text:
    JOHN MARTIN v. STATE.
    No. A-4987.
    Opinion Filed April 8, 1925.
    (234 Pac. 795.)
    (Syllabus.)
    Habitual Criminals — Evidence of Former Conviction Insufficient. In a prosecution where it is sought to impose the increased punishment prescribed by statute (section 6991, Comp. St. 1921) for second and all subsequent convictions, for the violation of any provision of the prohibition enforcement act, held, evidence insufficient to support the verdict and judgment of conviction, in that no proper proof of a former conviction was made.
    Appeal from District Court, Ottawa County; J. J. Smith, Judge.
    John Martin was convicted of unlawfully transporting intoxicating liquor, second offense, and he appeals.
    Reversed.
    F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged “that on the 12th day of January, 1921, said defendant was duly charged by information filed in the county court of said Ottawa county, case No. 1140, with the unlawful possession of intoxicating liquor, on the 11th day of April, 1920; that thereafter, on the 16th day of April, 1921, said cause coming on regularly for trial, said defendant was by a jury duly impaneled and sworn to try said cause found guilty as charged in said information, and was thereupon by said county court on April 18, 1921, sentenced to imprisonment in the county jail of said county for a period of 30 days and to pay a fine in the sum of $300, and thereafter, on or about the 24th day of March, 1923, the said defendant then and there being did then and there willfully, unlawfully, and feloniously transport two one-half pints of whisky from some unknown place within the state of Oklahoma to another place, just north of Henry Manifold’s Plumbing Shop between Third and Fourth street on Main street in the city of Picher, Ottawa county.” On the trial the jury returned a verdict finding him guilty as charged in the information, and fixing his punishment at imprisonment in the penitentiary for a term of 3 years and a fine of $50. From the judgment returned on the verdict he appeals.

Of the various errors assigned and argued in the brief we deem it only necessary to consider the one that the evidence is insufficient to sustain the conviction, in that no proper proof of a former conviction was introduced in the case. The evidence offered to show that defendant had been formerly convicted is as follows:

Geo. M. Henderson, court clerk, called as a witness for .the state, produced the files in case No. 1140, including an information jointly charging John Martin and Jimmie Farr with unlawful possession of intoxicating liquor, to wit, two gallons of Jamaica ginger, and the verdict of the jury filed April 16, 1921. He then testified as follows:

“Q. I will ask you to examine the Minute Book 2A. (Over defendant’s objection the same was read into the record.) ‘No. 1140. Defendant present and sentenced to pay a fine of $300 and costs, and to serve 30 days in the county jail. Commitment ordered issued.’
“The Court: Is that the sentence pronounced on the verdict of the jury by the court verdict already identified by you as Exhibit ‘B’? A. Yes, sir.
“(The defendant moves that the record and testimony of the witness be stricken, for the reason it is incompetent.)
“The Court: Request denied. (Objection overruled. Exception.)
“Q. That is on page 374? A. Yes, sir; under date April 18, 1921.
“Q. I wish you would turn to page 380 and see what you find with reference to case No. 1140 and under what date? A. Under date July 5, 1921, case No. 1140 appears to have been set for trial July 18, 1921.
“Q. Turn to page 385 and see what you find there under date of July 18, 1921, with reference to case No. 1140. A. Case No. 1140 was stricken from the trial calendar on July 18, 1921. This particular case was, yes, sir.
“By the Court: Let’s get down to business now. Can you tell from your records whether this man was sentenced on this charge or not? A. I can’t tell whether it is Martin or the other man that was sentenced.
“The Court: Now have you the record showing whether the commitment issued or not? A. The docket shows that the commitment was issued on that date, but the docket does not show whether it was issued for Martin or Farr, there is not anything to tell who it was issued for.
“Mr. Church: Q. Now, I wish you would turn to page 405 and see what you find there. A. On page 405, case No. 1140 appears to have been set for October 17, 1921, and then for some reason or other a line was drawn through the number and the date that was noted there. On page 541, shows that it appears to have been reset for November 24th.
“The Court: Do you deny he was convicted? You don’t deny the records here?
“Mr. Church: No, I admit the records.
“The Court: It is immaterial whether he served it or not?
“Mr. Church: Not necessarily, he might have had a new trial.
“The Court: I will ask you if you can tell from that record there, Minute Book 2A, on the pages I have referred to who' the defendant was in case No. 1140? A. No, sir; not by just this record I can’t do it.
“Q. Now can you tell by looking at your appearance docket who that commitment was issued for? A. No.
“Q. It don’t name the defendant, A. No.
“Q. Was there any journal entries in the files there of case No. 1140? A. No, sir.
“The Court: Ever file a journal entry in a criminal case? A. Yes, sir.”

Section 6991, C. S. 1921, reads as follows:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary.”

In the case of Gilmore v. State, 3 Okla. Cr. 639, 108 P. 416, 139 Am. St. Rep. 981, it is said:

“In its ordinary sense the term ‘conviction’ is used to designate that particular stage of a criminal prosecution, when a plea of guilty is entered in open court, or a verdict of guilty is returned by a jury. But in a strict, legal sense it denotes the final judgment of the court,” and “imports the final consummation of the prosecution, from the complaint to the judgment of the court by sentence.”

In Ex parte White, 28 Okla. Cr. 180, 230 P. 522, it was held:

“The term ‘conviction,’ in article 6, § 10, of the Constitution, relating to pardons and paroles denotes the final judgment of the trial court, upon a plea of or verdict of guilty.”

The case of Browder v. State, 15 Okla. Cr. 287, 176 P. 96, was a prosecution under the statute imposing a more severe punishment for a second or any subsequent conviction, and the only proof offered to show a conviction was the verdict returned by the jury on the trial of the case. It was held that—

“Evidence insufficient to support the verdict and judgment of conviction, in that no proper or competent proof of a former conviction was introduced in evidence.”

In view of the state of the record offered to prove a former conviction, as alleged in the information, it is manifest that no proper proof of a former conviction was offered in this case, and for this reason the trial court should have directed a verdict for the defendant.

The judgment is accordingly reversed.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    R. E. MILES v. STATE.
    No. A-4779.
    Opinion Filed April 11, 1925.
    (235 Pac. 260.)
    (Syllabus.)
    1. Searches and Seizures — Forcible Search of Person Without Warrant on Suspicion an “Unreasonable Search.” The forcible searching of a person without a warrant or a search warrant, on the mere suspicion that the person searched has liquor in his possession, is “unreasonable” and in violation of section 30, art. 2, of the state Constitution.
    2. Evidence — Evidence Procured Through Unlawful Search of Person Inadmissible. Evidence procured by means of an unlawful-search of a person cannot be used against him, when timely objection to its introduction is made.
    Appeal from Municipal Criminal Court of City of Tulsa; G. E. Warren, Judge.
    R. E. Miles was convicted of conveying intoxicating liquor, and he appeals.
    Reversed and remanded.
    Moss & Farmer, for plaintiff in error.
   EDWARDS, J.

This is an appeal from the municipal criminal court of the city of Tulsa, from a conviction on a charge of conveying intoxicating liquors, rendered against the plaintiff in error on the 23d day of May, 1923, in which he was convicted and sentenced to pay a fine of $500 and to serve 6 months in the county jail. The error complained of is that the court permitted evidence obtained by an unlawful search of the person of the plaintiff in error to be admitted in evidence. The evidence is very brief; only two witnesses having been called by the state and none by the plaintiff in error.

The record discloses that plaintiff in error was stopped and searched at the Kennedy building in the city of Tulsa by two members of the city police detective department, and that they had no warrant either for the arrest or the search of the plaintiff in error; the evidence of the witness Ellis on that point being as follows:

“Q. Did you have a warrant for his arrest, Mr. Ellis? A. Not at that time. Q. Did you have a warrant at the time you arrested him and placed him in custody? A. No, sir. Q. Did you have any search warrant at all? A. Not at that time. Q. Did the officer who was with you have a warrant for his arrest? A. No, sir. Q. Did you have a search warrant for the place where he was arrested? A. No, sir. Q. You didn’t know, Mr. Ellis, until you had searched the defendant’s person, that he did have any whisky on his person did you? A. No; I didn’t see any whis-ky up to that time. Q. What you actually did was that you arrested the defendant merely on the suspicion that he did have whisky upon his person? A. Yes, sir.”

The other witness, Ealy, testified on this point as follows:

“Q. Did you have a search warrant for anybody at the Kennedy building? A. No, sir. Q. Did you have any warrant for the arrest of this defendant? A. No, sir. Q. Did Mr. Ellis? A. No, sir. Q. Did you have a warrant for his arrest? A. No, sir. Q. Eventually, when you did arrest him, you did it merely upon the suspicion that he had liquor? A. Yes, sir.”

Timely objection was made to the introduction of the evidence in question, and its admission is assigned as error. Section 30, art. 2, of the Bill of Rights of the state Constitution provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated. Regard for this provision of the Constitution sometimes makes it difficult for officials to prevent the commission of offenses or to procure evidence of their commission, particularly in the case of violations of the liquor law. But zeal in the enforcement of the law is not a justification for oppression nor for the violation of constitutional guaranties. The violation of this provision of the Constitution against unreasonable searches and seizures has had the attention of the courts frequently. It is well settled in principle that searches of the person, houses, or effects of an individual under the circumstances shown by the evidence in this case is a violation of this constitutional right. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Baker v. State, 28 Okla. Cr. 408, 231 P. 320; Committi v. State, 28 Okla. Cr. 380, 231 P. 316, and authorities there cited; Boyd v. U. S., 116 U. S. 619, 6 S. Ct. 524, 29 L Ed. 746; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Stanley v. State, 82 Okla. 294, 200 P. 229; Hess v. State, 84 Okla. 73, 202 P. 310.

