text:
    WATT NOBLE v. STATE.
    No. A-6614.
    Opinion Filed August 24, 1929.
    (280 Pac. 476.)

      Percy Powers, for plaintiff in error.
    W. M. Williams, Co. Atty., for tbe State.
   CHAPPELL, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Greer county on a charge of having possession of intoxicating liquor, and bis punishment fixed at a fine of $100 and confinement in tbe county jail for 60 days.

Tbe evidence of tbe state shows that tbe sheriff received a telephone call from some undisclosed person, requesting him to go to tbe home of the defendant. The sheriff does not, in bis evidence, give the reason for the call, nor the necessity for visiting the residence of the defendant. On reaching the place, the sheriff, with one of his deputies, went to the barn of the defendant and, walking in through an open door, found the defendant, with men named, Armstrong, Burton, and Pugh; that the defendant and some of the other men had been drinking. The sheriff found eight bottles of beer in a ease and about two dozen empty bottles near the men in the barn. No search warrant had been issued to search the residence or curtilage of the defendant, but the sheriff seized the beer and some time later arrested the defendant.

The defendant filed a timely motion to suppress the evidence seized, for the reason that the same was obtained by an unlawful search of the curtilage of the residence of the defendant and in violation of his constitutional rights. This motion was overruled by the trial court, and the defendant assigns the overruling of said motion and the admission of said evidence as his first ground for reversing the case.

When the sheriff received the telephone call, the proper procedure for him to have followed was to procure a search warrant to search the premises, or a warrant for the arrest of the. defendant and any of the other parties there. He then could have legally gone upon the premises and, having served the search warrant, could have searched the premises, or, having first arrested the defendant, could have lawfully seized the liquors found on the person or in the possession of the defendant. The mere fact that a man is a public officer gives him no legal right to enter the residence or curtilage, or go upon the premises, of the defendant, except in a legal and orderly manner. The telephone call gave the sheriff no authority to search the premises of the defendant; neither'could he arrest him, unless a felony had been committed and there was reasonable cause to believe that the defendant had committed it, or unless an offense was being committed in the presence of the officers.

If we are to have enforcement of law, public officers, charged with the enforcement of the same, must proceed in a legal and orderly manner. One reason for the widespread disrespect for law arises out of the fact that public officers, charged with the enforcement of law, openly violate the law in the attempted enforcement of the same. The evidence in this case having been obtained by an unlawful search and seizure, and there being no other evidence in the record to support the verdict of. the jury, the cause is reversed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    CHARLEY JENKINS, v. STATE.
    No. A-6793.
    Opinion Filed August 24, 1929.
    (280 Pac. 477.)
    T. H. Davidson and M. D. Hartsell, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   EDWARDS, P. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Muskogee county of the crime of robbery, and his punishment fixed at a term of 10 years in the state penitentiary. The record discloses that, at the time charged, defendant robbed one Hal Stevens, taking from him by force the sum of $200.

The first contention is that the information is insufficient in failing to particularly describe the money taken in the robbery and in failing to allege the value of it. The information described the property taken as “$200 in ten and twenty dollar bills.” This is a sufficient allegation on this point. Where an information charges that money is taken either by larceny or robbery, it is properly construed to mean money of the United States, and the court will take judicial knowledge of its value. Section 2571, Comp. Stat. 1921; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Sims v. State, 64 Tex. Cr. R. 435, 142 S. W. 572.

It is next argued that the verdict is too indefinite to sustain the judgment. Omitting the formal parts, the verdict is:

“We, the jury in the above-entitled action, duly impaneled and sworn, upon our oaths, find the defendant guilty of robbery as charged in the information and leave his punishment to be fixed by the court.”

Counsel urge that this verdict is insufficient, in failing to state the degree of robbery for which defendant was convicted, and in failing to state that the jury were unable to agree upon the punishment. At the time the verdict was returned, objection to the form of the verdict was made, and the court inquired in what particular it was insufficient, and counsel declined to make more specific his objection. The defendant is charged with robbery in the first degree. Section 1790., Comp. Stat. 1921. The verdict finds him guilty as charged. In the absence of a more specific objection, the verdict is sufficient. Where the intent and purpose of the jury as expressed in their verdict can he clearly ascertained, it will be upheld, particularly when any defect claimed is not specifically pointed out at the time it is returned. Stansell et al. v. State, 30 Okla. Cr. 265, 235 Pac. 937; Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404.

