not allege that the defendant’s residence was a place of public resort. The motion to suppress was overruled.

James BGaslam, sheriff, testified that under authority of a search warrant he visited the north half of said section 13 and the home of the defendant, who was absent, his wife and three children and his father were there; that he found a barrel of mash in the workshop and found a broken bottle near the house that had a small amount of whisky left in the broken part; that the mash was dry, but It smelled very much like whisky; that he found a copper funnel and a piece of yeast and a wash boiler; that he returned the wash boiler because he was convinced that it had not been used in making whisky.

Frank Hecox, deputy sheriff, testified that he was with the sheriff when they searched the defendant’s home and premises; that they found a barrel of mash and a copper funnel; that they did not find anything belonging to or connected with a still.

Frank Kolander, as a witness in his own behalf testified that he lived on his farm, 6 miles southwest of Shat-tuck; that he had lived in Ellis county 22 years; that the barrel seized by the officers contained horse feed and hog feed, made of rye soaked in water; that he put it in the shop to keep the cattle from getting into it; that the funnel seized was used for filling the tank of his tractor; that he knew -nothing about the yeast introduced in evidence; that he had never been arrested before.

Three other witnesses testified that the barrel contained soaked grain, and that was the customary way of feeding unground barley, rye, and kaffir corn in that community to work stock. It also appeared that the defendant only owned one quarter section of the half section described in the affidavit and search warrant.

The record shows beyond a doubt that the search warrant in this case was not issued in accordance with the law. Under the statute (section 7013, C. S. 1921) no officer is authorized to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort, and no magistrate in this state has the power to issue a search warrant to search a private residence, unless it is made to appear that such private residence comes within the exception in said section. Foster v. State, 27 Okla. Cr. 270, 226 P. 602.

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

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

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

And see Daniels v. State, 32 Okla. Cr. 426, 241 Pac. 836.

Upon the undisputed facts it appears that the search and seizure in this case was an unlawful trespass, and that all the evidence was improperly admitted against the defendant in violation of his constitutional and statutory rights.

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

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


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    JOHN LEMKE v. STATE.
    No. A-5356.
    Opinion Filed Dec. 23, 1925.
    (241 Pac. 832.)

      Massingale & Duff, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, John Lemke, by the verdict of a jury, was found guilty of illegal possession of intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for 30 days. To reverse the judgment rendered in accordance with the verdict, he appeals.

Of the numerous errors assigned, we deem it only necessary to consider the one, that the evidence is insufficient to sustain the verdict.

W. H. Dean, sheriff, testified that he found the whisky which was introduced as evidence about 150 yards from the defendant’s house, on the south side of the section line from the defendant’s house, but not on the premises of the defendant; that the jars containing the whisky were buried m the sand.

Two witnesses testified that they were sawing logs on the creek which passes near the section line intersection; saw the defendant walking along the section line tramping weeds; that he came up to where they were at work and asked them if they had seen any eggs around there.

J. H. Standerfer, deputy sheriff, testified that he was with the sheriff and they searched the defendant’s premises and did not find any whisky, but did find some fruit jars containing whisky buried in the sand on the section line on the south side from his house.

At the close of the state’s evidence, there was a motion by the defendant for a directed verdict, on the ground that the evidence was insufficient to connect him with the alleged offense, in the form of a demurrer to the evidence, which was overruled.

As a witness in his own behalf, John Lemke testified that his house is between 200 and 300 yards north of the section line where the whisky was found, and that the place was near the intersection with the east and west and north and south section lines, south and west of the defendant’s house; that near the said intersection there is a bridge across the creek, which is heavily timbered, and at that place people congregate nearly every night; that drinking, gambling, and carousing, was a common occurrence in the vicinity of this bridge; that several times he found jars there the next morning; that he never knew of the presence of the whisky in the section line; that it did not belong to him, and he did not know that it was there until the officers found it.

Dink Weathersby testified that he lived in the house where the defendant lived two years prior to the time defendant moved there; that he left the place because so many people congregated there near the bridge and at night, carousing there; that he often found jars and bottles on the ground there.

The testimony of three or four other witnesses for the defense was, in substance, to the same effect.