Without again going into and reviewing the authorities on this question, we hold that under the evidence the constitutional right of the plaintiff in error was violated, and the case must therefore be reversed.

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


text:
    CHARLES TIPTON v. STATE.
    No. A-4651.
    Opinion Filed April 11, 1925.
    (235 Pac. 259.)
    (Syllabus.)
    1. Trial — Right oí One Arraigned to Be Informed of Bight to Counsel and to Preliminary Trial. On the arraignment of a defendant, who appears without counsel before a magistrate on a charge of felony, it is the duty of the magistrate to fully inform the defendant of his right to counsel and of his right to a preliminary trial. Section 2484, Oomp. St. 1921.

      2. Arraignment and Pleas — Plea of Guilty not to Be Accepted Until Accused Advised of Legal Rights and Consequences of Plea. a plea of guilty should be entirely voluntary and should not be induced by fear, persuasion, promises, or ignorance, and should not be accepted until after the defendant has been fully advised by the court of his legal rights and the consequences of his plea.
    3. Same — Refusal to Permit Accused to Withdraw Plea of Guilty Held Abuse of Discretion. Under the record in this case, it was an abuse of discretion to overrule the application of the defendant to withdraw his plea of guilty and to permit him to to enter a plea of not guilty.
    Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
    Charles Tipton was convicted of assault with a dangerous weapon, and appeals.
    Reversed and remanded with instructions.
    George W. Carry and E. T. Barbour, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, according to his position in the lower court.

The record discloses that the defendant was a negro of the age of 19 years at the time of the crime charged. On the 3d day of April, 1923, he became engaged in an altercation with one Holtzclaw, a street car conductor in Oklahoma City, and in such altercation cut Holtzclaw with a knife. He was charged with the offense of felonious assault with a deadly weapon. The offense occurred about 7 o’clock. The defendant was arrested about 7:30 and taken to the city jail, kept until about 9 o’clock, and taken to the office of the county attorney, and from there taken before a justice of the peace and again taken to the county attorney’s office, and from the county attorney’s office before the district court, where he entered a plea of guilty and was sentenced to five years in the penitentiary at Granite. He was not represented by nor had consulted an attorney at this time. From the time of his arrest until his sentence was a matter of only an hour or two.

On the 5th day of April, the defendant filed his motion to vacate and set aside his plea of guilty and the judgment and sentence based thereon, and alleged that it was procured by force, threats, and intimidation; alleged that he was not guilty of the offense charged, and that the judgment and sentence was in violation of his statutory and constitutional rights.

Upon this application a hearing was had and evidence taken. The defendant testified substantially as set out above; and further that he was not asked if he wanted or had an attorney, and that nothing was said to him about a preliminary, and that the plea was entered because of threats, and that he desired a trial before a jury; that he was not guilty, but in the commission of the act complained of acted in self-defense. The justice of the peace testified that the defendant was arraigned before him and entered a plea of guilty, and that nothing was said about a preliminary, and no bond was fixed. The law requires that when a person charged with the commission of a felony is arrested he shall be taken before the magistrate who issued the warrant or some other magistrate in the county, and it is the duty of the magistrate to inform the person brought before him of the charge against him, of his right to the aid of counsel, and he is entitled to time to procure counsel, or his right to waive an examination, and unless an examination is waived the magistrate shall conduct a preliminary examination and, upon the conclusion of the examination, shall either hold the accused for trial or shall discharge him, and if the offense charged is bailable shall fix the amount of bail.

In a case where an accused is under the age of 21 years, particular care should be taken by the county attorney, magistrate, and other officers to safeguárd the rights of the accused and to see that no-advantage is taken of his youth and inexperience. If it be conceded that a minor can waive his constitutional and statutory rights and enter his plea of guilty as was done in this case, the granting of permission to withdraw the plea of guilty would rest in the sound discretion of the trial court. Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298; Hart v. State, 29 Okla. Cr. 414, 233 P. 1095; Mullen et al. v. State, 28 Okla. Cr. 218, 230 P. 285.

But where, under such circumstances, a plea of guilty is entered, a defendant should be informed of his right to counsel at every stage of the proceedings— of his right to a preliminary and to make bond if the charge is bailable. There should be no unseemly haste. Trifling with the court by entering and withdrawing pleas is not to be tolerated; but, under the record above recited, we believe it was an abuse of discretion to deny the defendant’s request to withdraw his plea of guilty. Without determining whether the proceedings up to the time of entering the plea of guilty in the district court constituted due process of law, we believe that such a state of facts is shown that makes it appear that the plea of guilty was entered hastily without proper safeguards, without deliberation, and ignorantly by the defendant; that the court should have permitted the same to have been withdrawn upon the application made, even after judgment.

The cause is therefore remanded, with instructions to the lower court to set aside the plea of guilty and judgment entered thereon, and for the further proceedings not inconsistent with this opinion.

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


text:
    R. E. MILES v. STATE.
    No. A-4780.
    Opinion Filed April 11, 1925.
    (235 Pac. 261.)
    (Syllabus.)
    Searches and Seizures — “Unreasonable Search,” Evidence Inadmissible. On the authority and for the reasons assigned in No. A-4779, 30 Okla. Or. 54 (235 P. 260), just decided, this case is reversed and remanded.
    Appeal from Municipal Criminal Court, City of Tulsa; G. E. Warren, Judge.
    R. E. Miles was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Moss & Farmer, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error in this case was tried in the municipal criminal court of the city of Tulsa, on a charge of unlawfully transporting intoxicating liquor, and upon conviction was fined the sum of $500 and sentenced to imprisonment in the county jail for a term of six months. It is a companion case with No. A-4779, and all the evidence is substantially the same except that in this case only one witness testified for the state and none for the plaintiff in error, and is to the effect that the witness in question, a member of the police detective force of the city of Tulsa, without a warrant, searched the person of the plaintiff in error and found a bottle of whisky in his hip pocket. This constituted an unreasonable search of the person, and was a violation of the constitutional rights of the plaintiff in error, and, for the reasons assigned in the case of Miles v. State, No. A-4779, 30 Okla. Cr. 54, 235 P. 260, just decided, the case is reversed and remanded.

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


author: BESSEY, P. J.

text:
    A. B. C. DAVIS v. STATE.
    No. A-4828.
    Opinion Filed Feb. 4, 1925.
    Rehearing Denied April 11, 1925.
    (234 Pac. 787.)
    (Syllabus.)
    1. Searches and Seizure® — Seizure of Incriminating Articles in Possession of One Lawfully Arrested. The immunity guaranteed hy the provisions of the. Bill of Rights (Const, art. 2, § 30) against unreasonable searches and seizures does not extend to the tools, implements, and papers found on the person or in the possession of the person lawfully placed under arrest, where such tools, implements, or papers have, been, or manifestly may be, used to perpetrate th'e crime charged.
    2. Same — Seizures Under Warrant for Arrest, and Under “Search Warrant,” Distinguished. There is a well-defined distinction between the right to seize contraband goods and papers under authority of a warrant of arrest and under authority of a search warrant. Under a warrant of arrest a seizure may follow as an incident to the arrest; a ‘‘search warrant” is a kind of writ of discovery, and the arrest of the offender, if any, follows the discovery as an incident ancillary to it.
    3. Evidence — Articles Taken from Person Lawfully Arrested Ad-|inissible. Where the instrumentalities for committing the crime are taken from the person or possession of the person lawfully arrested, their introduction in evidence is ordinarily not objectionable as being in violation of the provision of the Bill of Rights (Const, art. 2, § 21) against requiring the accused to give testimony against himself.
    4. Searches and Seizures — Seizure Without Search Warrant of Cumbersome Articles in Possession of One Lawfully Arrested. Where the tools and instruments found in the possession of the person lawfully arrested are numerous or cumbersome, so that the officer making the arrest cannot at the time of the arrest take them with him, he may convey the prisoner to a place of safety and return to the place of arrest and seize the things found in the possession of the person arrested, without a search warrant.

      5. Evidence — 'Evidence of Other Offenses Admissible to Identify Accused, to Show System, Motive, or Intent. An exception to the rule of evidence that evidence of other offenses cannot be introduced to establish the commission of the offense charged arises where the other offense or offenses tend to identify the accused with the offense charged; or where such testimony is for the purpose of showing that the offense charged was a part of a system or common scheme or plan, including other like offenses; or where proof ' of a separate offense is explanatory of the motive or intent of the offender in the commission of the crime charged.
    6. Evidence — Excluding Testimony of Doubtful Value not Error. Where the relevancy and probative force of proffered testimony is vague, remote, and of doubtful value, its exclusion is not error.
    7. Evidence — Witnesses not Accomplices in Abortion Charged Need not Be Corroborated.' Rule that the testimony of accomplices must be corroborated not applicable..
    Appeal from District Court, Oklahoma County; A. S. Wells, Special Judge.
    A. B. C. Davis was convicted of murder, and he appeals.
    Affirmed.
    John R. Guyer, C. D. Peck, and Victor A. Sniggs, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

On April 1, 1923, a physician, A. B. C. Davis, plaintiff in error, herein referred to as the defendant, was in the district court of Oklahoma county, by a verdict of a jury, found guilty of the murder of Mary Sudik, accomplished by the use and employment of instruments upon her for the purpose of producing a criminal abortion. The punishment imposed by the jury was imprisonment for life. This appeal is from the judgment on the verdict, after the overruling of a motion for a new trial.

