text:
    EARL HERREN v. STATE.
    No. A-10056.
    June 24, 1942.
    (127 P. 2d 384.)

      Champion & Fischl, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Earl Herren, was charged in the district court of Johnston county, with Lester Her-ren, Walter Brady, Lee Herren and Helen Herren, with the crime of burglary in the second degree. A severance was granted, the defendant, Earl Herren, waived a jury, was tried, convicted and sentenced to serve four years in the State Penitentiary, and has appealed.

The alleged crime herein involved is the same as that for which Lester Herren was convicted and his conviction affirmed by this court on June 17, 1942. Lester Herren v. State, 74 Okla. Cr. 424, 127 P. 2d 215. The proof in the instant case is substantially the same as that in Lester Herren v. State, supra, and reference is made to that case for a statement of the facts. In addition to the facts shown in the Lester Herren case, the proof herein shows that the car in which the persons who committed the burglary were riding the night of the burglary was backed up to the curb at the store and clearly left the imprint of its tires in the mud. A cast of these tracks was made and the proof showed that the identical tracks were found at the premises of Earl Herren.

Tildie Green way testified that the automobile in which Earl Herren, Lester Herren and Walter Brady were riding, when they came to Lee Herren’s place in Garter county early in the morning of October 27th, belonged to Buster Herren. This car was seized by the officers and a comparison of the tracks made by the casings on that automobile with those left at the scene of the burglary revealed that they were identical.

It is first argued that the court erred in admitting in evidence the merchandise obtained at the home of Earl Herren for the reason that the search warrant under which the search was made wrongfully described the premises of Earl Herren and that the search was unlawful and a violation of defendant’s constitutional right to be secure in his home against unlawful searches and seizures.

The search warrant Avas issued for a search of “Residence, all outbuildings and lands used and occupied by Earl Herrin in lot 3 block 38, Mannsville, Johnston County, Oklahoma.” The search warrant was not introduced in evidence. The affidavit for search warrant was produced and the justice of the peace who issued the search warrant testified that the search warrant was directed to the premises named in the affidavit, which description is hereinabove set forth. The proof showed that the search warrant was returned, but the justice of the peace was unable to find it in the files of his office. The search warrant was a liquor search warrant which directed a search of the Earl Herren premises for intoxicating liquor. There is some conflict in the evidence as to whether the description set forth in the affidavit was the correct legal description of the Earl Herren residence, but in our opinion the proof is sufficient to show that the defendant did not reside on lot 3, block 38, but did reside on lots 1 and 2 in block 80, and if this search warrant were the only- basis for the admission of the exhibits seized at defendant’s home, there would have been mujch merit in this contention.

However, the search of the Herren premises under the search warrant disclosed, in addition to some intoxicating liquor, some new articles of merchandise which the officers seized in .connection with their investigation of the Holmes burglary. Some of these articles were positively identified by Holmes and his wife as having been, taken from their store. Later, after the defendant and his wife had both been arrested and charged with this crime, the officers made another search of their premises and found concealed there a much larger quantity of merchandise than was found in the first search. This1 search was proper. The defendant was in jail on the felony charge and the officers were legally authorized' to make such investigation and search of his premises as they saw fit for any articles which might have been used in connection with the felony charged to the defendant.

In Sallee v. State, 51 Okla. Cr. 414, 1 P. 2d 794, it is stated:

“Where the officers have information that a felony has been committed, and where they have reasonable ground to believe the defendant has committed this felony, they may legally arrest him, and evidence obtained in a seai'ch of defendant’s premises after his arrest is admissible, notwithstanding the defendant may have escaped from the officers shortly after his arrest.”

Moreover, under the testimony of the officers, the defendant waived his immunity to this search by telling them to go ahead and search his home and filling station all they pleased.

It must be borne in mind that a jury was waived and the defendant was tried before the court. In the case of Capshaw v. State, 69 Okla. Cr. 440, 104 P. 2d 282, 284, it is stated:

“In a case where a jury is waived and the cause tried to the court, the presumption is that the court in arriving at his decision and rendering judgment considered only that evidence which is competent and admissible and which has a material bearing on the issues of the case and disregarded incompetent evidence which was admitted.”

The guilt of the defendant was sufficiently proved without the use of the articles found at defendant’s residence. The other circumstances were sufficient to> sustain the conviction. No evidence was offered by the defendant. With the state making' a sufficient showing, to prove defendant’s guilt, without consideration of the merchandise found at defendant’s home, it is not necessary for us to determine the question of the validity of the first search made by the officers. The evidence against defendant was circumstantial, but a very strong case based on these circumstances was guilt against the defendant.

It is nest argued that the evidence is insufficient to sustain the conviction. This assignment has been disposed of in connection with the discussion of the first assignment of error.

Lastly, it is argued that the court committed error when he forced the defendant to answer certain questions which incriminated defendant when defendant and his counsel appeared before the court for the pronouncement of the sentence.

Article 2, sec. 21, of the Oklahoma Constitution provides :

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; * * *”

Section 3140, O. S. 1931, 22 O. S. 1941, § 973, provides :

“After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to tbe adverse party as it may direct.”

Under this statute we think it proper where the punishment is left to the court for him to make inquiry at the suggestion of either party into all circumstances which might be properly considered in aggravation or mitigation of punishment.

Because of the constitutional provision above named, we do not think the court can compel the defendant to answer questions which might incriminate him. However, it is not necessary for us to pass upon this question for the reason that the record discloses that all of the questions asked the defendant were answered by him without any objection on the part of defendant or his counsel. Counsel for defendant did object to the admission in evidence of a certificate from the Bureau of Investigation showing the long criminal record of the defendant, but when the defendant was asked to stand and the court commenced to question him, no objection was interposed by counsel for defendant nor by defendant himself to any of the inquiries addressed to the defendant by the court.

There is another reason why the contention of counsel may not be sustained. The court, after interrogating defendant and becoming familiar with the many prior convictions for various crimes which he had sustained, did not inflict the maximum punishment which he would have been justified in inflicting after obtaining this information. The codefendant, Lester Herren, nephew of Earl Herren, was tried to a jury and given a term of four years. That is the same sentence which was meted out to this defendant, and it .appears to this court that the trial court assessed the same punishment to Earl Her-ren as was given by the jury to Lester Herren, without regard to the information which he acquired concerning Earl Herren after he had found Earl Herren guilty of the crime charged. Under the record it would appear that Earl Herren, uncle of Lester Herren, was the leader in this crime, and there is nothing in the record to indicate any passion or prejudice on the part of the court in assessing the punishment against this defendant.

It is our conclusion that the defendant has had a fair and impartial trial, free from any substantial error, and that the judgment and sentence of the district court of Johnston county should be affirmed.

It is so ordered.

BAREFOOT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    TOM WALDREP v. STATE.
    No. A-9961.
    July 1, 1942.
    (127 P. 2d 860.)

      Yan H. Albertson, of Shawnee, and Hal Johnson and Glen O. Morris, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, Tom Waldrep, was charged jointly by grand jury indictment with Joe H. Smalley, in Oklahoma county, with the crime of violating section 2474, O. S. 1931, 21 O. S. 1941 § 274, selling appointments to office. Said cause was transferred from the district court to' the court of common pleas of Oklahoma county, a severance was had, defendant was tried, convicted, and sentenced to serve one year in the county jail, to' pay a fine of $1,000, and has appealed.

The defendant was, at the time of the offense charged, a State Senator of Oklahoma. His term of office had about three and one-half more years to run. Joe H. Smalley and L. Y. Beaman were ex-members of the lower house of the Oklahoma Legislature. All three of these meu had been long-time personal and political friends.

Coy Smith was an 18-year-old boy who, with his father, T. J. Smith, were citizens of Arkansas. Coy Smith was married to a daughter of L. V. Beaman.

Chester Leonard, -Shannon Leonard, Mastín Thom-ason and Ernest Casto- were also residents of Arkansas. Si Miller resided at Peckham, Okla.

The above-named persons were the principal actors in the drama revealed by the record, which resulted in the conviction of defendant.

Both Beaman and Smalley, spent a good deal of time at the State Capitol building, and directed most of their activities from the office of Department of Mines, where they were on friendly terms with one James Ballard, who had a job in that office.