It is unquestionably the law that crime may be established by circumstantial evidence, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and, where circumstantial evidence solely is relied on for a conviction, the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every other reasonable hypothesis except that of guilt.

Obviously the verdict in this case is not supported by the evidence, and the motion for a directed verdict of acquittal should have been sustained.

The judgment appealed from herein is therefore reversed ; the cause remanded with direction to dismiss.

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


text:
    ALLEN CHERRY v. STATE.
    No. A-5246.
    Opinion Filed Dec. 23, 1925.
    (241 Pac. 833.)
    M. D. Hartsell, for plaintiff in errpr.
    Geo. F. Short, Atty. Gen., for the State.-
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county upon charge of manufacturing intoxicating liquor and sentenced to serve six months in the county jail and to pay a fine of $500, and has appealed.

The principal assignments of error argued are: First, that there was no corpus delicti proven other than by an extrajudicial confession of defendant; and, second, that the county attorney in his argument to the jury commented on the failure of the defendant to testify. An examination of the record discloses that at the time charged the defendant went to the witness Mack Saunders and informed him in substance that he with one Hamilton had been making whisky, and there had been a gas explosion which had killed Hamilton. Saunders then communicated with the constable, Mack Cobb, and together they went to the barn of Hamilton and found Hamilton dead as a result of burns received in a gas explosion. There was also found a gasoline stove wrecked by an explosion, signs showing that some mash had been poured out, and two jars with about a spoonful of whisky in each. The evidence of Constable Mack Cobb is to the same effect. In addition to other statements, the defendant informed Cobb that, while he had been gone to notify his brother-in-law of the explosion, somebody had stolen the still away. Those were the only witnesses used by the state and the only evidence tending to prove the commission of the crime.

It is argued this is not sufficient proof of the corpus delicti; that is, proof that defendant manufactured whisky. It has been held many times by this court, in accordance with the general rule of law, that in a criminal case, a conviction cannot be had on the extrajudicial confession of a defendant without evidence aliunde of the corpus delicti. It is further generally held that the corpus delicti need not be proven by direct and positive evidence, but may be proven by circumstantial evidence, independent of the admissions or confession of the defendant. Frazier v. U. S., 2 Okla. Cr. 657, 103 P. 373; Green v. State, 7 Okla. Cr. 194, 122 P. 1108; Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Marston v. State, 9 Okla. Cr. 275, 131 P. 716; Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L. R. A. 1917A, 1287; Francis v. State, 16 Okla. Cr. 543, 185 P. 126; Henry v. State, 14 Okla. Cr. 189, 169 P. 658; Boyle v. State, 27 Okla. Cr. 196, 226 P. 389.

Applying the rule of law announced in these cases to this evidence, we think there is no sufficient proof independent of the admissions and confession of the defendant of the manufacture of intoxicating liquor, and that the evidence is insufficient to sustain the verdict.

The record further discloses that in the argument of the case the assistant county attorney conducting the prosecution in his opening argument said:

“There is not much controversy in this case; in fact, nothing is in controversy, because everything the state has stated has been proven and stands unimpeached. The testimony in effect has not been denied.”

This borders very strongly on a comment on the failure of the defendant to take the stand and testify in his own behalf. Then counsel for defendant in his argument to the jury said that the presumption of innocence followed the defendant throughout the trial, and that the defendant did not have to take the stand to refute anything that was testified to by the state. Then in the closing argument the county attorney repeatedly commented on the failure of the defendant to take the stand and testify, and, among other things said:

“There is one man in the courtroom that knows what the dead man was doing out there, and he refuses to go on the stand and tell you what he was doing. Why didn’t he go on the stand and refute what these witnesses said? It was because he would have to commit perjury or some other crime.”

Exceptions were properly saved.

It is by statute made reversible error for the county attorney to comment upon the fact that a defendant failed to testify. Section 2698, Comp. St. 1921. The statute has been many times considered and upheld by this court. The remarks made by the assistant county attorney in concluding the argument were invited by the argument of the defendant counsel. A defendant will not be heard to complain that the state counsel comments- on the failure of the defendant to testify when he himself opens this question in his argument to the jury, where the comments of the county attorney are in answer to his argument.

For the reason there is no independent proof of the corpus delicti, the case is reversed and remanded.