The evidence on the part of the state indicates that the defendant maintained an office, operating rooms, and rooms with beds for patients at 115V2 West Grand avenue, Oklahoma City; that Mary Sudik and her husband, Ernest Sudik, lived some miles southeast of Oklahoma City, on a truck farm; that early in February, 1923, Mary Sudik ascertained that she was pregnant, and that she and her husband thereupon endeavored to find some one who would perform an operation upon her to bring on a miscarriage; that after making some inquiries they were directed to go to the office of the defendant. Oil February 10th they accordingly went to defendant’s office and told him of Mrs. Sudik’s pregnancy and that she wished to be relieved from that condition. The defendant told them that he could do that kind of work; that it would not be dangerous; and they then entered into an agreement for the operation and the compensation to be .paid therefor. After the necessary preparation, the patient was placed upon the operating table and the operation performed, by means of certain instruments, culminating in an abortion. At the time of the operation, or in consequence of it, the patient became infected with blood poison which resulted fatally. Later the husband of the deceased woman returned to the office of the defendant and apprised him of .the fatal result of the operation. The defendant said he was sorry and offered the husband money, as he said,, to help defray the expenses of the funeral. The husband did not take any money at this time, but later complained to the county attorney of defendant’s treatment of his wife and her death. The countv attorney advised him to return to the office of the defendant and take any money which he might offer him, and this was accordingly done. Upon this second visit defendant gave to Mr. Sudik the sum of $50, but before paying it induced the husband to sign the following-written statement:

“Oklahoma City, Okla., Feb. 20, 1923.
“This will exonerate Dr. A. B. C. Davis from any blame concerning the illness or death of my wife, Mary Sudik, on February 12, 1923, near Moore, Oklahoma.
“Ernest Sudik.
“Witness Gus Sudik.”

Mr. Sudik then, according to a prearranged ■ plan, returned' to the county attorney’s office and turned over to the county attorney the money which Dr. Davis had given him, whereupon a warrant of arrest was issued for the defendant. Á deputy sheriff went to the defendant’s office, placed him under arrest, and conveyed him to jail. At the time of the arrest the officer seized a large quantity of ergot and other drugs commonly used to bring about miscarriages. Immediately after placing the defendant in jail, the officers returned to defendant’s office and seized and carried away some instruments and appliances commonly used to perform abortions. The officers at this time also seized and carried away a number of -written statements signed by divers women, the purport of which was that the persons signing these papers agreed to hold the defendant blameless for any dangerous or fatal results that might follow his treatment of them, and in all of which, by words or inference, it was indicated that the anticipated danger was caused by self-inflicted treatment or by operations performed by others. Many of the persons who had signed these-statements were later found by the county attorney and subpoenaed as witnesses for the state. They all testified that the defendant had performed operations upon them under circumstances indicating that his practice consisted chiefly in performing abortions. One of these witnesses was convalescing from such an operation in one of the beds in the room adjoining the doctor’s office at the time of his arrest; another one came there for an operation while the premises were in charge of the officers and were being searched by them, following the arrest. These several operations performed upon other women, as shown by the witnesses who testified at the trial, were performed at various times within the three or four months immediately preceding the time of the defendant’s arrest.

The defendant admitted that he had administered medical and surgical treatment to different women patients, but claimed that he did not commit nor attempt abortions upon any of them. . Concerning treatment given to these women, as shown by the statements exonerating him from serious or fatal results, the defendant claimed that these women all came to him after having attempted abortions upon themselves or after some other person had attempted to perform such operations upon them; and that the treatment the defendant administered wa§ only such as seemed necessary under all the conditions apparent. Defendant claimed that this was the case with the deceased, and that he did no more than administer to her such treatment as the case seemed to warrant.

The numerous assignments of. error urged in this appeal may be grouped thus:

(1) That the instruments, medicines, and documents seized and taken from the office of the defendant were inadmissible as evidence because they were ob-taind by illegal and unreasonable search and seizure; that using them as evidence was compelling the defendant to give evidence against himself.

(2) That the evidence of the several other abortions performed upon other women by the defendant near the time of the particular offense here charged was inadmissible.

(3) That the evidence of Mrs. Kinney, from which the jury might have drawn an inference that Mary Sudik may have procured the abortion elsewhere, or may have performed it herself, was improperly withdrawn from the jury.

(4) That there was no sufficient corroboration of the testimony of the several women who were self-confessed accomplices with the defendant in separate offenses.

(5) Misconduct of the county attorney.

The immunity guaranteed by the provisions of the Bill of Rights (Const, art. 2, § 30) against unreasonable searches and seizures does not extend to the tools, implements, and papers found on the person or in the possession of the person lawfully placed under arrest, where such tools, implements, or papers have been or manifestly may be used to perpetrate the crime charged. This provision was designed to protect persons from unwarranted invasions of the privacy of their persons and effects on mere suspicion without probable cause; but where one is legally arrested for a crime, upon authority of a valid warrant for his arrest, the warrant of arrest itself implies probable cause. Under such circumstances, it is not incumbent upon the officer who makes the arrest to procure a search warrant in order to search for the means or instruments of committing the crime, found in the possession of the person arrested.

There is a well-defined distinction between the right to seize contraband goods and papers under authority of a warrant of arrest and under authority of a search warrant. Under a warrant of arrest a seizure may follow the arrest as a proper incident to it; a “search warrant” is a kind of writ of discovery and the arrest of the offender, if any, follows the discovery as an incident ancillary to it. People v. Chiagles, 237 N. Y. 193, 142 N. E. 583, 32 A. L. R. 676, notes and annotations.

Nor is the introduction in evidence of the things so seized compelling the accused to give evidence against himself, within the purview of the Constitution (article 2, § 21). Berg v. State, 29 Okla. Cr. 112 233 P. 497; Ricketts v. State, 23 Okla. Cr. 267, 215 P. 212; Browne v. U. S. (C. C. A.) 290 F. 870; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 177; 2 R. C. L. 468.

The provisions of the Bill of Rights relating to unauthorized searches and seizures will not operate to make sacred the possession of bludgeons, knives, pistols, etc., found in the actual present possession of a person arrested for a violent crime, nor is there anything sacred about forged instruments, counterfeit bills, or notes found in the possession of one arrested for forgery or false pretense. Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, notes and annotations, 128 Am. St. Rep. 307; Baron v. U. S. (C. C. A.) 286 F. 822; People v. Chiagles, supra.

Where the tools and instruments found in the possession of the person lawfully arrested are numerous, or cumbersome, so that the arresting officer cannot at the time of the arrest take them with him, we see no reason why he may not convey the prisoner to a place of safety and return to the place of arrest and seize the things found in the possession of the person arrested, without a' search warrant, as was done in this case. Suppose an officer, upon authority of a valid warrant, arrested one for operating a whisky still, and while making the arrest, found the person arrested in possession of boilers, worm, condensers, and barrels containing mash in process of fermentation. These would be too cumbersome to carry away with the prisoner; reason would indicate that the officer might take the prisoner to jail, or other place of safety, and return and take possession of the apparatus and materials used, or to be used, in violating the law for which the offender was arrested; and these things might later be introduced in evidence against the person arrested.

In this case the medicines,’ instruments, and written documents explanatory of their use, taken from the defendant, were introduced in evidence, but later withdrawn from the consideration of the jury, upon the theory that the evidence was inadmissible because it had been procured illegally. The defendant complains that its exclusion near the end of the trial did not cure the error. But holding as we do that this evidence was competent, its subsequent withdrawal was to the advantage of the defendant. •

The defendant objected to the introduction of evidence tending to show that the defendant had a short time prior to the commission of the offense charged committed other abortions upon other women under like circumstances-.

An exception to the rule of evidence that evidence of other offenses cannot be introduced to establish the commission of the offense charged arises where the other offense or offenses tend to identify the accused with the offense charged; where such testimony is for the purpose of showing that the offense charged was a part of a system or common scheme or plan, including other like offenses; or where proof of a séparate offense is explanatory of the motives of the offender in the commission of the offense charged.'

The several women who. had signed statements exonerating the defendant were brought into court and unwillingly testified that the defendant had performed abortions for them and that the portions of the several written statements implying that they or some other person had first attempted to perform criminal operations upon them were false, under circumstances indicating that these false statements were signed and agreed to as conditions precedent to the performing of the operations by the defendant. The evidence of all these women indicated that the defendant was an habitual criminal abortionist and that these statements were so framed by him for his own self-protection, showing a similarity of method and intent in each. case.

In the ease of Barnett v. State, 104 Ohio St. 298, 135 N. E. 647, 27 A. L. R. 351, the court held:

“In a trial upon an indictment charging sodomy with a little girl six years of age, evidence of other like assaults upon other little girls, at or near the time charged in the indictment, is admissible to prove the habitual moral degeneracy and sexual perversion of the person committing such offenses and his criminal course of lascivious conduct, all for the purpose of identifying the defendant as the sexual pervert who committed the crime charged in the indictment.”