Mr. Beaman testified:

“Q. (By Lewis Morris, County Attorney) Now, coming down to- this case, did you meet Joe Smalley there at the Capitol building and have any conversation with reference to jobs? A. Here is how that started: I was in the Department of Mines. I think I made a remarle that they were besieging me for jobs and didn’t know I was out of politics, and I couldn’t help them, and I think he made the remark that if I had those people, or those people was coming to me, he might be able to help place some of those people. I asked him the agreement of placing them, and he said Senator Waldrep had some appointments and he probably could persuade the Senator to help him make these appointments, or get the appointments for me. Q. What else was said? A. Relative to prices? Q. Yes, that’s what we are trying? A. $350.”

The testimony further reveals that before leaving the conference a schedule of job selling prices was agreed upon: $100 per month job would cost $350; $125 per month, up to $500. These jobs were to be promised with a tenure of three and one-half years, during the balance of the senatorial term of defendant Waldrep. Beaman went to Arkansas and contacted in a short time the above-named prospects for jobs. He testified to coming back to the Capitol building with T. J. Smith and one Howard White, another job seeking man. On the fifth floor of the Capitol building they sold Coy Smith a job for $350, and sold Howard White one for $500. T. J. Smith paid the money for Coy’s job; Beaman got $75 of this money and Smalley ivas given the balance; this money being paid over in the corridor of the Capitol while T. J. Smith, Beaman and Smalley were together. The evidence shows the money paid in May, 1937, for a Highway Department job, which was to' last while defendnat was Senator. That Coy got a job that paid $100 per month, whereas he was promised $150 per month. In December, 1937, or January, 1938, Coy lost his job; that witness Beaman saw Waldrep regarding- this loss of job; that he-told Waldrep he had brought Coy down here, felt responsible, and would appreciate his getting the boy back. Waldrep stated he would do his best. Coy got another job with the state, but was wanting the $450 back he had paid. That Wald-rep later gave Coy 'Smith one check for $150 and one for $212. Beaman testified that he paid Waldrep the $75 that he had received as his part of the sale price from Coy; Waldrep’s two checks proved to be “hot.”

T. J. Smith testified that he and Coy were residents of Arkansas; Coy was in love with Beaman’s daughter; wanted a job so he could marry her; later did marry her. That Beaman came to Smith’s garage in Mayesville, Ark., and “asked me did I reckon Coy would be interested in a good job.” That he answered and said Coy was about to quit school, and would like a good job; Beaman offered job in Oklahoma City on state pay rolls. “Beaman spoke of me ‘buying a horse,’ and said if I got in on it that it would cost me money, and explained that the ‘horse’ meant a job on Oklahoma state pay rolls.” Smith told Beaman he didn’t have $350, but Beaman came back “every day or two until I kinder got interested.” Smith says he urged Coy to take a job as offered by Beaman. Then he assured Beaman he could raise the cash, and Beaman said the job would last three and one-half years, and was to pay $125 per month. About May 1, 1937, T. J. Smith went to Oklahoma City on this job buying deal and Howard White went with him. White “bought a horse” in the form of a $500 job at the Capitol. T. J. Smith describes his experiences when he got to> Oklahoma City; says he and Beaman went to the Mines office in the Capitol, and there found one Jim Ballard and Smalley. Smal-ley was introduced to witness. The money question came up and Smalley “guaranteed the job” after Smith assured him he had the cash with him to pay off. First of next month Coy Smith got his job and went to work in the Highway Department. That both Beaman and Smalley told him, “they worked through the ¡Senator,” but did not name him at that time.

It was developed in his testimony that this Senator was defendant, Tom Waldrep. Smith was suspicious, and before paying out his $350 said he wanted to see this man Waldrep personally; that Smalley made a phone call. All of the foregoing took place in the Capitol; that Smal-ley reported he could not get to see the Senator that day, but “By G — , we will guarantee the work, you just go ahead and fix things up.” So, Smith testified: “I paid them the money. Evidently the salesmen were nervous; out in the corridor steps Beaman; we walked like we was going down the steps, outside of the office, but right on the bannister Mr. Beaman says, ‘You got it?’ I says, ‘Yes, I got it.’ Close at hand stood Joe Smalley. I handed them the money, and they counted it and if I am not awfully mistaken they both counted it right out on the bannister there and said, ‘By G — , it’s there.’ ” The “horse” had been sold. Smith concludes his testimony with the remark, “They had about all it looked like, that they wanted off of me. I went back home that day.”

Then T. J. Smith relates meeting with defendant at his office in Shawnee after Coy lost his job. He and Coy went to see defendant to> get their money back. They had to wait some time, as the Senator was busy in his private office, but after awhile “we went into the office and he asked how we was; and Coy introduced me, and we talked a little bit, and I just asked Mr. Waldrep wasi there any way he could help us get Coy’s money if he couldn’t put him to work.” The Senator said, “You bet we will work it out.” Defendant told them he was expecting Joe ¡Smalley any minute at the office. Smalley came and they talked, but no money was paid back, but he told the Smiths that in just a few days it would be fixed up and Coy would get another job. Smalley and Waldrep went into the private office, where the Smiths could not hear and held a conference; then, “Waldrep sent Smalley out to talk to us.” That Smalley came out of Waldrep’s private office and told them everything would be fixed.

Coy Smith’s testimony corroborates that of his father, with added details. Beaman was his father-in-law; knows defendant Waldrep. Got a job with State Highway Department as chain man in surveying crew; worked at Seminole and Holdenville on this job.- Began work June 14, 1937; held this job until December, 1937, or January, 1938; got $100 per month. Was out of a job from January until March, 1938, then was hired by Oklahoma Welfare Board. Waited in 'Oklahoma City two weeks .before being placed in first job. He testified: “Well, I was campaigning, I guess, on the Welfare job, which paid $175 per month for salary and traveling expenses.” Met defendant Waldrep during the time he was out of a job, between the two jobs. “I went and told Mr. Waldrep that I would like for him to get me a job or help me get my money or pay me my money back. He said he believed he could get another job and get it threshed out right away.” Smalley came into Waldrep’s office before he got to talk to Waldrep very much. This was at Shawnee after he lost the first job. Smalley there said, “Everything was working out all right and would be all right.” Waldrep told him and his father when they first went to the office that Smalley would be there in a short time. Soon he came. Heard his father tell Waldrep something about going to school and said give me my money back and I would go to school. They got no money that trip, but “After that I went to see him (Waldrep) several times; went once to see him with Mastín Thomason at ¡Shawnee. That time I told Waldrep it looked like I wasn’t going to get any job, and would like to have my money. I was tried of waiting. He said he just didn’t have it and couldn’t get it.” Nothing was said about how much money witness wanted back, but on that trip Wald-rep gave Coy Smith and Mastin Thomason each $50 in cash. Witness had bought a car and a payment was due, and he told Waldrep he needed the money. Waldrep just made him out a check for $32. Coy told Waldrep about the car payment being due and that he had been put off his job. “He just asked me how much it was, I don’t remember what I told him, but he gave me the check.” This was a draft for $32, dated February 2, 1938, payable to Coy Smith, drawn on American National Bank of Shawnee, Oklahoma, signed Tom C. Waldrep. Witness cashed the draft and it was dishonored and witness had to take it up. Testified he lost his job the day of the primary election, July 12, 1938; then again visited Waldrep at Shawnee. This was his second job and it ended in five months as above set forth. Also saw Wal-drep at the Capitol on another occasion. “Told him that it blew np again, and I believed I ought to have my money. The Senator' said, ‘Well, it looks like it.’ ” Did. not ask what money witness had in mind that he wanted paid back to him. Waldrep gave him $5 that time; “One time or another and sometimes in two or three days he would give me $5, or $10, or something, to pay my expenses while I was waiting on him to see if he could raise the money.” Took it for granted that Waldrep knew all about the job sale and drew these conclusions from all the surrounding circumstances.