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


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    HARRY EMMONS v. STATE.
    No. A-5224.
    Opinion Filed Dec. 26, 1925.
    (241 Pac. 1107.)

      Freeman E. Miller, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant.

Several contentions are made in the brief of defendant, some of which are not borne out by the record. Before going to trial the defendant filed a motion to suppress and exclude evidence obtained by virtue of the search warrant, for the reason that the affidavit is insufficient, and the warrant thereon was illegal and without authority of law, which motion was overruled, and exceptions taken. Treating the affidavit as sufficient in form, it alleges that intoxicating liquors are kept on the southwest quarter of section 1, township 19 north, range 2 east. The search warrant based on said affidavit authorizes a search of the southwest quarter of section 1, township 18 north, range 2 east. There is no explanation in the record of this discrepancy between townships 18 and 19, nor any attempt made to show that there was a clerical error. There is no allegation of the name, nor other designation of the premises to be searched, nor the name of the owner or occupant, but only the bare numerical description. The law provides that no warrant for search shall issue but upon- probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched and the person and thing to be seized. Section 7012, Comp. St. 1921.

, The place to be searched, as fixed by the search warrant in this case, is six miles from the land described in the affidavit which is the basis of authority for issuance of the search warrant. The search warrant must substantially conform to the affidavit in designating the place to be searched. Surely property in section 1, township 18, does not follow substantially a description of property in section 1. township 19. Under this search warrant the residence of the defendant was searched, although the affidavit does not mention any building or the name of any person residing on the land designated in the affidavit. The discrepancy in the description cannot be reconciled. There being no affidavit describing the southwest quarter of section 1, township 18 north, rang'e 2 east, nor any building thereon, the search warrant was invalid, and the admission of the evidence obtained by such search warrant, over timely objection, as made in this case, is prejudicial error. The motion to suppress should have been sustained.

■ The case is reversed and remanded.

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


text:
    BYRON DRAKE v. STATE.
    No. A-5336.
    Opinion Filed Dec. 28, 1925.
    (242 Pac. 286.)
    S. B. Garrett, for plaintiff in error.

      The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that Byron Drake did, in Jackson county, February 9, 1924, unlawfully transport and convey “corn whisky in the quantity of one quart, in a one-half gallon glass container, from a point about 60 feet south of the Moore & Tinsley gin office in the town of Olustee” to the door of said gin office.

On the trial the jury returned a verdict of guilty, leaving the punishment to the court. October 1, 1924, the court sentenced the defendant to pay a fine of $125 and be confined in the county jail for 40 days. To reverse the judgment, he appeals and assigns as error that the evidence is insufficient to support a verdict, and that the court erred in the admission of illegal and incompetent evidence, and in permitting the introduction in evidence of a certain box and glass jar alleged to contain corn whisky, which was seized by the officer without a search warrant.

Eugene Tinsley, 13 years old, testified that he was standing about 60 feet from his father’s gin office when a Ford car drove up and stopped and Byron Drake got out and took an inner tube box and gave it to Frank Drake; the other man in the car drove on; then they went into the gin office; that it was about 4 o’clock; that he had come from school to the gin; that after they left he went in the gin office and found a box on some sacks of cotton and a jar in the box containing about a quart of whisky; that later he told Mr. Bledsoe where it was; that the box he found was red like the box offered in evidence; that it looked just like that box.

On cross-examination, he stated he could not remember whether it was Friday or Saturday; that, when he went back to the gin, Mr. Bledsoe was there, and said he could • not find it, and he got it for him in the back room; that he had often seen whisky in the gin office before, sometimes every day; that Mr. Moore and his dad both used whisky, and Mr. Richardson sometimes and Mr. Howard, the bookkeeper, sometimes took a little; that his testimony in this case was the same as on the trial of Frank Drake.

The testimony of R. B. Bledsoe, deputy sheriff, as a witness in the companion case of Frank Drake v. State, was read to the court and jury as follows:

“R. B. Bledsoe, deputy sheriff, testified that he seized about a quart of whisky in the Moore & Tinsley gin office, which was in half-gallon jar and a box, and identified the same by a label placed on the jar; that he did not have a search warrant.”