In the case of State of Kansas v. King, 111 Kan. 140, 206 P. 883, 22 A. L. R. 1006, it was held that where the dominant facts pertaining to three homicides were so similar in character, in apparent motive, in common purpose, and in obvious results, showing- that the victim disappeared and was never afterwards seen alive, and that the accused had possession in each case of the victim’s property- and intimate personal effects, and that the remains in each instance were found upon the premises occupied by the accused, all tending to show that the victims must all have died through violence by a common hand, the facts pertaining to these homicides, whether committed before or after the one for which the accused was on trial, were admissible for the purpose of ascertaining the identity of the slayer in the case on trial.

In the case of Lyman v. State, 136 Md. 40, 109 A. 548, 9 A. L. R. 401, it was held that in a prosecution for false pretense in obtaining property by means of a worthless check, evidence ÍS' admissible of the giving of similar checks by the accused to other persons at and about the time of the offense charged, as tending to show intent to defraud and a scheme to obtain goods wherever and from whomsoever possible. This principle of the law of evidence is copiously annotated in the volumes of A. L. R. cited, covering cases of burglary, homicide, larceny, robbery, and other offenses. And this rule has been adhered to in our own state. In the case of Winston v. State, 16 Okla. Cr. 648, 185 P. 832, it was held that where the defendant, a cashier of a railway company, was charged with the embezzlement of a specific sum of money on a certain day, evidence tending to show that he on numerous other occasions a short time previous thereto took other money from the railway company, which had come into his hands as cashier, was properly admitted, as indicating a system and regularity of embezzlements by the defendant from day to day, and as also tending to connect the defendant with the commission of the offense charged. Littrell v. State, 21 Okla. Cr. 466, 208 P. 1048; Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467; Hunter v. State, 3 Okla. Cr. 533, 107 P. 444; Miller v. State, 9 Okla. Cr. 255, 131 P. 717, L. R. A. 1915A, 1088.

The defendant complains that the testimony of Rebecca Kinney was improperly withdrawn from the jury. Mrs. Kinney stated that she lived at Snyder; that her husband was a farmer and she was a midwife; that she came to Oklahoma City frequently; that she was in Oklahoma City in February to consult with Dr. Smith; that she saw and talked to a woman in a building east of the White Swan Laundry, in the north part of town (Oklahoma City) on February 8, 1923, and that this woman said her name was Sudik; that she was a little, dark woman who looked like a foreigner; that she was wearing a dark suit and a small hat of some kind; that she did not remember the color of her eyes or her hair, but her eyes were bloodshot. In the absence of the jury, this woman was examined at length, in the course of which examination she said:

“She came into the room, and she says, ‘Will you do something for me? I am just dying.’ I said, ‘Child, what is the matter with you?’ Her face was red, and I said, ‘What makes your face so red?’ and she said, T have taken stuff and would rather die than have another child and bring it into the world to starve like we do,’ and I said, ‘What did you take?’ and she said, ‘Two boxes of Chichester pills and a quart of turpentine’; that it had brought her sickness on, and she showed me, and I told her to take lithia tablets and lots of water and go to bed, and I asked her if she had any one to take care of her, and she said she had her husband, and I told her to have him put her to bed and put lots of bedclothes on her and that would relieve her.” ,

At the close of the examination of this witness, the attorney for the state objected to her testimony because the witness did not know the deceased and her identification was insufficient; that the proffered testimony was incompetent and not explanatory of the incidents that occurred in the defendant’s office on February 10th. The objection was sustained, and the evidence of this witness was not permitted to go- to the jury.'

An examination of the 19 or 20 pages of this witness’ statements indicates that her testimony scarcely rises to the dignity of evidence. Its relevancy and probative force are so vague, uncertain, and remote that, if false, it would not support a charge of perjury.

There was no abuse of discretion of the trial court in refusing to let it go to the jury, and his ruling in so excluding it, under the circumstances, will not be disturbed. 10 R. C. L. “Evidence,” §§ 87, 88.

The defendant further complains that the testimony of the several women who said that the defendant had performed criminal abortions for them was that of accomplices in crime, and that their testimony must be corroborated by other evidence. These women were not accomplices in the particular crime for which the defendant was on trial, and some of the impelling reasons for the rule that the testimony of an accomplice in the crime charged must be corroborated are wanting. No authorities are cited in support of defendant’s claim in this regard, and we have been unable to find ány case in which it has been held that corroboration of a witness who was an accomplice with the accused in some other crime is necessary.

The misconduct of the county attorney, such as it was, was cured by the admonitions of the court.

The record shows that this defendant was a professional criminal abortionist, of tbe most reprehensible type. The offense in this case was aggravated by the fact that after the operation was performed he took no pains to avoid or prevent serious or fatal consequences.

The judgment of the trial court is affirmed. .

DOYLE and EDWARDS, JJ., concur.


text:
    JAMES BEVEL v. STATE.
    No. A-4590.
    Opinion Filed Feb. 28, 1925.
    Rehearing Denied April 11, 1925.
    (234 Pac. 653.)
    (Syllabus.)
    1. New Trial — Newly Discovered Evidence — Lacla of Due Diligence. It is a lack of due diligence for an accused to wait until the eve of the trial to procure process for his witnesses.
    2. Larceny — Discrepancy as to Age of Stolen Steer Held not Material Variance. Where an information alleges the theft of a yearling roan steer, and the proof shows a two year old-roan steer, the variance is not fatal.
    Appeal from District Court, Comanche County; A. S. Wells, Judge.
    James Bevel was convicted of larceny of live stock, and he appeals.
    Affirmed.
    C. R. Reeves, for plaintiff in error.
   EDWARDS, J.

The record discloses that on the night of the 3d day of December, 1921, the plaintiff in error, with another, committed theft of a steer, on the federal reserve in Comanche county, belonging to one Wilson, and butchered it, and, as they attempted to leave the reservation, were arrested with the beef in their possession. According to the evidence of the ■state, plaintiff in error claimed the beef as his, and shortly thereafter the officers returned to the reservation, where the hide of the steer in question was found hidden under some brush and leaves, with the “brand” cut out. The theory of the defense was that the plaintiff in error was in the employ of one Homer McDaniel, and believed McDaniel was the owner of the steer in question.

Various assignments of error are presented. First, that the court erred in instruction No. 3 in defining the elements constituting larceny; second, that the court erred in instruction No. 8, in that same was not warranted by the evidence, and was in conflict with instruction No. 6; third, that the court erred in the exclusion of evidence, and that there is a variance between the proof and the information; fourth, error of the court in overruling the motion for a new trial on the ground of newly discovered evidence; fifth, misconduct of counsel for the state in argument and in propounding questions to the witnesses.

No complaint is made as to the sufficiency of the information. No exceptions to the instructions appear in the record. The plaintiff in error’s objection to instruction No. 3, if available, would be erroneous if taken alone, but, taken in connection with instruction No. 8, in which the jury are told the essential elements necessary to be found in order to return a verdict of guilty, we think there is no merit in this connection. The instructions taken as a whole are free from any substantial error.

The information charges the plaintiff in error with stealing one roan yearling steer. Plaintiff in error contends that there is a variance as the proof shows that the steer in question was not a yearling steer, but was a two year old. But, admitting that the animal in question was two years old, we think that would not be such a variance as would prejudice the plaintiff in error. It is further contended that at the time the case went to trial plaintiff in error was informed by a deputy sheriff that certain of his witnesses had been subpoenaed, but that they in fact had not been subpoenaed, and plaintiff in error was deprived of their evidence. A praecipe for a subpoena for these witnesses was filed on October 9th for their attendance October 11th, and subpoena was issued on the 9th; it appears to have been served on the 11th. A party should not wait until the eve of the trial to have subpoena issued for his witnesses. No application for continuance was made. We have examined the record as to the purported testimony of these witnesses, and, if admissible at all, the evidence is not of sufficient importance to warrant a reversal of this case.

In the course of the trial the plaintiff in error was asked on cross-examination if he had before been convicted of stealing, and admitted that he had. This line of questioning and reference to it by the county attorney in his argument to the jury, as well as a reference to the covering of the hide with leaves, is urged as error. This was not erroneous under the record.

The case is affirmed.

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


text:
    A. C. FLOWERS v. STATE.
    No. A-4727.
    Opinion Filed March 7, 1925.
    Rehearing Denied April 11, 1925.
    (234 Pac. 652.)
    (Syllabus.)
    1. Jurisdiction — Order of District Court Transferring Indictment to County Court Sufficient to Give Latter Jurisdiction. Since the consolidation of the office of clerk of the district court and. clerk of the county court (section 5955, Compiled Stats. 1921), it is not essential that a certified transcript, as provided by section 2354, Compiled Stats. 1921, be made in order to transfer an indictment from the district court. The order of the district court, duly made, transferring such cause, will be sufficient to give the county court jurisdiction.
    2. Intoxicating Liquors — Unlawful Possession — Conviction Sustained. Record and evidence examined, and found to sustain the sentence and judgment.
    Appeal from County Court, Stephens County; Eu- ■ gene Rice, Judge.
    A. C. Flowers was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Bond" & Morris, and Orbie W. Johnson, for plaintiff in error.
   EDWARDS, J.

Ar indictment was returned by the grand jury of Stephens county charging the plaintiff in error with unlawful possession of whisky. The district court made an order transferring the case to the county court, and it was there tried. The jury returned its verdict, finding the plaintiff in error guilty and fixing his punishment. In the brief of plaintiff in error it is contended that the case was never legally transferred from the district court to the county court. It is further contended that the search of a house belonging to plaintiff in error without a search warrant was an unlawful search, and that the evidence was not sufficient to sustain the verdict.