The state introduced Exhibit No. 3, which was a check for $150, drawn in favor of Coy Smith, dated September 22, 1938, and signed by Tom C. Waldrep. Concerning this check, witness Coy Smith said that he got this check from Waldrep; that it was “supposed to be my money back.” Exhibit No. 4 was another check for $212, drawn in favor of Coy Smith, signed by Waldrep, and which made in all $362. Witness swore: “Let’s see; that would be $362. I went down to his office at Shawnee and asked him if I couldn’t get my money or get the money I paid for the job. I didn’t know for certain he got the money, but he never denied it, and he wanted to know how much it was. I says, well, it is $350, is what I paid; and I believe he said $12 would pay my expenses out there and back that trip; and the reason for two checks, you want to know? He said, send one of them through (both dated the same day) I forget which one, when I got home and he said it would go through; and he said in about a week or ten days send the other and it would go.” Witness testified both cheeks were “hot” though he sent them both through the bank as directed.

Then Coy Smith visited Waldrep again. Went, he doesn’t know how many times, caught the Senator at the Capitol, shoAved him the bad checks, asked him to make them good. He would make excuses by saying he didn’t have the money; “would have the money at 10 Oi’clock in the morning; or by 3 o’clock in the afternoon; or by 5 o’clock; or something like that.”

When the grand jury was in session in January, 1939, the tAvo bad checks were paid; paid while in county attorney’s hands. Witness says he doesn’t know who paid them; wasn’t there Avhen they were paid, but he “Got his money after he appeared before the grand jury.” In practically all details Coy Smith corroborates his father.

Under the theory of “Other offenses evidence,” for the purpose of establishing a motive, intent and a common scheme or plan, the state introduced Mastin Thomas-on, Shannon Leonard, Chester Leonard, and Ernest Casto as witnesses. All definitely established such common plan or scheme of operation in sale of offices. In fact, the similarity in each case was nothing less than a masterpiece of its kind.

Mastin Thomason testified that he was a citizen of Arkansas, got a job with Oklahoma Tax Commission; got it through paying $500 to Beaman and Smalley; was contacted by Beaman in Arkansas about June, 1937. Bea-man asked him if he wanted to “buy a horse.” Explained that a “horse” was a job in Oklahoma state offices . Witness came to Oklahoma City, met Smalley and Beaman at Capitol; picked out a Tax Commission job at $150 a month and he was told by them that it would cost $500. June 9, 1937, witness got a letter through the hands of Joe Smalley on a Senate letterhead, dated June 9, 1937, signed by Tom Waldrep, addressed to Thomason which said: “Your job is before the Tax Commission. I am assured the transfer will be made and that you will be put to work between this and the first of the month, probably on the 15th. You may be assured of this matter working out.”

He paid the $500 to Joe Smalley that same day. Later lost job and received checks from Waldrep to appease him which were turned down because of insufficient funds. Corroborates Coy Smith on trip to Shawnee.

The testimony of Shannon Leonard and of Chester Leonard reveals the same sordid story; dealings with same salesmen, Smalley and Beaman; paying for jobs, money passing. Shannon Leonard said, “I paid him $400 downstairs in the toilet.” He further stated that Smalley and Beaman paid him back. Witness visited Waldrep several times after job did not pan out as guaranteed. Beference was made to the ¡Senator by Beaman but he didn’t say what Senator, so witness Shannon Leonard did a little investigating. “Finally I went to see Senator Waldrep because of the fact that Beaman always would go there and so I decided I would go over there.” Shannon Leonard found out that Beaman had contacted Wal-drep and saw him. “Then one day I went over and told him (Waldrep) that I would like to have my money back.” Got hot check for $150 from Waldrep on November 3, 1937. Check given by Waldrep at his office in Shawnee; that Ernest Casto wa,s present. Shannon Leonard and Casto went together from Oklahoma City; that Beaman repaid some of the purchase price paid for the job, and Waldrep did his part with a hot check for $150.

Chester Leonard tells a rather dramatic story. He bought a job; was an Arkansas citizen; met Beaman at a lawsuit in Arkansas. “Beaman came around and took me into his confidence and said I believe you are smart enough to* hold a good job, and patted me on the back, and said he thought if I could raise $500 he would get me a good job.” It was to be an Oklahoma state job at the Capitol. Gave Beaman $100 in Arkansas; Beaman brought him to Oklahoma City; met Senator Waldrep before he got this job. Beaman introduced him to Wal-drep about noon, the day he got the job. Been to work 30 minutes when “Beaman runs in there and gets around a comer and motioned for me, and so I figured I better get up and go talk to him, and I got up and walked out, and he said, ‘You got that old filthy lucre with you?’ I said, yes, sir. ‘Well,’ he said, ‘you better give it to me,’ and I said all right and so we went into the men’s toilet and I give the money to' Boy Beaman.” He gave Beaman ■$400, balance on $500 job of which $100 had been paid in Arkansas. Lost job; saw Waldrep, who paid him most of the $500 back; paid him $400 in currency. Had big fuss with Waldrep at his office. Senator said in reply to request that he pay off, “You can’t get blood out of a turnip. Bathér than have any trouble,” he said, after being threatened by witness, “I will pay you back, but by G— I didn’t get it — If you don’t cause any trouble, I don’t want any scandal.” He or his office girl paid witness something, like $100.

Ernest “Nig” Casto told a similar story. Contacted by Beaman; bought job on Oklahoma government pay roll; held a farm sale and raised $1,200, out of which he paid $75 down in Arkansas, balance of $425 to- Beaman and Smalley in a toilet at the Capitol building; never got the job; interviewed defendant Waldrep and got same stand-off as the others. Waldrep in his law office paid Casto $90 cash and wrote him a check for $410 which, like the others, came back “hot.” Smalley later came and paid off the check, taking it away with him. His testimony in the main corroborates all the other state witnesses as to job selling by Smalley, Beaman, and Wal-drep.

Tom Waldrep testified in his own behalf. He admitted under oath the story of Coy Smith and T. J. Smith, in so far as it relates to their visits to- him. Admits their demands that they be given their money back or get a job. In short, he admits practically every detail o-f their testimony relative to him, except wherein it is incriminating. He explains his connection with the employing of Coy iSmith as follows:

“Well, now, as I remember it, Mr. Beaman had been after me several times about placing his intended son-in-law, and I told him I would help him. Met Mr. Commons, discussed subject of job for Coy Smith. He said Beaman had already discussed it with him, and that he felt very favorable to the boy because of his friendship for Bea-man, and the section Coy came from; told him I’d appreciate very much if he could help Coy; may have talked to him again. Been so- long, can’t remember conversation. Told Commons that if Beaman talked to- him again I wished he would suggest to him I had talked to him about Coy.”

He testified that the first time he ever saw Coy Smith was “when he and his father came down to- Shawnee” to see him. Had heard the name several times before that. Admits what Smiths said under oath was correct concerning what was said and done at his office when they visited him. “Yes, there was talk there about them trying to get their money back that they had paid out.” That Smalley came to- the office; that he turned the matter over to- Smalley. “Yes, Joe (Smalley) told me he would straighten it up with them.” Admits he and Smiths had a long talk. “Yes, he gave him (Coy) those checks and tried to pay him. Had two or three cussing matches with Beaman and almost had a fight with him once.”

Defendant’s first proposition is that the statute (§ 2474, O. S. 1931, 21 O. S. 1941 § 274) under which defendant is charged is a bribery statute and has no application to a private individual.

This contention of defendant’s has been decided adversely to him in the companion case of Joe H. Smalley v. State, 75 Okla. Cr. 1, 127 P. 2d 869, decided on this date. We therein held that the statute under which defendant was prosecuted is separate and distinct from our statutes covering bribery of public officers. The violation of the bribery statutes is a felony. The statute under which defendant is prosecuted is punishable as a misdemeanor. The state makes no proof that any officer was bribed. Tom Waldrep as an individual is charged and the fact that he happened to be a Senator only added to the moral seriousness of his offense. He was properly prosecuted as an individual. The secret manner of handling the pay-offs and other activities of the conspirators shows that they considered their activities as wrongful.

Defendant’s second proposition is that the conviction is not supported by sufficient evidence.