It appears from the record that the testimony of this witness and the box and jar containing whisky were admitted in evidence over the defendant’s objections on the ground that the officer exceeded his authority when he searched the gin office without a search warrant.

For the defense, Frank Drake, brother of the defendant, Byron Drake, testified he was visiting his mother in the town of Olustee, on account of her sickness; that with his brother, Byron, he was walking down town when a man in a Ford asked them to ride, and they got in the car and rode down to the gin office'; that they were looking for their brother, J. S. Drake, who lives 12 miles southwest of Olus-tee, and who had come in that day to visit their sick mother; that he did not carry any box or carton from the car to the gin office, nor did his brother; that he was arrested and tried for this same offense and was acquitted; that the first time he ever saw the box, Bob Bledsoe, deputy sheriff, had it at Olustee; that his testimony in this case is the same as that given as a witness in his own behalf on his trial.

Byron Drake, as a witness in his own behalf, testified that his age was 25 years, was bom and had lived in Olus-tee all his life; that with his brother, Frank, he left home, and, after walking about two blocks, somebody came along and asked them to ride, they got in the car and the man drove to the gin office; there they got out, and he stepped to the door of the gin office, and his brother went in;. that neither had a package of any kind at the time; that the first time he ever saw the package was when it was introduced in evidence.

Upon a careful examination and consideration of the testimony in the case, we are inclined to think that, even If its competency be admitted, it is insufficient to support the verdict. When we recall the presumption that the law always indulges in as to the innocence of one accused and the necessity of establishing the guilt of a defendant beyond a reasonable doubt, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant upon the ground that the evidence was insufficient.

The second contention is based on the admission of evidence secured by an illegal search. This court lias held that, where the possession of an unlawful thing is open and obvious, so that any one within reasonable distance can readily see it, no search warrant is necessary, and the evidence thus obtained may be received upon the trial of an accused. However, a search implies investigation and acquiescence, and that implies some sort of force, active or constructive, much or little. The right of the citizen to be secure in his person and property from such unlawful search and seizure is as secure as the Bill of Rights can make it '(Const, art. 2, § 30), and this right should be respected by officers and courts (Klein v. State, 26 Okla. Cr. 173, 223 P. 201; Gore v. State, 24 Okla. Cr. 394, 218 P. 545).

It follows that the court erred in admitting the evidence over the defendant’s objections.

For the reasons indicated, the judgment of the lower court is reversed.

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


text:
    Ex parte FAY HANKINS et al.
    No. A-5004.
    Opinion Filed Dec. 28, 1925.
    (241 Pac. 1117)
    John T. Livergo&d, for petitioner.
   PER CURIAM.

On January 30, 1924, a petition was filed in this court, wherein it is alleged that Fay Hankins and Everett See are detained and unlawfully imprisoned in the county jail at Tecumseh, by Grover C. Butler, sheriff of Pottawatomie county; that the cause or pretense of such restraint is as follows: That petitioners were jointly informed against in the county court of Pottawatomie county for the offense of petit larceny, and, without being allowed an attorney to represent them, then and there entered their plea to trespass, but did not enter their plea to petit larceny ; that they are minors, and did not understand the full meaning of being arraigned — and praying for a writ of habeas corpus. On the same day a rule to show cause issued, made returnable before L. G. Pitman, judge of the superior court of Pottawatomie county, in the courtroom of said court at Shawnee, on the 4th day of February, 1925. From the return made to this court, it appears that on March 11, 1925, a hearing was had on the rule to show cause, and writ denied.


text:
    STATE v. A. T. INGRAM.
    No. A-5238.
    Opinion Filed Dec. 28, 1925.
    (241 Pac. 1118.)

      The Attorney General, Wm. Green, Co. Atty., and I. L. Lockowitz, Asst. Co. Atty., for the State,
   PER CURIAM.