It does not appear that counsel requested the court to require the jury to assess and declare the punishment, but this was submitted by the court under the provisions of sections 2750 and 2751, Comp. Stat. 1921. By the latter section it is provided:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

Under this provision of the law, it is not essential that the jury shall expressly state in their verdict that it is unable to agree upon a verdict.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    HERBERT JULIUS POPP v. STATE.
    No. A-6727.
    Opinion Filed August 24, 1929.
    (280 Pac. 478.)
    Crowe & Crowe, for plaintiff in error.
    Edwin Dabney, Atty. Gen.,, for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of selling intoxicating liquor and was sentenced to pay a fine of $500 and to serve six months in the county jail.

The state introduced the testimony of J. H. Harden and A. E. Smith, two undercover men living at Wichita, Kansas, and employed by the chief of Police at Enid. They testified that at the time charged they bought a half-gallon of whisky from defendant.

The principal contention is that the court, over the objection of defendant, permitted disqualified jurors to serve and he was thereby deprived of a fair trial. The record is that just- preceding the trial of this case Mrs. P. W. Popp, the mother of defendant, had been tried by a jury on a like charge, 44 Okla. Cr. 145, 279 Pac. 975, which returned a verdict finding her guilty. In the trial of her case the same two witnesses used in this case, Harden and Smith, were the only witnesses against the mother. The sale by the son is alleged to have occurred at the same place a few days after the offense charged against the mother. Over defendant’s challenge for cause, one of the jurors who had just tried the mother was retained on the jury in the trial of defendant in this case. One of the jurors in this case on voir dire testified:

“Q. Now then, do you think, having that knowledge in your mind, that this defendant is guilty at the present time? A. Yes.
“Q. Do you think at the present time that this defendant here is guilty of the crime charged against him? A. I don’t know — or they would not bring him here.
“Q. You say he is or he would not he here if he was not? A. The chances are he would not be here.”

Further,, in response to leading questions by the county attorney and the court, the juror stated in substance that if he had a reasonable doubt he would decide in favor of defendant. Defendant was compelled to use one of his peremptory challenges to excuse this juror. Another juror who had just sat on the trial of the mother testified:

“Q. If the testimony of the two witnesses in this case should be substantially the same as that which they gave this morning in this other case, wouldn’t you be inclined to believe it to be true? A. I believe I would. * * *
“Q. I say, if they testify in this case substantially as they did this morning, you would be more inclined to believe their testimony than you would be of other witnesses in the case? A. I believe so.”

Although defendant exhausted his peremptory challenges, this juror remained on the panel and participated in the verdict.

It is true that the case against the mother was not the same cause for which defendant was being tried, but the state’s witnesses were the same, the circumstances the same, the place at which the offense was alleged to have occurred was the same, the offense charged of the same kind. It is evident that under these circumstances a juror who had just tried the mother was disqualified to enter upon the trial of the son. The law permits the calling of talesmen to fill out a jury panel, and a reasonable desire to give an accused a fair trial would require that jurors under the circumstances narrated should be excused and if necessary talesmen called. Section 20, art. 2, of our Constitution, among other things, provides that in all criminal prosecutions the accused shall have a right to a trial by an impartial jury. Our attention has not been called to any case involving a similar state of facts, but in numerous cases we have said that where the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of accused. The mere fact that a juror may be of the opinion that he can try the case fairly and impartially is not alone the test as to his competency. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733; Schrimpsher v. State, 32 Okla. Cr. 371, 241 Pac. 201.

The overruling the challenge for cause was prejudicial error, depriving defendant of a fair trial.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    B. E. WOODARD v. STATE.
    No. A-6738.
    Opinion Filed August 24, 1929.
    Rehearing Denied September 14, 1929.
    (280 Pac. 479.)
    M. D. Hartsell, for plaintiff in error.
    Milam M. King, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of having possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of six months.

The evidence of the state was that W. J. Williams, a deputy sheriff, accompanied by Lee Norris and Charles Drennan, went to the home of the defendant, and that Drennan got out of the car and went in and purchased a quart of whisky and a half-gallon of Choctaw beer from the defendant; that they then went back to Checotah, where the witness obtained a search warrant and returned to the defendant’s premises accompanied by Lee Norris and J. W. Sampson, at which time the witness searched the premises of the defendant and found a gallon of whisky, 15 or 20 gallons of Choctaw beer, and quite a bit of wine. The witness testified that the Choctaw beer was intoxicating; that, in addition to the liquor, they found a copper boiler and a connection for a still and a barrel with a small amount of mash in it.