The state’s case is based on the theory that Waldrep, Beaman, and ¡Smalley conspired to violate section 2474, O. S. 1931, supra, by procuring for Coy Smith an appointment to a subordinate position in the Highway Department of Oklahoma, for gratuity or reward. Beaman, Smalley, and Waldrep recommended a group of people, all nonresidents of the state, for jobs, and in one instance, that of Mastin Thomason, defendant Waldrep wrote a letter promising to get him a job. Most of these people were put to work solely on the recommendation of Senator Waldrep. After the July primary most of them lost their jobs. They then went to Waldrep for their money; some of them were paid and others were given “hot” checks. We think a conspiracy was established beyond a reasonable doubt.

“A ‘conspiracy’ may be defined, generally, as a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means.” Wilson v. State, 5 Okla. Cr. 649, 115 P. 819, 823.
“In cases of crimes perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator or accomplice in the prosecution of the enterprise, is considered the act or declaration of all, and therefore imputable to' all. All are deemed to- assent to, or command what is said or done by any one in furtherance of the common object.” Wharton’s Cr. Ev., 9th Ed., § 698.

Although the defendant remained in the background so far as the actual payment by the various job seekers from Arkansas to him personally was concerned, there is abundant circumstantial evidence which should convince any conscientious juror that the defendant was implicated with Beaman and Smalley in this nefarious scheme. The conduct of the defendant throughout all of the proceedings was not that of an ordinary, innocent person. When the two Smiths came to his office in Shawnee after their money he promised to fix things up; when Smalley arrived at defendant’s office he and defendant went to a private office, out of the presence of the Smiths, and had a long conversation. Smalley then emerged from the office and said things would be fixed all right. At no time during that incident did the defendant seem indignant at Smalley for what he later alleged was the selling of his friendship. Defendant paid back graft money collected by Beaman and Smalley. He issued various bad checks and drafts in an effort to appease the victims of this conspiracy. Defendant stated he was giving these checks in order to avoid a scandal and to assist the persons who had been victimized. In the judgment of this court the giving of checks which are turned down for payment because of insufficient funds is a poor method of assisting some one who needs money or to suppress scandal.

The witness ¡Si Miller testified that early in August, 1937, he talked to defendant Waldrep in the Capitol building about getting a job over here and that he had paid $300 to get the job, and in his conversation with defendant asked if there was anything- further for the witness to do and Waldrep stated “No,” that he would look after the matter. Later he again approached defendant at the Capitol and asked about getting his job there and defendant said that if he was dissatisfied he would give him his money back, to which the witness replied that he had quit his job to take a state job and wanted to go ahead and get a state job and did not want his money back. '

It is next argued that the court erred in admitting incompetent and irrelevant evidence. This assignment is directed to the testimony of Si Miller. The state offered this witness in chief. The court sustained an objection for the reason that Si Miller’s name had not been endorsed on the indictment. The state then withdrew this witness, but later, after proper foundation had been laid in examination of defendant Waldrep, introduced the evidence of said witness on rebuttal. Defendant contends that this was error.

Had the name of Si Miller been endorsed on the indictment, there could have been no objection to his testimony. The substance of the testimony of this witness has been set forth in connection with the discussion of the sufficiency of the evidence.

“It is discretionary with the trial court, in furtherance of justice, to permit evidence in rebuttal which would have been competent evidence in chief.” Tingley v. State, 16 Okla. Cr. 639, 184 P. 599.

The trial court did not allow the witness Miller to testify generally concerning his transactions had with defendant and Joe Smalley. However, when defendant was on the witness stand and testifying on direct examination by his own counsel, he stated that Ernest Casto was the first person to whom he had talked who intimated that he had gotten a job where he (Waldrep) was supposed to have been paid for his help in getting it for him. His counsel further asked Waldrep whether anybody had ever talked to him about remunerating him for securing a job. These questions were sufficient to authorize the county attorney, on cross-examination, to question defendant about the Si Miller transaction and to lay a proper predicate for the introduction of the Miller testimony in rebuttal, under the limitations imposed by the court. We do not think there was any abuse of discretion in this case.

Defendant further contends that the court erred in failing to' instruct the jury that the testimony of Si Miller could only be considered for the purpose of impeachment.

We think that the court’s instructions as a whole completely covered the general law of this case. Furthermore, defendant did not present to the court any request in writing for an additional instruction. Also', no exceptions were taken to any of the instructions given by the court. It is not error for the court to fail to give a particular instruction, unless requested by the defendant in writing, unless by tbe failure of tbe court to give an instruction defendant has been deprived of a substantial and fundamental right.

In Lumpkin v. State, 5 Okla. Cr. 488, 489, 115 P. 478, it is stated:

“Our statutes require a trial judge to instruct the jury as to all matters of law which he thinks are necessary for their information in giving their verdict. If counsel for a. defendant are of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the trial judge, and request that they be given to' the jury. If they fail to do this, a conviction will not be reversed unless this court is of the opinion, in the light of the entire record and instructions of the court, that by the failure of the trial court to instruct the jury upon some material question of law the defendant has been deprived of a substantial right.”

In Campbell v. State, 42 Okla. Cr. 156, 274 P. 1094, this court ruled:

“Where no objection is made or exception taken to the instructions given by the court, and no requests for instructions are made, error cannot be predicated upon the failure of the court to give any particular instruction.”

The fourth proposition presented by defendant is that the trial court committed error in giving instruction No. 8.

The instruction in question reads as follows:

“Gentlemen, you are instructed that according to the testimony of L. V. Beaman, he was an accomplice of the defendant, Joe H. Smalley, and the defendant, Tom Wal-drep. In this regard, the court instructs you that a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

The defendant contends that this instruction invaded the province of the jury and that the court assumed that witness L. V. Beaman was an accomplice. No exception was taken to the instruction as given nor was any instruction offered. This instruction was given for the benefit of the defendant, is favorable to him, and is such an instruction as we think should have been given. What was said in connection with the disposition of assignment of error No. 3 on the failure of defendant to request an additional instruction, or correct instruction, where he thinks the instruction given is inadequate, applies with equal force to this contention.

The fifth proposition advanced by defendant is that the court erred in its failure to instruct the jury as to the testimony of the accomplice witnesses, namely: Coy Smith, Chester Leonard, Shannon Leonard, T. J. Smith, Ernest Casto, Mastín Thomason, and Si Miller.

Here, also, counsel for defendant failed to request an instruction on this point, and, as hereinabove stated, did not object or except to any of the instructions which were given. If counsel for defendant desired a particular instruction on this matter he should have requested it.

Furthermore, since these witnesses could not have been indicted or informed against for the offense for which the defendant was tried, they would not be accomplices'.

The sixth proposition urged by defendant is that the trial court committed error by its failure to instruct the jury as to evidence of collateral crimes.

The court instructed the jury as follows:

“You are further instructed that evidence has been introduced in this case concerning other crimes similar to the one charged in this Indictment contended by the State to have been committed by this defendant. This evidence has been permitted to go to yon for one purpose only, and that is to help you, if it does, determine the plan, scheme, motive, intent and guilty knowledge of the defendant in the case on trial. Your consideration of this character of testimony should be restricted to this purpose only.”

No exception was taken to this instruction and no request for additional instruction was presented. This assignment is without merit.

Defendant has presented an able and extensive brief covering all of the assignments of error. We have carefully reviewed the record and do not find that there has been any prejudicial error committed. The statute under Avhich this prosecution was instituted has never before been given a judicial interpretation. It may be true as has been suggested that others were doing the same thing as was being done by defendant. The fact that the accused persons did not think there was a statute forbidding such activities is no defense. As hereinbefore pointed out, the conspirators, by their own actions, have shown that they thought the things they were doing were wrongful. The pay-offs were always in toilets or other secluded places. All of the job seekers were admonished not to discuss what had happened or to tell where they resided. The persons who were approached to buy jobs were mostly nonresidents of the state and less likely to' betray the conspirators. We have taken all these things into consideration in determining whether the punishment assessed the defendant is excessive.

We have come to the conclusion that the ends of justice will be met by reducing the sentence imposed against the defendant from one year in the county jail and a fine of '$1,000, to six months in the county jail and a fine of $1,000.

It is therefore ordered that the judgment of the court of common pleas of Oklahoma county is modified or reduced from one year in the county jail and a fine of $1,000, to six months in the county jail and a fine of $1,000, and the judgment and sentence as thus modified is affirmed.