The information in this case, filed in the district court of Muskogee county, November 24, .1923, charges that A. T. Ingram, on the 19th day of October, 1923, in Muskogee county, did feloniously set fire to'and burn a house, the property of one A. T. Ingram, with the intent to defraud the insurers of said house, to wit, Pennsylvania Fire Insurance Company and Fidelity Phenix Insurance Company of New Jersey. On the trial, at the close of the case for the state, defendant asked- the court to advise or direct the jury to return a verdict of not guilty, upon the grounds that the proof in the case wholly failed to sustain the charge in the information, which motion was sustained by the court, and the jury returned their verdict finding the defendant, A. T. Ingram, not guilty. Thereupon the court rendered judgment discharging the defendant. The case comes to this court under the third subdivision of section 2807, C. S. 1921, by filing in this court, July 7, 1924, a petition in error with case-made. No brief has been filed. When the case was called for final submission, the Attorney General moved that the cause be dismissed. It is so ordered.


text:
    J. L. HANCOCK v. STATE.
    No. A-5342.
    Opinion Filed Dec. 29, 1925.
    (241 Pac. 1108.)

      Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the 'State.
   DOYLE, J.

This appeal is from a judgment of conviction, rendered on the verdict of a jury finding the defendant, J. L. Hancock, guilty of transporting intoxicating liquor as charged in the information, second offense, and fixing his punishment at a fine of $250 and imprisonment in the penitentiary for a term of five years at hard labor. The information charged that:

“Anterior to this presentment, the said J. L. Hancock was duly charged by information in the county court of Carter county with the unlawful possession of intoxicating liquor, and that on April 3, 1922, the said J. L. Hancock entered his plea of guilty and was convicted and sentenced by said court. That subsequent to the above conviction the said J. L. Hancock, in the county and state aforesaid, did willfully, unlawfully, and feloniously commit the crime of transporting intoxicating liquor, to wit, one-half gallon of corn whisky, on and upon the public highway of Carter county, the highway running from the city of Ardmore to the hangars, north of the city, from a point on said highway to a point unknown to informant.”

The evidence shows that on the night of January 4, 1924, there was a dance at the home of the defendant, and E. J. Cowles, deputy sheriff, and Cliff Keirsey, concealed themselves nearby; about 11 o’clock a car came up to the house, and the defendant got out of the car; Officer Cowles searched him and found nothing; Frank MePheteridge, who was driving the car, got out on the other side and had a half gallon of whisky; the officers arrested the occupants of the car.

The evidence offered to show a former conviction is as follows:

Mrs. Fay Wallace, deputy court clerk, testified:

“The appearance docket shows that on April 3d the defendant pleaded guilty and was fined $50 and 30 days in jail.”

The defendant moved to strike the answer as incompetent, irrelevant, and immaterial.

“The Court: Overruled. This is being admitted on the statement of the county attorney that he would introduce the journal also.”

She then produced the files in the case of State v. L. J. Hancock, including the information charging L. J. Hancock with the possession of 3 1-2 gallons of whisky with the unlawful intent to sell the same, stating that she was not present when the plea of guilty was entered, and did not know whether “L. J. Hancock” and “J. L. Hancock” were the same person; that Judge Winfrey, deceased, was judge at the time, and all she knew was just through Judge Winfrey, who gave her this plea himself after court; that there was no journal entry of judgment of conviction ever entered: that J. L. Hancock paid the fine in the “L. J. Hancock” case.

At the close of the state’s case, there was a motion for a directed verdict by the defendant, in the form of a demurrer to the evidence. In response to this the court said:

“The demurrer is overruled, and your exceptions allowed. Unless a complete record is shown, that this man did make that plea, and show that he paid that fine and served his time in jail, I will sustain the demurrer later on.
“The County Attorney: We have already shown, your honor, that he entered his plea, paid his fine, and served his jail sentence.
“The Court: All right. What says the defendant?
“Mr. Sigler: The defendant rests, and excepts to the refusal of the court to direct a verdict of not guilty.”

In view of the state of the record offered to prove a former conviction, it is manifest that no proper proof of a former conviction was made in this case. In Martin v. State, 30 Okla. Cr. 49, 234 P. 795, the precise question here presented was determined. The reason for the rule and the authorities in support of it are there fully given, and it is useless to here repeat them. It follows that a motion for a directed verdict should have been sustained.

Error is assigned on improper remarks of the county attorney and his assistant in their arguments to the jury, and the rulings thereon of the trial court. It appears that, in the course of his closing argument for the state, the county attorney used the following language:

“Mr. McPheteridge lives in this county, and why don’t they have him here to exonerate Hancock?”