The first assignment advanced by the plaintiff in error, that the court clerk did not certify the record and proceedings from the district court to the county court, and that the county court therefore did not acquire jurisdiction, has been before this court several times. The cases of State v. Clifton, 2 Okla. Cr. 189, 120 P. 1124, Yaltz v. State, 3 Okla. Cr. 20, 103 P. 1104, and Hendrix v. State, 5 Okla. Cr. 25, 113 P. 544, fully sustain the contention made. However, those decisions were rendered at a time when the clerk of the county court and the clerk of the district court were separate offices, and the functions performed by different officers. As the clerk of the county court had the custody of the records and papers in that court, it was then necessary that a cause transferred to that court from the district court should be accompanied by the papers, records, and documents pertaining to such cause; and in order that authenticity should not be questioned it was also necessary that they should be properly certified, and a certified transcript of the proceedings had in.the court from which the case was transferred should accompany them.

In 1915, however, the office of clerk of the district court, clerk of the county court, and clerk of the superior court, in any county in which there was a superior court, were consolidated. The officer taking the place of the various clerks enumerated was to be designated and known as “court clerk,” to perform all the duties provided by law for the various clerks of courts above set out. Section 5955, Compiled Stats. 1921. When that law became operative, the records, files, and proceedings of the district court were in the custody of the court clerk, and the necessity for the certificate required no longer obtained. The order of the court transferring the cause ipso facto operated as a transfer, and the certificate of the clerk of the district court, therefore, was not necessary to give the county court jurisdiction.

On the second contention of plaintiff in error, that there was an unlawful search, an examination of the record discloses that the sheriff or his deputies went to the house, which had a short time before been used by the plaintiff in error as a residence, with some legal process to close said house, and while there discovered a cache of whisky. Upon the trial of the case the whisky was not offered in evidence, and no objection to the testimony of the officers was made on the ground of unlawful search. The counsel for plaintiff in error in cross-examination went into the evidence in reference to the discovery of the whisky fully, and in the motion for a new trial no suggestion of an unlawful search is presented. We believe that if the evidence was prejudicial to the plaintiff in error, the objection has been waived.

Finding no error in the record that would warrant this court in disturbing the verdict and judgment, the case is affirmed.

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


author: DOYLE, J.

text:
    WILL GREEN v. STATE.
    No. A-4745.
    Opinion Filed April 11, 1925.
    (235 Pac. 250.)
    (Syllabus.)
    Intoxicajtmg Liquors — Attempt to Manufacture — Evidence Sufficient. In a prosecution for attempting to manufacture intoxicating liquor, evidence held to sustain a conviction.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Will Green was convicted of attempting to manufacture intoxicating liquor, and he appeals.
    Affirmed.
    E. J. Giddings, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that on or about the 4th day of November, 1922, Will Green and John Doe did have in their possession an apparatus commonly called a distillery described as follows: One copper cooker, pipe, cap and condenser, barrel, gasoline burner, six barrels, one five-gallon can containing gasoline, one hogshead containing mash, six barrels of mash then and there being in process of fermentation, all of which said mash and ingredients and distillery were for the purpose of manufacturing intoxicating liquor, to wit, whisky. Said defendants failing in the commission of said offense, in that they were prevented and intercepted in the perpetration thereof by the timely arrival of Officers John Harrison, Every, and Borden and others.

On his separate trial the jury returned a verdict finding the defendant Will Green guilty and fixing his punishment at confinement for 10 days in the county jail and a fine of $50. From the judgment entered on the verdict, he appeals.

A number of errors are assigned, but 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 examined the record and find it free from substantial error.

The judgment of the lower court is therefore affirmed.

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


author: PER CURIAM.

text:
    SAM WALL v. STATE.
    No. A-4741.
    Opinion Filed April 11, 1925.
    (235 Pac. 252.)
    (Syllabus.)
    Appeal and Error — Appeal not Perfected in Statutory Time Dismissed. When the time fixed by statute for taking an appeal has expired, this court does not acquire jurisdiction of the appeal, and such attempted appeal will be dismissed.
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    Sam Wall, convicted of unlawful possession of intoxicating liquor, appeals.
    Appeal dismissed.
    J. H. Harper, for plaintiff in error.
    iGeorge F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Sam Wall, was convicted on a charge that on the 3d day of September, 1922, he did have possession of intoxicating liquor, to wit, whisky, with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in jail for 30 days and pay a fine of $50. From the judgment rendered February 21, 1923, an appeal was attempted to be taken by filing in this court on June 22, 1923, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal as follows:

“Because the record shows that the judgment of conviction was rendered in this case on the 21st day of February, 1923, and that the case-made herein was not filed in the office of the clerk of this court until the 22d day of June, 1923, and after the 120 days had expired in which to perfect said appeal as required by section 2808, Compiled Oklahoma Statutes 1921. Wherefore said Attorney General says that this court is without jurisdiction in this case except to dismiss said pretended appeal.”

An examination of the record discloses that the motion to dismiss is well founded. The attempted appeal not having been filed in this court within the time provided by the law, the motion to dismiss the attempted appeal is sustained. It is so ordered, and the cause remanded to the county court of Jefferson county, with directions to enforce its judgment therein.


text:
    MARK BREWER v. STATE.
    No. A-4712.
    Opinion Filed Jan. 31, 1925.
    Rehearing Denied April 11, 1925.
    (234 Pac. 652.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Sale — Evidence Sufficient. In a prosecution for selling intoxicating liquor, evidence held to warrant a conviction.
    Appeal from County Court, Ottawa County; Wm. M. Thomas,. Judge.
    Mark Brewer was convicted of a violation of the prohibitory liquor law and he appeals.
    Affirmed.
    Burns & Turner, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

The indictment in this case returned in the district court of Ottawa county and duly transferred to the county court of said county charges that Mark Brewer, the defendant, did unlawfully sell to Dave Porter one-half gallon of whisky, for a consideration of $6. On the trial the jury returned a verdict finding the defendant guilty, and fixing his punishment at confinement for 90 days in the county jail and a fine of $200. From the judgment he appealed by filing in this court June 4, 1928, petition in error with case-made, but no brief has been filed and no appearance made on Ms behalf in this court. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

A cursory examination of the record discloses that there is no merit whatever in the various errors assigned.

The judgment of the lower court is accordingly affirmed.

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


text:
    FRANK STANFIELD v. STATE.
    No. A-4503.
    Opinion Filed April 11, 1925.
    (235 Pac. 256.)
    (Syllabus.)
    1. Witnesses — Cross-Examination of State’s Witnesses as to Interest or Bias. On cross-examination by a defendant in a criminal case, witnesses for tbe state may be interrogated by proper questions as to their interest, bias, or lack of bias. Questions asked for the purpose of eliciting testimony of this nature are not to be regarded as collateral.
    2. Sam© — Right to Question State’s Witness Fully as to His State of Intoxication. Where, in the trial of a criminal case, the evidence shows that the principal witness for the state was intoxicated at the time of the difficulty between the defendant and the deceased, for the purpose of testing his knowledge and credibility, he may be interrogated fully as to his state of intoxication.
    3. Homicide — Self-Defense—Proof of Threats by Deceased Against Defendant Prior to Difficulty Competent. Where, in a homicide case, an issue of self-defense is presented and evidence in support thereof given, proof of threats made by deceased against the defendant prior to the time of the difficulty is competent.
    4. Evidence — Testimony as to Other Offenses. The issue in the trial of a criminal case is single, and the testimony should be confined to the issue. Other offenses should not be injected, unless in some manner or under some exception they are relevant to the case on trial.

      5. Trial — Error to Assume in Instructions that Shooting Was Cause of Death Where Evidence that Alcoholic Poisoning was Cause. Where, in a homicide case by shooting, the defendant admits the shooting, but denies that the shooting was the cause of death, but contends that death was due to alcoholic poisoningj and there is evidence tending to sustain such contention, it is error for the court in his instructions to assume that the shooting was the cause of death.
    Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
    Frank Stanfield was convicted of manslaughter and appeals.
    Reversed and remanded.
    Guy F. Nelson, Ed Crossland, W. A. Chase, and Jno. L. Ward, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was charged in the district court of Tulsa county with the crime of murder for the killing of one W. M. Brassfield by shooting. The plaintiff in error admits that he shot the deceased in an altercation after both parties had been drinking considerably, but he claims the shooting was in self-defense, and also contends that the shot was not fatal, and was not the cause of the death of the deceased, and that deceased died from alcoholic and fusel oil poisoning. The jury found the plaintiff in error guilty of manslaughter in the first degree and fixed his punishment at four years in the state penitentiary, from which judgment and sentence this appeal is prosecuted.

Several assignments of error are presented, among them irregularities in the proceedings of the court by which plaintiff in error was prevented from having a fair trial, that the verdict and judgment were not sustained by the evidence, error of the court in excluding evidence, and error of the court in giving certain instructions.

The record shows that in the course of the trial the plaintiif in error sought to question various witnesses for the state, touching their interest and bias in the case, to which questions the county attorney objected and the objections weré sustained by the court. Our examination of the record convinces us that there was error in several rulings upon this line of questions, and that the cross-examination was unduly restricted. In the trial of a homicide case, the defendant on cross-examination may by proper questions interrogate the witnesses for the state as to their interest, bias, or lack of bias, and proper questions propounded for the purpose of eliciting such testimony are not to be regarded as collateral. To exclude such testimony is erroneous. Gibbons v. Ter., 5 Okla. Cr. 212, 115 P. 129.