DOYLE, J., concurs. BAREFOOT, P. J., disqualified and not participating.


text:
    HARRY S. EMCH v. CITY OF GUYMON.
    No. A-10028.
    July 8, 1942.
    (127 P. 2d 855.)

      Grester H. LaMar, of Guymon, for plaintiff in error.
   JONES, J.

The defendant, Harry S. Emch, was charged in the police court of the city of Guymon with the violation of section 1 of ordinance No. 85 of said city, was convicted and sentenced to pay a fine of $5 and costs. An appeal was taken to the county court of Texas county, trial was had to a jury, a verdict of guilty was returned, and the defendant sentenced to pay a fine of $15 and costs, from which judgment and sentence an appeal has been taken to this court.

It is the contention of the defendant that the ordinance as applied to him is unconstitutional and invalid.

The section of the ordinance in question provides :

“No person shall distribute newspapers, hand bills, or tracts, or books, within the city limits of the City of Guymon without first securing a, written permit from the City Clerk of such City.”

Section 4 of said ordinance provides:

“Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined the sum of not less than One Dollar ($1.00) or more than Twenty Dollars ($20.00) for each and every offense.”

The complaint charges that the defendant did unlawfully distribute tracts and pamphlets in the city of Guymon without first securing a permit from the city clerk. The proof is substantially as follows:

E. C. Krone testified that he was the city clerk of Guymon and had control and custody of the ordinance books of said city. The ordinance in question was identified and read to the jury. The witness further testified that defendant had never applied nor received a permit to- distribute literature and pamphlets or other matter within the city of Guymon and that he made no charge for issuing permits. That he had issued at various times, permits under this ordinance and had on occasions refused to issue permits because of the nature of the articles sought to be distributed.

O. J. Herbstreit, the complaining witness, testified that the defendant, on August 10, 1940, was standing on a corner of Main street in the city of Guymon stopping people and offering literature to them. That the defendant offered to sell the witness some literature Avhich was identified as “The Watchtower.” That defendant had other literature on his person and witness identified the magazine “Consolation” as being other literature which was offered by defendant.

On cross-examination the witness testified that defendant did not argue with the witness nor did he quarrel, nor did he harangue the witness in any way, when he, the witness, refused to receive the magazine.

The defendant testified in his own behalf that he was a resident of Hazelton, Kan., that he was an ordained minister of Jehovah God to preach the gospel of God’s kingdom under Christ Jesus and is one of the sect known as Jehovah’s Witnesses. He introduced in evidence an instrument in writing by which he was duly ordained as a minister of the gospel to carry on the work of his religious society.

His testimony revealed that it was part of the duty of the members of that religious denomination to preach God’s word by calling upon people at their homes and exhibiting to them the message of the gospel in printed form, such as the Bible, books, booklets and magazines, and thus “afford the people the opportunity of learning of God’s gracious provision for them.”

Defendant further testified that he devoted all of his time to the business of preaching the gospel, by distributing copies of the “Watchtower” and “Consolation” magazines in parts of Texas, Kansas, and northwestern Oklahoma.

Defendant further testified that he was in the city of Guymon on August 10, 1940, and had in his possession copies of said magazines which he was offering to those who were willing to receive them. He offered a copy of the “Watchtower” to the witness Herbstreit, who declined to- receive the same. When said offer was declined he did not press the offer or argue or suggest anything to Herbstreit. Defendant further testified that he always conducted himself in his work in a decorous and dignified manner without argument, without violence, without quarreling, and only placed literature with those who were willing to receive it. That he gladly accepted contributions from persons to whom the literature was offered, but if they did not desire to contribute but would read the magazine, he would donate it to such persons.

An exhaustive brief has been filed with the court supporting the views of the defendant. No one has appeared on behalf of the city of Guymon by argument or brief in support of the ordinance herein involved. If it were not for the great public interest which questions such as this involve, this court would be inclined, in view of the record, to reverse this case because of the failure of any interested party to appear on behalf of the defendant in error. Especially would this be true where only a police court conviction is involved. However, in recent weeks there have been other cases involving this same religious society, and raising fundamental questions which are herein involved, to where it is apparent that a further expression of the court is deemed necessary to fully clarify the controverted questions.

The question herein may be disposed of by reference to two comparatively recent decisions of this court involving similar questions. See Ex parte Walrod, 73 Okla. 299, 120 P. 2d 783, 785, and Ex parte Winnett, 73 Okla. Cr. 332, 121 P. 2d 312. In each of those cases it is stated:

“ ‘Freedom of the press’ as guaranteed by Constitutions, federal and state, is not confined to newspapers and periodicals, but necessarily embraces pamphlets and leaflets, and contemplates not only the right to print, but also the right to distribute.”

“The power of municipalities to enact regulations in the interest of the public safety, health and welfare or convenience, may not be so employed as to abridge the individual liberties secured by the Constitution to' those who wish to speak, write, print or circulate information or opinion.”

“Members of a cult known as Jehovah’s Witnesses have a constitutional right to distribute their literature, on streets of city, in an orderly manner, without interference by state authority, in absence of allegation or showing that such literature is against public morals or in any way improper for distribution. U. iS. C. A. Const. Amends. 1, 14.”

In the case of Lovell v. Griffin, 303 U. S. 444, 58 S. Ct. 666, 667, 669, 82 L. Ed. 949, a similar question to that herein was presented to the gupreme Court of the United gtates for its judgment. The defendant, in that case, was charged with a violation of an ordinance of the city of Griffin, Ga., which ordinance provided in substance that circulars, handbooks, advertising, or literature may not be distributed in the city of Griffin without first obtaining written permission from the city manager.

The defendant was one of Jehovah’s Witnesses, ghe distributed religious tracts in said city and did not apply for a permit, as she regarded herself as sent “by Jehovah to' do His work” and that such an application for a permit would have been “an act of disobedience to His commandment.”

In the body of the opinion Chief Justice Hughes stated:

“We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to' license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by Ms ‘Appeal for the Liberty of Unlicensed Printing.’ And the liberty of the press became initially a right to publish ‘without a license what formerly could be published only with one.’ While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty' of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See Patterson v. Colorado, 205 U. S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 [881], 10 Ann. Cas. 689; Near v. Minnesota, 283 U. S. 697, 713-716, 51 S. Ct. 625, 630, 75 L. Ed. 1357 [1366-1368]; Grosjean v. American Press Co., 297 U. S. 233, 245, 246, 56 S. Ct. 444, 447, 80 L. Ed. 660 [666, 667]. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.

“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. Near v. Minnesota [283 U. S. 697, 51 S. Ct. 625, 75 L. Ed. 1357], supra; Grosjean v. American Press Co. [297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660], supra; De Jonge v. Oregon [299 U. S. 353, 57 S. Ct. 255, 81 L. Ed. 278], supra.

“The ordinance cannot be saved ■ because it relates to distribution and not to publication. ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.’ Ex parte Jackson, 96 U. S. 727, 733, 24 L. Ed. 877 [879].”

In the case of Schneider v. Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155, the Supreme Court of the United States, in another case involving Jehovah’s Witnesses, extended the doctrine of Lovell v. Griffin. It is therein held:

“A municipal ordinance which prohibits persons in public streets from handing. circulars, handbills, etc., to those willing to receive them, the purpose of which is to prevent the littering of a street by persons who after receiving them throw them away, violates the constitutional right of freedom of speech and of the press, even though it is enforced only if those who receive printed matter throw it away in the street, and though its operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places.”

“A municipal ordinance which prohibits canvassing, soliciting, the distribution of circulars or other matter, or calling from house to house, without having first obtained a police permit, the applicant for which is required to furnish certain information and to be finger printed and photographed, and which may be refused oh the ground that the applicant is not of good character or is canvassing for a project not free from fraud, the effect of which is to make canvassing from door to door subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it, unconstitutionally abridges freedom of speech and of the press secured against state invasion by the Fourteenth Amendment when applied to noncommercial canvassing by one who distributes booklets published by a religious organization and requests contributions for the purpose of printing booklets to be placed in the hands of others.”

See, also, Cantwell et al. v. State of Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352, Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660.

Not only does the ordinance in question violate the constitutional guaranty of freedom of the press (section 22 of article 2 of the State Constitution), but it is also an infringement of section 2, article 1, of the State Constitution, which declares:

“Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.”