The defendant contends that the description in the affidavit and search warrant was insufficient to authorize the search of the premises. The defendant filed no motion to suppress the evidence, and a careful examination of the record reveals that he made no timely and proper objections to the introduction of the evidence seized under the search warrant. This court has held in a number of cases that the right to immunity from the consequences of an illegal search and seizure belongs only to the person affected, and that such right to immunity may be waived by the defendant. Ford v. State, 5 Okla. Cr. 241, 114 Pac. 274; Stack v. State, 4 Okla. Cr. 1, 109 Pac. 126.

When the state called its first witness, the defendant objected to- the officer testifying to what occurred on the first trip to the premises of the defendant and before any search warrant was issued. The state not having yet offered the evidence obtained under the search and seizure, the objection was made out of time. At no other place in the record does the defendant make any objection to the introduction of the testimony on account of the insufficiency of the affidavit or the search warrant. Further on in the trial of the case, the defendant objected to the testimony of the witness for the reason that the officer under his own statement is guilty of conniving to induce a man to violate the law so he could not make an arrest. Further on in the trial, the defendant objected to the evidence for the reason that the search warrant did not authorize the search for anything except whisky, and finally the defendant objected and asked that the evidence he excluded for the reason that this officer is the one who made the complaint, made the search, and made the arrest, and can only receive remuneration when he makes an arrest and succeeds in securing a conviction. But nowhere in the record did the defendant make any objection when the state offered the evidence procured under the search warrant upon the ground that the affidavit and search warrant were insufficient to authorize the search. The error complained of must affirmatively appear upon the record, and where the record discloses that the defendant did not raise the question there is nothing before this court for it to consider. See Price v. Territory, 1 Okla. Cr. 508, 99 Pac. 157; Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Beaubein v. State, 13 Okla. Cr. 440, 165 Pac. 213.

The defendant next contends that the punishment fixed by the jury is excessive. The jury in their verdict assessed the punishment at a fine of |50 and imprisonment in the county jail for six months. This court is not familiar with the conditions surrounding the defendant, but it appears from the evidence that a sale of a quart of whisky and one-half gallon of Choctaw beer was made the night before the raid, and that at the time of the raid the officers found one-half gallon of whisky, 15 or 20 gallons of Choctaw beer, quite a bit of wine, and a still. There is nothing in the record to indicate bias or prejudice of the jury, and we are of the opinion from all the facts and circumstances appearing in the case that the punishment is not excessive.

For the reasons stated the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    M. M. COOK v. STATE.
    No. A-6720.
    Opinion Filed August 24, 1929.
    (280 Pac. 626.)
    Hays Dillard, for plaintiff in error.
    Toby Morris, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county on a charge of stealing 48 bushels of oats, and his punishment fixed at a fine of $75 and to be confined in the county jail for a period of 10 days.

The defendant raises two questions in his brief, the first being that the evidence is insufficient to support the verdict of the jury. This court has many times held that, where there is any competent evidence in the record supporting the verdict of the jury, the verdict will not be set aside because of insufficient evidence. Miller et al. v. State, 43 Okla. Cr. 184, 277 Pac. 687; Richerson v. State, 43 Okla. Cr. 293, 278 Pac. 356; Butcher v. State, 44 Okla. Cr. 124, 279 Pac. 973; Berry et al. v. State, 44 Okla. Cr. 150, 279 Pac. 982.

The defendant next contends that the evidence was inadmissible, because obtained without a search warrant. The sheriff testified as follows:

“Q. That is, the defendant’s place? A. Yes, sir; and when we got there we drove up, and he come to the car, where we are, and I told him that Mr. Tucker had. lost some oats, and that we would like to look for the oats, or that we were looking for the oats, and ask if objected to us looking the place over, and he says, ‘Go ahead,’ and we went out to the barn, and there were two piles of oats.
“By the Court: Q. When you went to the defendant’s premises, did you have any warrant at all? A. No, sir.
“Q. When the officers drove upon the premises, did you drive in the yard? A. Yes, sir.
“Q. Who were the officers with you? A. Mr. Graham and Mr. Kinser.
“Q. Mr. Kinser is a constable, I believe? A. Yes, sir.
“Q. You found the defendant at home? A. Yes, sir; he was out at the barn; we stopped 15 or 20 steps from the barn; he came out to meet us.
“Q. You say you talked to him? A. Yes, sir.
“Q. Just tell us what was said, as best you can, in just the language used. A. Well, as well as I remember, I told Mr. Cook that Mr. Tucker had lost a load of oats, and ask him if he would object to us searching, and he said, ‘No, go ahead.,’ and that was about all I remember that was said there.
“Q. You told him that you were looking for a load of oats that Mr. Tucker had lost; then did you ask him permission to search his premises? Just what was your attitude, or did you tell him you were going to search his premises? A. No, sir; I never do' that. I ask if he objected to us searching; I never search any man’s place without asking his permission.
“Q. Would you have searched the premises anyway, if he had made objections to the search? A. No, sir; I never do that; when I ask him to search he said, ‘Go ahead and search.’
“Q. Was there any element of coercion at all, used on him, when he gave you permission to search? A. No, sir.”