Complaint is also made that the court excluded testimony offered by the plaintiif in error to the effect that two days prior to the difficulty the deceased had made threats against the plaintiff in error. An examination of the record sustains the contention. Where, in a homicide case, self-defense is set up, and there is evidence in support thereof presented, any threats made by the deceased against the defendant, not too remote, are competent as tending to show the state of mind of the parties at the time and as tending to show who was probably the aggressor. Smith v. State, 14 Okla. Cr. 250, 174 P. 1107; Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; Foster v. State, 8 Okla. Cr. 139, 126 P. 835; Offitt v. State, 5 Okla. Cr. 48, 113 P. 554.

Error is also assigned in the ruling of the court limiting1 the cross-examination by the plaintiff in error of the witness Yocham. There was only one person present at the difficulty besides the deceased and the plaintiff in err^r This was a witness named Yoeham. Under the evidence disclosed by the record this witness was in a state of intoxication at the time of the difficulty, and on behalf of the state he testified at some length. Upon cross-examination counsel for plaintiff in error sought to show that he was so intoxicated that he was incapable of forming just impressions. Various questions propounded were objected to by the state and the objection sustained. We believe the cross-examination was unduly restricted on this point.

It is also argued that there was error of the court in permitting a witness to testify in reference to the plaintiff in error on some other occasion having “shot a nigger.” In the trial of a criminal case the issue is single and the testimony should be confined to the offense chargéd, and other offenses or prejudicial matter should not be injected, unless in some manner, or under some exception to the general rule, relevant to the case on trial. Smith v. State, 5 Okla. Cr. 67, 113 P. 204; State v. Rule, 11 Okla. Cr. 237, 114 P. 807; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383.

Lastly, it is argued that various instructions of the court assume that the death of deceased was caused by the shot fired by the plaintiff in error. Whether or not the death of deceased was caused by the shooting or was due to alcoholic poisoning was a disputed issue and the evidence on this point was conflicting. Instructions Nos. 7, 19, and 23 assume that death was caused by shooting. These instructions take away from the jury this disputed fact and deprived the plaintiff in error of having that question determined by the jury. This is cured in part by the court’s instruction No. 28, in which the jury are told that no person can be convicted, unless the death of the person killed and the fact of the killing by the accused are each established as independent facts beyond a reasonable doubt, and are further told that, unless they believe these essentials are established beyond a reasonable doubt, they should acquit the defendant, but, as a reversal is necessary, the error complained of on this point should not again arise.

Other assignments are argued in the brief of plaintiff in error, but none of them, we believe, call for any special notice.

On account of the errors referred to the case is reversed and remanded.

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


author: BÉSSEY, P. J.

text:
    ARTHUR WEATHERFORD v. STATE.
    No. A-4721.
    Opinion Filed March 28, 1925.
    Rehearing Denied April 11, 1925.
    (234 Pac. 779.)
    (Syllabus.)
    Preliminary Examination' — Irregularities of Clerical Nature by Magistrate not Necessarily Jurisdictional. The Jurisdiction of the district court rests upon the findings of a magistrate in a preliminary hearing, but irregularities of a mere clerical nature committed by the magistrate, or irregularities in filing such findings, are not necessarily jurisdictional.
    Appeal from District Court, Atoka County; J. H. Linebaugh, Judge.
    Arthur Weatherford was convicted of the larceny of live stock, and he appeals.
    Affirmed.
    C. M'cCasland, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BÉSSEY, P. J.

Arthur Weatherford, plaintiff in error, here designated the defendant, was convicted of the larceny of a calf. The jury fixed his punishment at confinement in the penitentiary for two years.

Without reciting the details, the evidence is clear and convincing that the theft was committed by the defendant as charged. His only claim of justification is that his accomplice in crime turned informer and assisted in trapping him, which of course is no defense at all.

Defendant claims that the district court was without jurisdiction because the examining magistrate had not properly certified and filed his findings with the district court. This contention is also without merit. The record shows that a preliminary hearing had been held before a magistrate, in which the defendant was held to answer the charge of larceny of live stock. The jurisdiction of the district court rests upon the findings of a magistrate in a preliminary hearing, but irregularities of a mere clerical nature committed by the magistrate, or irregularities in filing such findings may be cured, as was done in this case. Williams v. State, 6 Okla. Cr. 373, 118 P. 1006; Ponosky v. State, 8 Okla. Cr. 116, 126 P. 451; Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    WALTER O’QUIN v. STATE.
    No. A-4860.
    Opinion Filed April 15, 1925.
    (235 Pac. 247.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Transportation — Conviction Sustained. In a prosecution for unlawfully transporting intoxicating liquor,

      evidence held to warrant a conviction, and that no material error was committed on the trial.
    Appeal from County Court, Oklahoma County; Jas. C. Cheek, Judge.
    Walter O’Quin was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Lewis R. Morris and Orban C. Patterson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that Walter O’Quin, on April 23rd, 1923, did unlawfully transport and convey two gallons of whisky from a place in Oklahoma county unknown to 525 West California street in Oklahoma City. The verdict of the jury found the defendant guilty as charged in the information and assessed his punishment at a fine of $500 and confinement in the county jail for a period of six months. From the judgment rendered on the verdict, he has appealed and assigns as error that the verdict is contrary to the law and the evidence; that the court erred in its rulings on the admission and rejection of evidence, and the court erred in overruling ■the motion for new trial on the ground of newly discovered -evidence.

No brief in support of the assignments of error has been filed and no appearance made in behalf of defendant in this court.

The evidence shows that three police officers raided the defendant’s home, 525 West California street, Oklahoma City, and were there when the defendant drove in from the, rear in a five-passenger Ford car with a woman in the seat beside him. One of the officers took a pistol from the defendant, another pointed to a black bag in the car between the seats which contained four half-gallon jars of corn whisky, and asked defendant what about the whisky in the car. The defendant said: “It is all mine. The women had nothing to do with it.” They arrested the defendant. The state rested, and the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

As a witness in his own behalf, defendant testified that a lady called him from Packingtown and he drove out there; that if there was any whisky in the hand bag it was put in his car at Packingtown; that he drove from Pack-ingtown to his place and was there arrested by the officers ; that he did not say anything to the officers about the whisky, but did tell them that he had a gun on him, and did not want to lose it.

Where no brief has been filed or oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony.

The motion for a new trial on the ground of newly discovered evidence is supported by the affidavit of one Edith Womble that she called the defendant and he came to get her in Packingtown, and she took a hand bag containing four fruit jars of whisky and set it in defendant’s car, and he stated that he wanted to go by his house, at which place he was arrested; that defendant did not know what the hand bag contained until he was arrested.

That this motion was properly overruled is too clear to call for discussion.

' N'o reversible error appearing, the judgment of the lower court is affirmed.

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


text:
    Ex parte ELBERT McGHEE.
    No. A-5477.
    Opinion Filed April 15, 1925.
    (235 Pac. 252.)
    (Syllabus.)
    Bail — person Accused of Murder Entitled Under Evidence to Bail as Matter of Bight. Upon the record presented in this application, held, that petitioner is entitled to be admitted to bail as a matter of legal right.
    Application of Elbert McGhee for habeas corpus to be admitted to bail.
    Bail allowed.
    Brown & Phipps, for petitioner.
    The Attorney General, for respondent.
   DOYLE, J.

In this proceeding petitioner filed in this court on March 12, 1925, his duly verified petition for writ of habeas corpus to be admitted to bail. It appears that petitioner was committed by a justice of the peace of Haskell county, after a preliminary examination and without bail, to answer to the district court of that county upon a charge of murder, alleged to have been committed on January 6, 1925, in killing one W. C. Mitchell, by striking him with an iron bar; that an application for bail was made to the judge of the district court of Haskell county and the same was denied; that the proof of his guilt of murder is not evident, nor the presumption thereof great, all of which is clearly shown by the testimony on said preliminary trial, and a copy of the same being attached and made a part of the petition.

A rule to show cause was entered and issued returnable March 12, 1925. The uncontroverted facts, as shown by the transcript of the testimony, are that petitioner visited the home of the deceased about 11 o’clock in the morning on the date of the killing, and in a quarrel over the possession of corn whisky a fight occurred. Petitioner claims that in self-defense he picked up the iron bar in question and struck the deceased over the head. Petitioner lived within a quarter of a mile of the home of the deceased. Returning there, he met several parties, and told them what had occurred, and phoned for a doctor.

Upon a consideration of the testimony, we are of opinion that petitioner is entitled to bail as a matter of legal right. It is therefore ordered that said petitioner be admitted to bail upon the charge of murder now pending against him, and that his bail be and is hereby fixed in the sum of $20,000, bond to be conditioned as required by law, the same to be approved by the court clerk of said county, and upon his approval of said bond he shall notify the sheriff of said county, who thereupon shall discharge said petitioner from custody.

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


text:
    ELMER SHIEVE v. STATE.
    No. A-5008.
    Opinion Filed April 15, 1925.
    (235 Pac. 254.)
    (Syllabus.)