The objections of counsel for the state were by the court overruled and the county attorney directed to “go ahead.”

The rule is well established in this state that it is error for the prosecuting attorney in argument to refer to the fact that a codefendant had not been called as a witness. Hopkins v. State, 11 Okla. Cr. 385, 146 P. 917.

It would serve no useful purpose to consider the remaining assignments of error.

For the reasons stated, the judgment of the lower court is reversed.

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


text:
    CLAUD FRAZIER v. STATE.
    No. A-___
    Opinion Filed Dec. 31, 1925.
    (241 Pac. 1109.)
    Lunsford, Bulgin & Windham, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Le Flore county, May 20, 1924, Claud Frazier did transport two and one-half gallons of whisky from some point unknown to the county attorney to the waiting room of the Kansas City Southern Depot in the town of Heavener. On the trial the jury returned a verdict finding him guilty as charged in the information, and fixed his punishment at a fine of $50, and confinement in the county jail for 30 days. From the judgment he appeals, and assigns as error that the verdict is contrary to law and the evidence, and that the court erred in admitting incompetent evidence. No brief has been filed, and no appearance made in behalf of plaintiff in error in this court.

The undisputed facts are that on the date alleged the defendant drove into the town of Heavener and stopped at a hotel, and then carried a grip to the depot and placed it in a locker. The chief of police testified that he spoke to him on the platform, and told him that he understood he had some whisky, and the defendant said, “Yes, I have two and one-half gallons” in a grip; that he went in and took the grip from the locker, and delivered it to the officers, saying that he was carrying it to the sheriff of the county.

E. A. Robinson, constable at Heavener, testified that he was with the chief of police when the grip was opened, and it contained four half-gallon jars of corn whisky and two pints.

Counsel for the defendant objected to the testimony on the ground that the action of the officers constituted an unlawful and unreasonable search and seizure because no evidence of a search warrant was introduced in the case, which objection was overruled.

As a witness in his own behalf, the defendant testified that he was a constable of Spiro township, Le Flore county; that he got on the train at Spiro, and went to Howe, and from there went to look at some land that he was on a trade for, and while looking over the land ran upon a still, and the fellows there ran away from the still, and there were four half-gallon fruit jars and two pint bottles of whisky there, and he put them in a tow sack and put them in his car and drove back to Howe, and from there he drove to Heavener, intending to turn the whisky over to the sheriff of the county and to notify him about finding the still; that he told the officers who arrested him that he had the whisky and was transporting it for this purpose.

The objection to the competency of the evidence for the state was properly overruled, in view of the fact of the defendant’s statement that he willingly informed the officers that he had the whisky in his possession as an officer of the law.

An examination of the instructions shows that the issue of good faith on the part of the defendant was properly submitted to the jury as a question of fact for their determination.

Finding no error prejudicial to the defendant, the judgment of the lower court is affirmed.

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


text:
    KINK EPPERSON v. STATE.
    No. A-5315.
    Opinion Filed Dec. 31, 1925.
    (242 Pac. 276.)
    F. R. Burns, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Kink Epperson, was convicted in the district court of Ottawa county on an information charging that in said county, on the 6th day of October, 1923, the said defendant did unlawfully and felo-niously sell to W. B. Huddle, one half pint of whisky, for a consideration of $1.50, and charging that anterior thereto, said defendant, being duly charged, was tried and convicted of unlawful possession of intoxicating liquor in the county court of said county, and was by the judgment of said county court, in accordance with the verdict of the jury on the 11th day of July, 1923, sentenced to pay a fine of $200 and be confined in the county jail for 30 days.

The jury failed to fix the punishment. On May 10, 1924, the court -rendered judgment, and sentenced the defendant to be confined in the penitentiary at McAlester for the term of 2 years and 6 months and to pay a fine of $200.

From the judgment, an appeal was perfected by filing in this court, on October 7, 1924, a petition in error with a partial transcript of the record proper, duly certified by the court clerk of said district court.

The defendant is not represented in this court, and no brief in support of the assignments of error has been filed.

We have examined the information, the instructions of the court, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

The judgment of the lower court is therefore affirmed.

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