It appears from the record that the sheriff made no claim to having a search warrant, but that the defendant consented to the search of the premises. Under the facts disclosed in this case, no search warrant was necessary. Section 30, art. 2, Constitution of Oklahoma, provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Under the provisions of this section of the Constitution the house of the defendant could not be seached without a valid search warrant, unless the defendant voluntarily consented to the same. The immunity guaranteed by section 30, art. 2, is a personal one, which may be waived by the defendant. The evidence in this case shows that the defendant did waive it.

The evidence being sufficient to support the verdict, and the errors of law complained of being without merit, the cause is affirmed.

EDWABDS, P. J., concurs.

DAVENPOBT, J., absent.


author: DAVENPORT, J.

text:
    GEORGE REIM v. STATE.
    No. A-6595.
    Opinion Filed August 31, 1929.
    (280 Pac. 627.)
    Paul Haunstein and J. B. Drennan, for plaintiff in error.
    Edwin Dahney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against, charged with unlawfully and wrongfully selling, exchanging, and delivering, and otherwise furnishing, one-half gallon of intoxicating liquor, to wit, whisky, to one Charles Peare, at the price and sum of $5, and was convicted and sentenced to pay a fine of $800 and imprisoned in the county jail for 40 days. Prom the judgment and sentence, the defendant has appealed to this court.

Charles Peare and Ed Heiland, witnesses on behalf of the state, testified they went to defendant’s home and wanted to get some whisky. The defendant told them he had some whisky, but would not sell it, but finally did sell one-half gallon of whisky, for which Charles Peare paid $5. The witnesses further stated they asked the defendant if they could get a gallon the next evening, and he told them they could. The witnesses admitted the sheriff; of the county gave them the money to go to defendant’s house and try to buy whisky from the defendant. Both Peare and Heiland testified that Peare bought the whisky from the defendant for $5. The witnesses denied they approached the defendant and told him that the wife of one of the witnesses was sick, and they wanted to get some whisky, and would return it the next day.

The defendant testified that the witnesses came to his house and wanted to get some whisky, and told him that the wife of one of the witnesses was sick and needed it very badly, and he agreed to let them have some, but that he did not sell them any whisky, and did not agree to sell them any. Other witnesses were called by the defendant, who testified to defendant’s previous good character, and to parts of the conversation that took place between the defendant and the state witnesses on the night the parties secured the whisky. This is in substance all the testimony in the case.

The defendant has assigned several errors, alleged to have been committed by the court in the trial of the case, but in the view we take of this record we do not deem it necessary to consider them. It is urged by the defendant in this case that he parted with the possession of the whisky he let the state witnesses have, upon a representation that the wife of one of them was sick and they needed some whisky, and he parted with the whisky upon this representation, believing that the wife was ill and was in need of a stimulant. It is also urged by the defendant that the inducement used by the officers was unjustifiable, and not the proper conduct of officers who desired to see the law enforced. If the testimony of the defendant in this case is to be believed, the deputies went to defendant’s home for the purpose of intending to entrap the defendant and inducing him to violate the law, and if the officers made the representations to the defendant he claims they did make, then they were making false statements in order to induce the defendant to violate the laws.

It has been held by many courts that decoys are permissible to entrap criminals, but not to create them; to present opportunities to those having intent to, or willing to, commit crime, but not to ensnare the law-abiding in unconscious offending.' The manner used in this case of procuring evidence and instituting prosecution against the citizenship of the state, and inducing them to commit crime, is to be deplored. While it is eminently proper that officers should show diligence in ferreting out crime and violations of the law, yet it does not occur to us that the theory of the law is predicated upon the idea, that parties should be deceived, and misrepresentations made to them, in order to induce them to violate the law, in order that a prosecution may be brought about. The machinery of the state should be put into operation to- detect and punish crime, but not to organize and institute it. The prevention of crime is one of the main purposes of our laws, not its encouragement of propagation.