In this country the full and free right to worship God according to the dictates of one’s own conscience is granted to every individual, and this court will be steadfast in its protection of these personal guarantees so' long as the religious doctrine which is practiced does not violate the laws of morality or property or personal rights which are conceded to all.

It should be pointed out that laws may not be made which will interfere with mere religious beliefs, but such laws may interfere with religious practices. Suppose one believed that he should sacrifice a child as a necessary part of religious worship; it would not be contended that our government could not interfere to prevent such a practice. Our law forbidding plural marriages is directed at a practice which is followed by some religious worshippers. Religious liberty does not include the right to introduce and carry out every scheme and purpose which persons see fit to claim as a part of their religious worship. No one can stretch his liberty so as to interfere with that of his neighbor, or violate police regulations or the penal laws of the land, enacted for the good order and general welfare of all the people.

No municipality and no court of this state has the right to place itself between the individual and Almighty God when such individual is engaged in a conscientious act of worship, unless such individual, by such act of worship, violates the laws of morality or property or personal rights of another, and before the court should interfere it should be plain that the form of worship carried on by the accused is such as to bring* it within the prohibition.

We think the ordinance in question as applied to the defendant prohibits his religious worship in the manner his conscience approves. It subjects his work to the approval of the city clerk, who was sitting as an administrative officer. A rabid, intolerant clerk could make it impossible for any minister1 or priest or religious worker to pass out prayer books, Bibles, or other literature of his denomination, unless such applicants for permits believed as the clerk believed. If such ordinance be upheld as the law of the land, then any municipal council could pass ordinances which would throttle, thwart, and stifle acts of worship and religious teaching.

The city has not appeared before this court, and, as far as the record discloses, no proof was offered in the county court to show that the religious practices complained of were such that infringement on the constitutional guaranty of freedom of the press and freedom of religious worship would be justified to protect the health, safety, or public morals of the people.

The judgment of the county court of Texas county is reversed and the defendant ordered discharged.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    JOE H. SMALLEY v. STATE.
    No. A-9954.
    July 1, 1942.
    (127 P. 2d 869.)

      Hal Johnson and Glen O. Morris, both of Oklahoma City, and Van H. Albertson, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, Joe H. Smalley, was charged by indictment, presented and filed in the district court of Oklahoma county, along with one Tom Waldrep, with unlawfully selling an appointment to a subordinate position in a public office. The case was transferred to the common pleas court of Oklahoma county, a severance was granted, the defendant Smalley was tried, convicted, and sentenced to1 serve one year in the county jail of Oklahoma county and pay a fine of $1,000, from which judgment and sentence an appeal has been taken to this court.

It will not be necessary in this opinion to detail the facts introduced on behalf of the state to sustain the conviction, as no question has been raised in the brief of defendant filed herein questioning the sufficiency of the evidence. The facts in the instant case are similar to the facts introduced in the case of Waldrep v. State, 74 Okla. Cr. 428, 127 P. 2d 860, decided on this date. For a full statement of the facts reference is made to1 that opinion.

Counsel for defendant have confined their argument to the single proposition that the indictment fails to state facts sufficient to constitute a public offense, for the reason that the statute under which the indictment was drawn is not applicable to the defendant, who was a private individual and not in a position where he could procure or make appointments to public offices, and said statute was not intended and did not have any relation to the acts and conduct of private citizens.

The statute in question reads:

“Every person who, directly or indirectly, asks or receives or promises to receive any gratuity or reward, or any promise of a gratuity or reward for appointing another person or procuring for another person an appointment to any public office or any clerkship, deputation or other subordinate position in any public office, is punishable by imprisonment in the county jail not less than six months nor more than one year, or by a fine not less than two hundred dollars nor more than one! thousand dollars, or both.” 21 O. S. 1941, § 274, sec. 2474, O. S. 1931.

It is urged that, since the indictment does not charge that defendant was an officer or another person having the power to appoint or employ deputies, clerks or subordinate employees in any public office of the state and does not specifically charge any act performed by defendant which could be the efficient and moving cause of procuring any subordinate position for any person, the same is fatally defective. The indictment, omitting formal parts, reads as follows:

“* * * in the name and by the authority of said State of Oklahoma, do present and find that in said County of Oklahoma, in said State of Oklahoma, on or about the 1 day of May in the year of our Lord, One Thousand Nine Hundred, and Thirty-seven, in Oklahoma County, State of Oklahoma, Tom Waldrep and Joe H. Smalley, whose more full and correct names are to the Grand Jurors unknown, and while acting conjointly and together, then and there being, did then and there wilfully, unlawfully, wrongfully, intentionally and knowingly receive from one, J. T. Smith and Coy Smith, a gratuity in the sum of $350.00, good and lawful money of the United States of America, for procuring for the said Coy ¡Smith an appointment to a subordinate position in a public office of the State of Oklahoma, to-wit; in the Highway Department of said State “of Oklahoma, at a salary in such cases made and approved, and against the peace and dignity of the State of Oklahoma.”

The statute herein involved was adopted by the territorial Legislature from the Dakota Code. Both counsel for the state and defendant assert that they have been unable to find in any of the reports any case in which said section has been construed.

It appears from a reading of this statute that the Legislature has defined the public policy of this state to be that no person shall procure or attempt to procure, for a consideration, the appointment of another person to any public office. The Legislature wisely concluded that a high standard of efficiency in our state government could only be maintained if jobs at the state house were not placed on the auction block. The placing of persons in public office who have paid a monetary consideration to receive their appointment is an inducement to graft and breeds corruption in our public affairs.

The language of the statute in question could hardly have been made more plain than that which is used. The term “every person” certainly is broad enough to include private citizens as well as public officials.

We have another statutory provision, section 1907, O. S. 1931, 21 O. S. 1941 § 382, which applies specifically to cases where public officials corruptly accept a gift or gratuity to make a nomination or appointment to a public office.

If the defendant had been a public official, he could have been prosecuted under section 1907, O. S. 1931, supra, or the misdemeanor statute, section 2474, O. S. 1931, supra, under which the indictment herein was presented. The one statute (bribery of public officials) is a felony statute, and the other makes such a crime only a misdemeanor.

The indictment herein is sufficient in form to advise the defendant of the nature of the offense for which he is to stand trial and to enable him to prepare his defense. It follows the language of the statute which is sufficient. The chief objection directed to the indictment is that the statute itself will not authorize the prosecution of a private individual. Holding, as we do>, that the statute does include all persons, whether they be public officials who actually make the appointment or private citizens who might act as middle men in the handling of the payment for the procuring of the job, the indictment is sufficient.

We have carefully read the record and the proof overwhelmingly sustains the allegations of the indictment. The defendant did not testify. He was given the maximum punishment authorized under the statute. It is our conclusion that the law will be sufficiently vindicated and the ends of justice met by a modification of the punishment imposed, by reducing the sentence of imprisonment in the county jail from one year to six months.

It is therefore ordered that the judgment and sentence of the court of common pleas of Oklahoma county be reduced from one year in tbe county jail and a fine of $1,000 to six months in the county jail and a fine of $1,000, and the judgment and sentence as thus modified is affirmed.

DOYLE, J., concurs. BAREFOOT, P. J., not participating.


author: DOYLE, J.

text:
    SAMMY STANDERFER v. STATE.
    No. A-10142.
    July 22, 1942.
    (128 P. 2d 238.)
    Clayton Carder, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and David L. Field, Co. Atty., of Hobart, for the State.
   DOYLE, J.

The information in this case charged that on the 20th day of March, 1941, in the county of Kiowa, Sammy Standerfer did then and there willfully and unlawfully transport six pints of whisky “from a point unknown in Kiowa county, Oklahoma, to a point in Kiowa county, Oklahoma, to wit: approximately two miles east and two> and three-quarter miles north of the city of Hobart, Oklahoma, the same not being a conveyance of legally purchased whisky,” contrary to, etc.

On the trial of the case the jury found the defendant guilty as charged and fixed the punishment at confinement in the county jail for 30 days and a fine of $50.

■Motion for new trial was duly filed. On August 30, 1941, the same was overruled; thereupon the court rendered judgment on the verdict. The appeal by petition in error with case-made was filed in this court.on September TO, 1941.