      1. Appeal and Error — Burden to Show Prejudicial Error. Error is not presumed, and in order to avail the defendant it must affirmatively appear that there was an irregularity which deprived the appellant of some substantial right, to his injury.
    2. Trial — Permitting Name of Witness Inadvertently Omitted to be Indorsed on Information not Abuse of Discretion. Where it appears that the name of a witness was omitted from an information through inadvertence and without any bad faith, and the court permits such name to be indorsed on the information after the jury is impaneled and sworn, such ruling of the court is not an abuse of discretion.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.

      Elmer Shieve was convicted of having possession of intoxicating liquor, and appeals.
    Affirmed..
    F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error will be referred to as defendant, according to his position in the lower court.

The defendant was charged by information in the county court of Ottawa county with having possession of intoxicating liquors with the intent to sell the same, was tried before a jury, and upon conviction sentenced to pay a fine of, $300 and to be confined in the county jail for a period of 90 days, from which judgment and sentence he prosecutes this appeal.

Several assignments of error are made in the motion for a new trial, but the only assignments argued in the brief of the defendant is that the court erred in admitting certain evidence against the defendant, and that the evidence is insufficient to sustain the judgment and sentence, and that the court erred in permitting the indorsement of the name of a witness on the information after the trial had commenced.

The record discloses that certain officers on the night of August 25, 1923, procured a search warrant and went to the house of one Beulah Juniper, where the defendant was at the time. They knocked on the door and informed the defendant, who came to the door, that they had a search warrant to search the house. He asked them to wait a minute, and returned into the house, and upon the officers shortly following him into the house, they heard a crash and found a jug, just broken, with whisky running over the floor, a part of which they saved. There was other evidence that the house was a place of resort.

Upon the trial of the case, the principal contention was upon the validity of the search warrant, which contains the following recital:

“Proof by affidavit having been this day made before me by C. N. Flye, stating that there is probable cause for believing that liquors are being sold, bartered, given away and otherwise furnished, and are being kept for the purpose of selling, bartering, giving away and otherwise furnishing the same in violation of an act of the Legislature of the State of Oklahoma, known as Senate Bill No. 61 (Billup’s Bill), by Beulah Juniper and others with him at the city of Commerce, in Ottawa county, Okla., in the following described premises, to wit, one 4-room house on North Short St. 116.”

The defendant questioned the sufficiency of the affidavit upon which the search warrant was based. The affidavit appeared to have been lost, and when the state tendered evidence as to its contents the defendant objected, and here contends that the recital in the search warrant shows that the affidavit was made on the information, and that under the authority of the Gore Case, 23 Okla. Cr. 481, 218 P. 545, evidence obtained on authority of such search warrant ■is inadmissible. Some contention is also suggested as to the regularity with which the search warrant was issued.

It is apparent to us that the search warrant in question does not attempt to quote or to show the contents of the affidavit and does not show that the affidavit on which the search warrant was issued did not contain allegations of fact showing probable cause. In the absence of proof to the contrary, the presumption is that the affidavit contained sufficient allegation of fact to justify the issuance of the search warrant. The burden is on the defendant to show affirmatively that it did not set out the requisite facts, and this, we think, he has failed to do.

As to the method of procuring the search warrant in question, there is some conflict between the- witnesses as to the procedure at the time it was obtained. But as the search warrant was procured on the 25th of August, and the case was not tried until November 10th, following, it is but natural that the witnesses would not coincide in every particular. The record discloses conclusively that before the search warrant was issued an affidavit was signed by one of the parties procuring the same with the intention of verifying it, and whether or not he held up his hand and went through the formality of an oath, jurat was then affixed to it by the justice of the peace and the search warrant either filled out before the justice signed the same or signed by him and immediately filled out; whichever may have been the actual fact we think does not affect the validity of the search warrant.

During the course of the trial, in order to establish the loss of the affidavit for the search warrant, it became necessary to indorse on the information the name of the justice of the peace as a witness, which was done after £he trial had commenced, over the objection of the defendant. It is apparent that the question of proving the sufficiency of the affidavit was not anticipated by the state, and the indorsing of the name of the justice of the peace as a witness otherwise was not necessary. Where there is no evidence of bad faith or ulterior purposes in failing to indorse the name of a witness inadvertently omitted, the court may permit it to be done at any time.

Section 2511, Comp. St. 1921, provides:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at1 the time of filing the same. He shall also indorse thereon the names of such other witnesses as may after-wards’ become known to him at such time as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.”

Section 2550, Comp. St. 1921, is as follows:

“The court or judge may, at any time, direct the names of additional witnesses for the prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.”

In the case of Ford v. State, 5 Okla. Cr. 240, 114 P. 273, it is held that the indorsing of the names of witnesses is in the discretion of the trial court, and unless there is an abuse of discretion such action will be sustained.'

See, also, Colbert v. State, 4 Okla. Cr. 500, 113 P. 558.

In the case of Ghormley v. State, 11 Okla. Cr. 532, 148 P. 1057, it is said:

“Under Proc. Crim. (section 5694, Rev. Laws 1910 (fsection 2511, Comp. St. 1921“]), requiring the county attorney to indorse on the information, at the time of its filing, the names of witnesses then known to him and permitting the names of such other witnesses as may after-wards become known to him to be indorsed thereon as the court may by rule prescribe, it is within the discretion of the trial court to permit names to be indorsed on an information after the trial has commenced, and where the name of a witness known to the county attorney at the filing of the information was inadvertently omitted, and there was no evidence of bad faith, the court properly permitted it to be indorsed during the trial.”

From an examination of the entire record in this case, we are of the opinion that it is not made to affirmatively appear that there is any substantial error, and the judgment and sentence is affirmed.

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


text:
    W. J. BEAVER et al. v. STATE.
    No. A-4843.
    Opinion Filed April 15, 1925.
    (235 Pac. 251.)
    (Syllabus.)
    1. Trial — Direction of Verdict — Where Properly Refused. If there is any evidence to support a conviction, it is not error to overrule defendant’s motion for a directed verdict of acquittal on the ground that the evidence is insufficient to warrant a conviction.
    2. Appeal and Error — Verdict of Guilty not Disturbed Unless Clearly Contrary to Weight of Evidence. A verdict of guilty will not be disturbed as unsupported by the evidence unless clearly contrary to the weight of the evidence.
    3. Intoxicating Liquors — Unlawful Possession — Sufficiency of Evidence. In a prosecution for unlawful possession of intoxicating liquors, evidence held sufficient to sustain the conviction of two defendants, and insufficient to support conviction of the other defendant.
    Appeal from County Court, Ottawa County; Wm. M, Thomas, Judge.
    W. J. Beaver, Walter Stein, and John Martin were convicted of illegal possession of intoxicating liquors, and they appeal.
    Reversed as to Beaver, and affirmed as to Stein and Martin.
    Burns & Turner, for plaintiffs in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants, W. J. Beaver, Walter Stein, and John Martin, on the 3rd day of March, 1923, did have in their possession intoxicating liquors, to wit, whisky, with the unlawful intent to sell the same. A trial was had thereunder, and the defendants were found guilty as charged in the information, and the punishment of each fixed at a fine of $150 and confinement in the county jail for 30 days. From the judgment rendered on the verdict, they appeal and assign as error that the verdict is not sustained by sufficient evidence, and the court erred in admitting incompetent evidence.

The material and undisputed facts are that M. D. Wolfe, deputy sheriff, in company with three other officers, in executing a search warrant against the defendant Bea* ver’s rooming house, in the town of Picher, found about six gallons of corn whisky contained in' jugs and in fifteen half-pint bottles in a room near those occupied by the defendants Stein and Martin; that the defendants Stein and Martin were often seen going to and from the rooming house and left there just before the officers appeared. It appears that the defendant Beaver owned the rooming house, and the other two defendants were the only permanent roomers. Each of the four witnesses for the state testified that the old man Beaver had never been accused of violating the prohibitory liquor law. When the state rested, each of the defendants moved for a directed verdict in the form of a demurrer to the evidence, which was overruled and exceptions allowed.

The defendant Beaver, as a witness in his own behalf, testified his age was 71 years; that he owned the rooming house and was present when the officers searched the place and found the liquor in question in an unoccupied room; that he was, in the room the day before and did not notice any liquor in there; that he did not own the liquor and did not know that it was there; that' the defendant Stein had been rooming with him since his wife died; that the defendant Martin had been staying there a month or two; that both left the house a short time before the officers arrived; that he had never been arrested before in his life.

The defendants Stein and Martin did not testify.

It is urged that the court erred in refusing to advise the jury that the evidence was not sufficient to warrant a conviction, in that the evidence offered was insufficient to show possession of the liquor in question by the defendants. Stein and Martin.

It is a rule approved by this court that where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, and ordinarily the verdict approved by the trial court will be allowed to stand.

We have carefully examined and fully considered all the testimony, and we are of opinion that the evidence is not sufficient to sustain the verdict as against the defendant W. J. Beaver,. The witnesses for the state testified that he was old and feeble and had the reputation of being a law-abiding citizen.

As to the other two defendants, we think that on the undisputed facts and circumstances in evidence the jury was warranted in reaching the verdict that it did.

The judgment of conviction as to the defendant W. J, Beaver is reversed. The judgment of conviction against the defendants Walter Stein and John Martin is affirmed.