The testimony in this case is sufficient to sustain the verdict of the jury. Without discussing the errors assigned by the defendant, we hold they are not of sufficient merit, in view of the testimony in this case, to warrant a reversal; but, in view of the facts stated in the record, that the sheriff provided the deputies with money to go to this defendant’s home to solicit him to let them have whisky, we feel, that a modification of the judgment from 40 days’ imprisonment and $300 fine to imprisonment in the county jail for 30 days and $100 fine would he proper, and the judgment, as modified, is affirmed. •

EDWARDS, P. J., and CHAPPELL,* J., concur..


text:
    NEAL WINFIELD v. STATE.
    No. A-6735.
    Opinion Filed August 31, 1929.
    (280 Pac. 630.)
    Scott Ferris and King & Crawford, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen,, for the State.
   CHAPPELL, J.

The plaintiff in error, Neal Win-field, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of receiving stolen property and sentenced to serve a term of one year’s imprisonment in the state penitentiary.

The facts ale substantially as follows: Winfield was the owner and operator of a restaurant in the city of Ada, on West Main-street. The evidence shows that on the date alleged in the information he purchased four buckets of lard from a couple of boys of the age of 15 years. Further, the record discloses that Winfield had been in the habit of buying lard and other merchandise from several boys of about that age along about the time he purchased this particular lard from Woodrow Jones and Coyte Morris. The evidence also shows that this lard was stolen from the store of one Sadler, which was located on Main street, the same street on which Winfield had his restaurant, and about two blocks east of Win-field’s place. The evidence on the part of the state also discloses that Winfield knew this lard was stolen at the time he bought it, and that he paid only about 60 per cent, of its fair cash value at the time he purchased it from these boys.

Winfield testified in his own behalf, and admitted that he purchased four buckets of lard that day. He testified that he bought this lard from the Jones boy and that he paid him $1.25 a bucket for it, instead of 75 cents, as testified to by the Jones boy, and that $1.25 was the fair cash value of the lard. Winfield also testified that the Jones boy told him that his father had gone- to Texas and had asked him to sell this lard for him when he was gone and to take the money and buy some school books with it. Winfield denied that he had purchased any lard before from the Jones boy, or from anybody else, and also, of course, denied that he had any knowledge that this particular lard was stolen at the time he. purchased it.

The defendant first complains that the witness Woodrow Jones, if anything, was an accomplice of the defendant, and that his evidence is not corroborated, and that therefore there was not sufficient evidence to support the verdict of the jury.

In the case of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, this court said:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

There is some evidence in this case to the effect that the defendant probably knew the witness Jones was going to steal some lard and bring it to him before this lard was brought to him, but there is no evidence to show that defendant knew that Jones was going to steal this particular lard, nor did Jones assist the defendant in the concealment of the lard after the defendant had purchased the lard from Jones. In other words, Jones did nothing to aid and assist defendant in the commission of the offense of receiving the stolen property. All Jones did was to steal the property and to sell it to defendant. Defendant was merely a fence for Jones in the receiving of stolen property, and had been for some time previous. Defendant, no doubt, by acting as a fence encouraged Jones and other boys of his age to commit larcenies that they otherwise would not have committed, but the only encouragement defendant gave to these boys, or to Jones in this instance, was to agree to purchase the stolen property. Such evidence is insufficient to make defendant an active aider and abetter in the larceny to such an extent that he could have been convicted of the crime of larceny. Nor does the evidence in this case make Jones an aider or abetter with defendant in the crime of receiving this stolen property to the extent that he could be convicted of that offense.

Under the evidence in this case it was not necessary for the state to corroborate the testimony of Jones as to the guilt of defendant in the crime of receiving this stolen property. The defendant, however, is mistaken in his claim that there is no evidence in the record to corroborate the witness Jones. Jones was corroborated by the fact that the goods were stolen at the time and from the persons he testified they were stolen from. Jones is further corroborated by the admission of the defendant that he bought four buckets of lard from the witness Jones on the same day and shortly after Jones testified he stole the lard. Jones is further corroborated by the fact that the business the defendant was engaged in caused him to use a large amount of the kind of goods stolen by Jones.