The state relied for this conviction upon the testimony of David L. Field, assistant county attorney of Kiowa county, and Mitch Hill, deputy sheriff. Their testimony is to the effect that on March 20, 1941, they left Hobart to go to' Mountain View, to hold an inquest; on the way, a short distance south of what is known as the “Five Mile Station,” located two miles east and three miles north of Hobart, they passed a car facing south that was parked off the slab; at the filling station they turned back and the defendant’s car had been driven from the west side to the east side of the road and parked, and was then headed north. They recognized the defendant at the driver’s wheel, and a young man, Denver Dulworth, was in the car. As they approached the defendant drove his car north at a fast speed; they followed; several bottles of whisky were thrown from the car before they overtook the defendant; that broken bottles were on the road, and at one place they picked up a bottle in a ditch that was about one-fourth full of whisky.

Deputy Sheriff Hill testified that when the chase was full on, the defendant was driving at the rate of 60 or 70 miles an hour.

When the state rested, the defendant interposed a demurrer to the evidence upon the ground of fatal variance in the following particulars:

“That the evidence is wholly insufficient to prove the information as laid, in that each of said, witnesses testified that he knew the point from which the transportation started, and did so at the time of filing the information, notwithstanding the information alleges from a point unknown to the designated point, and by reason thereof there is a fatal variance between the charge and the proof.”

Which demurrer was overruled, exception allowed.

As a witness in his own behalf the defendant testified that he was 24 years old, was married, at the time charged lived at what is known as the “Five Mile Station,” for about three months; that his business here in Hobart was flour and feed; that on the occasion in question he had come to Hobart and met Denver Dulworth walking down the road, north of the filling station; that he turned around to take Dulworth back to the station and Dulworth got in the car; that when he first saw Dulworth there was nothing in his hands; that after he got in the car and started up, Dulworth threw out a package, but that he, defendant, did not know what it contained. That as far as he knew, Dulworth threw out only one package, but there could have been others thrown that he did not see.

On cross-examination he admitted that in 1937 he had entered a plea of guilty to unlawful possession of intoxicating liquor.

Counsel for plaintiff in error in his briefs states:

“The assignments of error raise but a single legal contention which is, that there is a fatal variance between the pleading and proof, by reason of which the demurrer to the evidence should have been sustained, and the defendant discharged.

“The contention stated in a more precise manner is that in an information charging the offense of illegal transportation of intoxicating liqnor from one. place within the state to another, if known, these different localities must be stated, and that an information that merely charges the offense in the general words of the statute is insufficient to plead a violation of law.

“The failure to' so state the different locations of origin and termination, Avhen known, is therefore a matter of substance, not mere form, and is not excused by the harmless error doctrine.”

In support of this contention defendant in an ex-' tended brief cites numerous cases.

It is sufficient to say there is no analogy between the facts in the cases cited and the facts in this case.

The record shows that the sufficiency of the information Avas challenged for the first time in the defendant’s demurrer to- the state’s evidence. However, the information is sufficient to charge the offense of unlawful transportation of intoxicating liquor. 37 O. S. 1941 § 1.

It is well settled that the conveyance of intoxicating liquor from one point on a public highway to another point on the same highway is a conveyance from place to place within the state. Jentho v. State, 19 Okla. Cr. 434, 200 P. 251.

In the contention made counsel assumes that the testimony of the defendant in his own behalf, because undisputed, should be considered as true.

It is the exclusive proAdnce of the jury to pass upon the credibility of witnesses and the weight of their testimony.

After carefully considering the record in this case, we find no good reason for disturbing the verdict. The judgment of the lower court is accordingly affirmed.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT,. P. J.

text:
    JOE SAFFA v. STATE.
    No. A-10080.
    July 22, 1942.
    (128 P. 2d 241.)
    Chas. E. Webster, of Drumright, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for the State.
   BAREFOOT,. P. J.

Defendant, Joe Saffa, was charged in the superior court of Creek county, with the crime of unlawful possession of intoxicating liquor, to wit: “90 pints and 64 half pints of assorted brands of tax paid whisky”, was tried, convicted and sentenced to pay a fine of $500 and serve six months in the county jail, and has appealed.

It is first contended by defendant that the court erred in overruling the demurrer to the amended information. The grounds of this demurrer were that the information “nowhere alleges that the alleged liquor was capable of being used as a beverage”, which it is claimed is an essential description of the liquor unlawfully possessed by the defendant.

The section of the statute under which defendant was charged was Oklahoma Statutes Annotated (O. S. 194!), Title 37, section 1, which is as follows:

“It shall be unlawful for any person, individual or corporation to furnish, except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, or to manufacture, sell, barter, give away or otherwise furnish any liquors or compounds of any kind or description whatsoever whether medicated or not which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; * * * or to have the possession of any such liquors with the intention of violating any of the provisions of this Chapter. A violation of any provisions! of this section shall be a misdemeanor, and shall be punished by a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00), and by imprisonment for not less than thirty (30) days, nor more than six (6) months; Provided, however, that the provisions of this chapter shall not apply to the manufacture and sale of unfermented cider’ and wine made from apples, grapes, berries and other fruit grown in this State, and to the nse of wine for sacramental purposes in religious bodies.”

The above statute is the act approved by the referendum election held July 11, 1933. This act amended Oklahoma Statutes 1931, section 2618, in that it changed the amount of alcohol to be contained in intoxicating liquors from one-half of one per cent to three and two-tenths (3.2%) per cent. This was the only material change made in the law by the act of 1933, as above •stated.

The amended information filed in the instant case alleged, “keep and possess in excess of one quart, to wit: 90 pints and 64 half pints of assorted brands of tax paid whisky, same being a spirituous and intoxicating liquor containing more than three and two-tenths per cent of alcohol measured by weight; upon, in, or about his place of business, to' wit: In the back seat of a 1939 Pontiac Coach Automobile bearing motor number 6 — 747345 and bearing 1940 Oklahoma license tag numbered 6 — 6941; said liquor being possessed with the wrongful and unlawful intention on the part of the said Joe Saffa of violating the prohibitory laws of the State of Oklahoma •by bartering, selling or giving away, and otherwise furnishing the said intoxicating liquor to others.”

Under numerous decisions of this court, both prior to and after the amendment of the statute, as above stated, this court has held that it was not necessary to allege in the information that the intoxicating liquor “was capable of being used as a beverage” where it is alleged that one was in possession of “whisky, same being a spirituous and intoxicating liquor”, and where it is further alleged that the possession was “with the wrongful and unlawful intention * * * of violating the prohibitory laws of the State of Oklahoma by bartering, selling, or giving away, and otherwise furnishing the said intoxicating liquors to others.” Duke v. State, 48 Okla. Cr. 154, 290 P. 348; Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557; Flowers v. State, 8 Okla. Cr. 503, 129 P. 81; Haynes v. State, 45 Okla. Cr. 172, 284 P. 74; Burkes v. State, 45 Okla. Cr. 376, 283 P. 587; Key v. State, 29 Okla. Cr. 436, 234 P. 791.

We therefore hold that the court did not err in overruling the demurrer to the amended information filed in this case.

It is next contended that the court erred in failing1 to sustain the motion to- suppress the evidence offered by the state, and in failing to sustain a demurrer to the evidence of the state.