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


text:
    CARL ABBOTT v. STATE.
    No. A-5006.
    Opinion Filed April 15, 1925.
    (235 Pac. 550.)
    (Syllabus.)
    1. Arrest — On Detection of Suspected Person in Commission of Misdemeanor, Arrest and Search not Unlawful. When a peace officer observes a person in acts that reasonably lead him to suspect the commission of a misdemeanor and, without violating any constitutional right of the suspected person, makes an investigation and detects such person in the commission of a misdemeanor, his arrest and search of the person is not unlawful.
    2. Appeal and Error — Necessary Record for Review of Ruling on Application for Continuance. In order that the ruling of the court on an application for a continuance may be reviewed in this court, it is necessary that said application be preserved in the record, with the ruling of the court thereon, with exception properly saved.

      Appeal from County Court, Bryan County; S-. W. May-tubby, Judge.
    Carl Abbott was convicted of transporting intoxicating liquor, and appeals.
    Affirmed.
    George F. Deck and McPherren & Hannah, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas,. Hill Johns, Asst. Atty. Gen., for1 the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Bryan county on a charge of transporting intoxicating liquors, and upon conviction by a jury punishment was fixed at imprisonment in the county jail for a period of 30 days and a fine of $200, and upon the judgment and sentence based thereon prosecutes this appeal.

Only two assignments of error are argued in the brief of the plaintiff in error as follows: First, that the evidence obtained by an unlawful search was used against plaintiff in error over his objection. Second, that the court erred in refusing to grant a continuance on the ground that one of the attorneys for the plaintiff in error was a member of the Legislature, then in session. These assignments will be considered in the order presented.

The evidence is brief, and is to the following effect: That on the date of the offense charged, Jim Kiersey, chief of police at Durant, saw the defendant walking on North First street, near Linn’s store, carrying a grip; saw him go into the store. The officer then turned back and saw plaintiff in error leaving the store without the grip. The officer then went into the store, made inquiry, and found the grip which had been left on the porch at the rear of the store, and after picking the grip up he shook it and decided that it had whisky in it. The officer went around the store and saw the plaintiff in error attempting to go through the fence in the rear and saw something sticking up under his coat, which he took to be a gun, and upon making an examination he discovered that instead of a gun it was a bottle containing some whisky, and then discovered that the plaintiff in error seemed to be under the influence of whisky. Whereupon the officer arrested the plaintiff in error and took him, with the grip, in a car to the county attorney’s office, and on the request or demand of the officers, plaintiff in error unlocked the grip and in it were three half-gallon fruit jars of whisky. The officer did not have a warrant for arrest or a search warrant during any of the time in question. The plaintiff in error, in his own behalf, testified that he had the grip, but did not know what it contained; that he put it on the back porch of the store; that he had had a drink of whisky that morning and that the bottle in his pocket was comparatively empty; that he unlocked the grip at the county attorney’s office, but did so because the officers had threatened to tear or cut it open.

That is all the material evidence in the case, and the question for consideration is: Was the arrest of the plaintiff in error and the search unreasonable within the meaning of section 3'0 of the Bill of Rights of our State Constitution, which provides that the right of the people to be secure in their person, house, papers, and effects against unreasonable searches or seizures shall not be violated. This clause of the Constitution does not forbid all searches or seizures, but forbids only those that are “unreasonable.” Under this provision it is not permissible to whittle away the substantial guaranties of this section, and, on the other hand, it is not to be so strictly construed that proper and reasonable efforts of the constituted authorities to detect and punish crime shall be prevented.

This court, in the recent case of Berg v. State, 29 Okla. Cr. 112, 233 P. 497, held:

"In case of a lawful arrest, the arresting officer may take from the person arrested any instruments of crime or anything else reasonably deemed necessary to his own or the public safety, and the use of such things on the trial of the person arrested is not objectionable as obtained by unlawful search and seizure.”

And in the case of Davis v. State, 30 Okla. Cr. 61, 234 P. 787, the same rule is announced, citing authorities. See, also, McAdams v. State, 30 Okla. Cr. 207, 235 P. 241.

The authorities are simply to the effect that where an arrest is legally made, the arresting officer has a right as an incident of such arrest to search the person and immediate surroundings of the person arrested, and to seize those things the possession of which is unlawful, or which may be used in the commission of crime. A search of this kind, under such circumstances, is not within the inhibition of the Constitution. A peace officer in the discharge of his duty is not required to close his eyes, but when confronted by circumstances which reasonably cause him to believe that the law is being violated, he may observe a suspected person and follow up suspicious circumstances when it may be done without violating any constitutional restriction, and when in doing so the commission of the offense takes place in his presence, the arrest of the person committing such offense is lawful, and the search of the person and his immediate surroundings is not unreasonable within the meaning of the Constitution.

It is not essential that, under such circumstances, an officer have positive evidence of a violation of law before acting. For instance, he might see a bottle of what appeared to be whisky on the person of a suspected person. He could not be absolutely certain of the contents of the bottle without taking possession of it. He might see a suspected person carrying a jug, and if he is required to be absolutely certain of the contents before acting, transporting may be done practically openly.

It is not possible to state in general terms what acts or circumstances would be sufficient to justify the act of an officer. They would vary under different conditions. Flight on the appearance of an officer, or abandonment of an article or container being transported, and such other circumstances or actions as would lead the guarded discretion of a prudent officer to believe that the law was being violated, would ordinarily be sufficient.

On the second assignment of error the plaintiff in error states that Hon. C. E. McPherren, one of the attorneys for the plaintiff’ in error, was a member of the state Senate, and that the same was in session at the time of the trial, and that request for a continuance was made on such grounds; that the same was denied by the court in violation of the provisions of section 583, Compiled St. 1921, which is as follows:

“The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such facts shall constitute cause for a continuance, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right. * * *”

A consideration of this section has not heretofore been before this'court, and no case has been called to our attention where a like statute has been construed.

The Supreme Court of Kansas, in Berry v, Dewey, 102 Kan. 593, 172 P. 27, construed the Kansas statute on this question and sustained a conviction where a continuance was denied. But the Kansas statute is different from ours, in that it gives the trial court discretionary power to prevent any abuse of the provisions of said statute.

The record, however, in this case does not show that any application for continuance was filed upon this ground. The first mention made of this contention is in the motion for a new trial. The plaintiff in error was represented by Mr. Hannah, partner of Mr. Mc-Pherren, and Mr. George F. Deck, another attorney. At the hearing on the motion for a new trial, Mr. Hannah testified that he had no knowledge of a written application for a continuance having been filed. County courts are courts of record, and any application for a continuance, to be available as a predicate for assigning error, should be reduced to writing, verified, and duly filed, or should be made a part of the record in such a manner that it may be properly presented to the appellate court. Where a proceeding of this nature is had, and the record is not preserved, exception taken, and properly presented to this court, it will not sustain an assignment of error.

Finding no reversible error, the case is affirmed.

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


author: DQ'YLE, J.

text:
    ED WOODS v. STATE.
    No. A-4871.
    Opinion Filed April 16, 1925.
    (235 Pac. 250.)
    (Syllabus.)
    1. Assault and Battery — Weight of Conflicting Evidence for Jury. The weight of conflicting evidence is a question for the jury.
    2. Same — Evidence Sustaining Conviction for Assault with Dangerous Weapon. In a prosecution for assault with a dangerous weapon, evidence held to sustain a conviction.
    Appeal from District Court, Coal County; J. H. Line-baugh, Judge.
    Ed Woods was convicted of an assault with a dangerous weapon with intent to do bodily harm, and he appeals.
    Affirmed.

      P. L. Gassaway, for plaintiff in error.
    The Attorney General, for the State.
   DQ'YLE, J.

Plaintiff in error was convicted on an information charging that on the 27th day of December, 1922, he did cut, stab, and wound one Jesse Stiles with a certain sharp and dangerous weapon, to wit, a knife, and in accordance with the verdict of the jury he was sentenced to be confined in the state penitentiary at McAlester for a term of two years. From the judgment he appealed by filing in this court, on October 2, 1923, petition in error, with case-made. The only errors assigned are that the evidence is insufficient to sustain the verdict and judgment, and that the court erred in not granting a new trial. No brief has been filed, and no appearance made on behalf of plaintiff in error in this court.

The evidence shows that Jesse Stiles attended a dance at the home of the defendant, and an altercation arose between the defendant and Stiles; that the defendant followed Stiles from the house to his car and struck him with his fist; that Stiles ran from him and the defendant followed and overtook him and cut him in the back with a knife. Stiles testified that the wound affected his ability to talk. He bared his- back and exhibited the scar to the jury. His undershirt worn at the time was also introduced. Dr. Damerom testified that he treated the wound, that it was near the spine, and was an inch across and an inch and a half deep. As a witness in his own behalf, the defendant testified that after the fuss in the house he followed 'Stiles and asked him, “What will it take to satisfy you?” Stiles said, “I don’t know.” He said, “If I stomp hell out of you, will that satisfy you?” Stiles said, “You big son of a bitch, I will see you later.” Then he knocked Stiles down with his fist, and he jumped up and threw Ms hand back and ran, and he thought he might be fixing to shoot, and followed him until those present stopped him, that he did not have any knife, and did not stab or cut Stiles with a knife. Several witnesses on the part of the defendant testified that they saw the defendant hit Stiles with his fist, but did not see him have or use a knife.

While the defendant is not represented in this court, we have with much care examined the record, and find it free from substantial error.

Obviously, the case was one for the determination of the jury. We are of the opinion that the defendant had a fair trial.

The judgment of the trial court will be affirmed.

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