In the case of Butcher v. State, 44 Okla. Cr. 124, 279 Pac. 973, this court said:

“The defendant further complains that he could not be convicted of receiving stolen property on proof of a conspiracy or agreement to steal property generally. It is a sufficient answer to say that the evidence here relied upon by the state for a conviction is that defendant’s part of the unlawful agreement was to buy and receive the property provided the other parties stole it.
“In the case of Price v. State, 9 Okla. Cr. 370-373, 131 Pac. 1102, 1106, this court said: ‘It is urged on behalf of appellant that the trial court erred in not advising the jury to acquit appellant upon the ground that the evidence showed that appellant was guilty of the crime of grand larceny, in that he was a party to the original taking. We believe that appellant might have been convicted for grand larceny on the evidence in this case, but it does not necessarily follow that the evidence does not also sustain a verdict for knowingly receiving stolen property. It is the privilege of the county attorney to charge in an indictment the highest possible offense constituted by any act committed; but, if he sees fit to charge a lower offense which is sustained by the evidence and which calls for the infliction of a less degree of punishment, a defendant cannot be heard to complain that he should have been charged with and convicted of the higher offense included in the same acts, because the error of the county attorney inured to his benefit and he is bound thereby. Howard v. State, 9 Okla. Cr. 337, 131 Pac. 1100; McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297; Anthony v. State, 44 Fla. 2, 32 So. 819; Sisk v. State (Tex. Cr. App.), 42 S. W. 985.”

The defendant next contends that the court erred in admitting incompetent evidence against the defendant, which was clearly prejudicial to his substantial rights. This assignment of error relates to the admission in evidence of a confession made by the witness Jones as to his guilt of the larceny of the lard sold to the defendant, because Jones had been promised immunity from prosecution should he testify to the truth against defendant of receiving stolen property. Under section 21, of article 2 of onr Constitution, a person charged with crime shall not be compelled to give evidence which will tend to incriminate him. This was a privilege accorded to Jones, not to the defendant, but by section 27 of article 2, supra, it is'specifically provided: “Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”

Thus it is seen, not only that defendant is not protected under the constitutional provisions above quoted by reason of any confession made by Jones, but, on the contrary, the framers of the Constitution specifically provided that Jones could not claim this privilege against self-incrimina.tion under such circumstances, but where he had testified he would be granted immunity.

It is next contended that the trial court erred in permitting the state to prove the receiving of other stolen property by the defendant from other boys about the same age as Jones, at about the same time he received this stolen property from Jones.

In the case of State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, it is held, among other things:

“Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.” Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; Oldham v. State, 42 Okla. Cr. 209, 275 Pac. 383; Oldham v. State, 43 Okla. Cr. 314, 278 Pac. 663.

The evidence of the commission of other offenses of receiving stolen property herein referred to was permitted to go to the jury on the question of the defendant’s guilty knowledge and intent in the commission of this offense.

In 2 Wharton’s Criminal Law (11th Ed.) § 1229, it is said:

“Guilty knowledge, involving guilty intent, on the part of the defendant, is essential to the constitution of the offense. This may be shown either by the evidence of the principal felon, supported by corroborating* facts, or inductively by proving that the defendant bought them very much under their value, or denied their being in his possession, aided in concealing the stolen property, or the like. To show a guilty knowledge, other instances of receiving may be proved.”

Evidence of the reception by the defendant of other stolen property from other boys of a similar age as Jones, and at about the same time defendant received this stolen property from Jones, was competent and relevant on the question of guilty knowledge and intent 'as to the receiving of this particular stolen property. The evidence in this case shows that this defendant has been engaged in the practice of encouraging young boys to commit numerous larcenies in his community by paying them money for the stolen property. The only question in this case is whether or not the defendant knew the goods were stolen at the time he purchased them. Certainly, the defendant would be required to use the circumspection usual with persons in purchasing goods outside of the regular course of trade. Here the defendant purchased this lard at a greatly depreciated price. He bought the stuff from a boy, who would not be likely to be handling such property. The goods were delivered to him at the back door of his place of business, at an hour of the day when it must have been evident to him that the seller was trying to conceal the fact that he had possession of the property.

The evidence being sufficient to support the verdict, and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    STILES RELF v. STATE.
    No. A-6796.
    Opinion Filed August 31, 1929.
    Rehearing Denied September 28, 1929.
    (280 Pac. 851.)

      W. R. Withington, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, Stiles Relf, hereinafter referred to as the defendant, was convicted in the district court of Oklahoma county of the crime of murder and his punishment fixed at imprisonment in the state penitentiary for life.