The facts, briefly stated, are that the defendant, Joe Saffa, on the afternoon of November 25, 1940, drove his Pontiac sedan and parked the same on the public streets of the city of Drumright, and in front of the Ferguson Brothers Garage. He went into the garage, where he was approached by Walter Johnson, Commissioner of Public Safety of the State of Oklahoma, who., after informing the defendant of his official title, said, “I don’t have a search warrant. Do you want me to get a search warrant to search that car?” The defendant replied, “I am not telling you what to do.” There is a sharp conflict in the testimony of Mr. Johnson and the officer who was with him, and the testimony of the defendant as to the action taken by Mr. Johnson after the above conversation. Commissioner Johnson testified that he approached the car, which was standing in the public street in the city of Drumright, for the purpose of securing information as to the tag number, etc., so that he could secure a search warrant for the purpose of searching same. His testimony was as follows :

“Q. That is, out iu front? A. In front of the garage, yes, sir. Q. What did you talk to- him about, Mr. Johnson? A. I told him we had a number of complaints on him being in the whisky business here and that he was using that garage there to transfer loads, and asked if he had any cars in there at that time, and he said no-, that he didn’t have any in there, that that was his car out in front; and there was a car parked right in front of the garage. Apparently it had been getting gasoline — I don’t know, but it was right by the gasoline pumps, and I told him that I wanted to look through his car and I would get a search warrant, and I went out in front to examine the car. I went around it and got the tag number on it, and as I went around the car I looked inside and the whisky was lying, in the bottom of the car and the back seat. The back seat was out, and there was a blanket covering, I will say, two-thirds of the whisky — a blanket or robe. Q. Was there any cushion in the back seat of the car? A. No, there was no cushion there. Q. What did you do* whenever you discovered this whisky in the back end of the car? A. Another investigator was with me at the time, by the name of Boy Mogridge. I told Boy it Avas not necessary to get a search warrant for it, that the whisky was in the car there, and called him over, and Ave then placed Joe Saffa under arrest. Q. Mr. Johnson, Avhenever you1 went around to the car the first time, were you attempting to* search the car at that time? A. No, sir. Q. What was your purpose in going around the car? A. To get a description of it for the purpose of getting a search warrant. Q. To* get a description of it for the purpose of getting a search Avarrant? A. Yes, sir. Q. What did you do with Mr. .Saffa whenever you found the whisky there? A. I had him drive the car up to a little filling station, that we had information that he Avas a partner. It is about a mile west of town, here, I believe, on the south side of the road. When we got up there, Mr. West, another investigator out of the division, checked the whisky with me. We found about 122 pints of assorted tax, paid whisky in pints and half pints. Some was in whole lugs and some was broken lugs. Q. What do you mean by “lug”? A. A lug is commonly called six pint bottles1, wrapped up together, or eight half pints, or three quarts. Q. Do you know how many full pints you found there and how many half pints you found? A. It seems to me like it was 90 full pints and 32 half pints, to the best of my knowledge. Anyway, it made around 122 pints.”

He further testified:

“Q. Did you have a conversation with the defendant, Mr. Johnson, as to what he was doing with the whisky in the car? * * * A. Yes. He told me that he was peddling the whisky out of the car and using that to1 deliver the whisky in, and I said ‘You are getting pretty bold with it, aren’t you?’ and he said, ‘Oh, I am never bothered,’ kinda like that.”

He further testified:

“A. No>, the theory I was going on was that I went out there to get a description of the car and the tag number, which is necessary in obtaining, a search warrant, and as I walked around the car, you could look in there and the whisky was visible as I walked around the car. I was on the north side of the car. Q. You were on the north side of the car? A. Yes, sir. * * * A. And the gasoline pumps, as I recall it, was right at the rear end of the car, or pretty close to1 the rear end, and I walked around the gasoline pumps and checked the tag, number, and then went on around the car on the north side of the car and as I walked by the glass there, I could see inside and see the whisky. Q. As you walked by what glass? A. The back glass of the car. Q. So the first view you got inside of the car was through the rear glass of the car, is that correct? A. That is right? Q. And the reason you were there was because — (interrupted) A. Not the rear but the side rear glass. Q. The side rear glass? A. Yes, sir, that is right. Q. On which side? A. On the north side. * * * Q. Where was Mr. Mogridge? A. He stayed on the side here, and this was the back end of the car. I took the tag number and walked around on this side, and as I got in this position, I looked in the car and there was the whisky in the back of the car on the floor and where the cushion should be. There was a blanket partly covering the whisky and from that position I told Roy, I said, ‘It is not necessary to* get a search warrant for this car. It is full of whisky,’ and I asked, ‘How much have you got in here, Joe,’ and he said ‘About four cases,’ I think. Q. Now, Mr. Johnson, was the glass rolled up or was it down? A. It was up. Q. It was up? A. Yes, sir. Q. It was clear to where you could see through the car and not only see through the car but see what was down there? A. That is right. Q. And not only see what was down there, but whether it was covered up or not, is that right? A. That is right. Q. The glass wasn’t misted over, is that correct? A. No, it was clear. Q. It wasn’t dirty, it was perfectly clear? A. That is right. Q, In spite of that weather? A. That is right. Q. Could you tell from where you were standing out there whether or not these were broken packages or did you find that out later? A. No, there were some broken packages in there, some loose bottles. Q. And yon could see that through the window? A. That is right. Q. Could you see the blanket through the window? A. I don’t recall whether it was a blanket or a robe. Q. Some kind of cover ? A. Yes, sir. Q. You saw that through the window? A. Yes, sir. Q. What color was it? A. I don’t remember the color. Q. What portion of the liquor was covered up with it? A. I would say about two-thirds.”

The evidence of Commissioner Johnson was corroborated by Roy S. Mogridge of the Highway Patrol.

Defendant, Joe Saffa, testified in his own behalf. He admitted the ownership of the car and the whisky, but stated that the car had been registered in his brother John Saffa’s name. He stated no search warrant was served on him. He testified as follows:

“Q. What then did you say? A. I said, ‘Have you got a search warrant to search my car?’ and he said, ‘No, but I can get one if you want me to,’ and I said, ‘I am not telling you what to do.’ Q. What did he do then? A. He deliberately walked to the front of my car, past the front, and opened the door, raised np the blanket, and come back and got a little ways and called me and I said, ‘It is raining, I am not going ont there,’ and them he hollered at Mr. Mogridge and said, ‘Yes, it is loaded.’ ”

He also testified it had been raining and there was mud on the windows of the car so one could not see from the outside.

From the above testimony, it will be readily seen that under the former decisions of this court, this case comes clearly within the rule that where a public offense is committed in the presence of an officer, that it is not necessary for the officer to procure a search warrant before arresting-; and searching him and the property belonging to him and in his immediate presence. Oklahoma Statutes 1931, section 2780, O. S. A. (1941) Title- 22, § 196. Defendant, by his own admission, had driven his automobile and parked same upon the public streets of the city of Drumright. It was a public place and an officer of the law in the discharge of his duty had the same right as the defendant upon the public streets of that city. If, as testified to by him, he observed through the window of the automobile of defendant large quantities of intoxicating liquor on the back seat and floor of the automobile, why should he be required to secure a search warrant when the violation of the law was committed in his very presence? Does the fact that he saw it through the glass window of the car cause him to be unable to act in the discharge of his duty when this violation of the law is committed in his presence? If he could not act upon the sight of this liquor, he could not arrest parties who were fighting or committing other crimes which he saw through the windows of the car. It is absurd to say that the officer did not have this right. The right to search the property or person of a citizen of this state is a sacred right and is protected by the Constitution and laws of this state, as this court has often held, but this law also provides that when a public offense is. committed in the presence of an officer he has the right to arrest the defendant, and therefore the rig'ht to search his person and property in his immediate presence. We do not mean by this statement that an officer of the law should not be careful in exercising this right. The right should not be created by an evasion or subterfuge. Neither should one who brazenly defies the law be permitted to- avoid its consequences. We are only concerned with upholding the law and the Constitution as it is written. Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Arnold v. State, 70 Okla. Cr. 203, 105 P. 556; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Hutson v. State, 72 Okla. Cr. 61, 112 P. 2d 1109; Sims v. State, 73 Okla. Cr. 321, 121 P. 2d 317; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028.

After the whisky was seen by Commissioner Johnson, defendant was immediately placed under arrest and a search of the car was made and there was found 92 pints and 64 half pints of tax paid whisky. Defendant admitted ownership of the car and possession of the whisky, stating that he had, himself, driven the car there shortly before it was discovered.

From the above statement, it is clear that the court did not err in refusing to- sustain the motion to suppress- and the demurrer to- the evidence.

It is next urged that the judgment and sentence rendered is excessive. While the evidence reveals a large quantity of liquor, and no- doubt defendant was in the whisky business, he took the witness stand in his own behalf, and there was no proof of previous conviction of any kind, we are of the opinion that the judgment and sentence should be modified from a fine of |500 and six months in jail, to a fine of Sp'OO and 60 days in jail. As so modified, the judgment and sentence of the superior court of Creek county is affirmed.

JONES and DOYLE, JJ., concur.