This killing occurred in the town of Luther, on the 21st day of March, 1927. The defendant is a negro, and Joe Winters, the person killed, was also a negro. It appears that some negroes, who lived in or near the town of Luther, were engaged in a crap game in a room of a building that belonged to a negyo by the name of Jackson. This building was located on a street running north and south, the building facing east, and the crap game took place on the ground floor of the building in the front room. The crap game progressed until about 12:30 or 1 o’clock in the morning. The parties had been drinking considerably, and shortly before the crap game broke up a white man by the name of Will Higdon, who appears to have been section foreman for the Frisco Railroad at Luther, joined the game, and just a short time before the game broke up it appears that Higdon and a negro by the name of George Diggs had a little spat, the result of Higdon calling Diggs “a nigger,” but it appears that Diggs and Higdon made up their differences and that the defendant assisted in making friends between the two. After the game broke up, this defendant and Higdon left together and went to the house of a Mexican by the name of Carbajals looking for something to drink. Failing to get anything to drink there, according to the testimony of Higdon, he and the defendant, went over to the defendant’s house and proceeded to drink some beer, and the defendant insisted on going back to the crap game and shooting the fellows up. Higdon says that he demurred to this, but that the defendant got his shotgun and compelled him to walk ahead of him down to the building where the crap game had been taking place. It appears that as soon as they got down to the building, while there was no crap game in progress, four or five negroes, including the deceased, were standing around the table where the crap game had taken place eating some barbecue. Higdon says that when the defendant got even with the front door, he saw him raise his shotgun and point it at the door (the upper part of the door being glass), and that he (Higdon) started to run away in a northeasterly direction towards his home, and immediately heard a shotgun fired, but did not look to see what became of the defendant. The deceased was killed by being shot in the head and neck with a shotgun loaded apparently with No. 6 shot. George Diggs, another negro who was there, also received a shotgun wound in the face, which wound proved not to be fatal. When the shotgun was fired, the lamp that was burning in the building immediately went out, and it was impossible for those in the building to see who fired the shot.

There is a sharp conflict between the testimony of Will Higdon and that of the defendant in this case. The testimony- of each practically coincides up until the time they left the house of Carbajals. After that time, the defendant testifies that Higdon, as soon as he came out of the house of Carbajals, fired a pistol shot and asked the defendant to go down there and help him blow those negroes up, -but the defendant insists that he refused and went home and went to bed, and that Higdon did not go home with him and that they had not been drinking; that Higdon was drunk and that he saw him go off: in a northerly direction towards the place Avhere the deceased was killed; that some time after he and Higdon stopped by Carbajals’ house, and after he had gone to bed, the shotgun was fired, and that he did not have anything to do with it. In this story the defendant is corroborated by the testimony of his wife.

When the defendant was first arrested, lie told the officers that he went home at 8 o’clock and went to bed and was not out of the house again during the night. Later, when confronted in the county attorney’s office by the witness Low, he admitted that he. was back at the place where the homicide was committed and left-there at about 12:30, instead of 8 o’clock, as he had previously stated.

The defendant first contends that the trial court erred in permitting the county attorney to repeatedly ask incompetent, irrelevant, and immaterial questions, and that the county attorney was thereby guilty of misconduct, prejudicial to the substantial rights of the defendant. This court has held that it is prejudicial error for the county attorney to repeatedly ask questions which have for their purpose the getting before the jury of incompetent, irrelevant, and immaterial evidence, and for the county attorney to take an exception to the ruling of the trial judge in sustaining objections to such questions.

On the other hand, this court has held, in the case of Hendricks et al. v. State, 23 Okla. Cr. 19, 212 Pac. 330:

“The fact that the county attorney asked some questions which may have called for incompetent testimony is not prejudicial error, where the trial judge promptly sustained objections and no incompetent evidence was permitted to go to the jury, and there was no such repeated asking of these questions and exceptions to the ruling of the trial judge by the county attorney that amounted to prejudicial misconduct.”

In the case at bar defendant’s counsel in his brief has called the court’s attention to only two instances wherein it is claimed the county attorney attempted to elicit incompetent evidence after the trial judge had ruled-that such evidence was not admissible. The first question complained of was as follows:

“Q. Now, counsel asked you if you had any opinion or conception of who fired that shot. Will you just tell this jury in your own opinion who did fire it?
“Mr. Withington: I object to that as calling for a conclusion of the witness.
“The Court: Sustained.”

It appears from the record that the reason for the asking of this question by the county attorney was because defendant’s counsel had asked the witness if he had any opinion or conception of who fired the shot. In a second instance pointed out by defendant, the county attorney was cross-examining the defendant as to a certain transaction which the defendant had previously stated took place at his house when he first told his story to the county attorney at his office the next day. The state was trying to show that the statement then made to the county attorney was inconsistent with the testimony then being given by the defendant, in which the defendant testified that he went to his house to get some wood and failed to say anything about having gotten whisky at that time. These questions were being asked for the purpose of impeaching the testimony of the defendant, by showing that his testimony was materially different to his voluntary statement made to the county attorney. This record does not disclose the repeated asking of incompetent questions on the part of the county attorney, and the repeated exceptions to the rulings of the tidal judge in sustaining objections to such incompetent questions, such as was held to be reversible error in the case of Pickrell v. State, 5 Okla. Cr. 391, 116 Pac. 957.

This assignment of error is governed by the decision of this court in the case of Hendricks et al. v. State, 23 Okla. Cr. 19, 212 Pac. 380, and the later decisions of this court following the rule laid down in the Hendricks Case.

It is next contended that the trial court erred in permitting the state, on cross-examination of the defendant, to put defendant’s character as a dangerous man in issue when defendant had not put his character or reputation in issue. It appears from the case-made that the following proceedings were had:

“Q. Well, I will ask you if it is not a fact when you get drank you are a fellow that wants to fight and kill people? A. No.
“Mr. Withington: That is objected to as incompetent, irrelevant and immaterial; for the further reason that the witness had not put his reputation in issue.
“The Court: Answer the question. He has answered the question. Go ahead.
“Mr. Withington: Exception.”

It will be noted that the defendant had answered the question before the objection was made and before any ruling of the trial court was given. There was no motion to strike the evidence and no request that the court instruct the jury to not consider such evidence. Prom the record it appears that the trial judge merely indicated by his ruling that the objection came too late because the witness had already answered the question; the only way then for the defendant to preserve the question for review was by motion to strike the answer and a request that the trial judge instruct the jury to disregard the evidence. Inasmuch as the answer was favorable to the defendant, his counsel probably preferred to let the answer stand, rather than have a ruling on a motion to strike both the question and the answer. Since the defendant failed to move to strike the answer and for the instruction to the jury to disregard the evidence, the record presents no question for this court to pass upon.

Defendant next contends that the trial court erred in giving instruction No. 10. This instruction is a definition of manslaughter in the first degree and is as follows:

“Homicide is manslaughter in the first degree in the following cases:
“First: When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second: When perpetrated without a design to effect death and in a heat of passion, but in a cruel and unusual manner and by means of a dangerous weapon unless it is committed under such circumstances as constitute excusable and justifiable homicide.
“Third: When perpetrated unnecessarily, either while resisting an attempt by .the person killed to commit a crime, or after such an attempt shall have failed.”

Defendant admits that the instruction is a correct definition of manslaughter in the first degree, but contends that the instruction is deficient, in that “it fails to take into consideration the element of intoxication on the part of the defendant.” The defense interposed was that of an alibi and that the crime was probably committed by another person, naming him. The defendant and all his witnesses testified that the defendant was not intoxicated on the night of the homicide.

In the case of Panther v. State, 43 Okla. Cr. 128, 277 Pac. 247, this court said:

“When a defendant who has a right of election as to several defenses takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.”

In the case at bar the defendant elected to rely upon the defense of alibi and that the crime was probably committed by another person, naming him. An instruction upon the defense of justifiable homicide was unnecessary and not required by the evidence in the case.

In the case of Thomas v. State, 18 Okla. Cr. 648, 197 Pac. 853, 857, Judge Bessey, speaking for the court, in the body of the opinion says:

“The defense of self-defense is inconsistent with the defense of intoxication to such an extent as to renden one incapable of forming an intent or design to kill. If the defendant was so intoxicated as to be incapable of forming such intent, he would at the same time be incapable of having motives that would cause him to act in self-defense.”

In the case at bar, if the defendant did not commit the crime and the samé was committed by another person as he contends, it was absolutely immaterial whether the defendant was sober or drunk at the time of the commission of the offense charged. The court was very liberal in giving the defendant the benefit of an instruction on manslaughter, and he cannot now complain that such instruction was insufficient.

Finally, the defendant contends that the trial court erred in failing to instruct on the law applicable to circumstantial evidence. There is no request for any instruction on this, subject. In the case of Newcomb v. State, 23 Okla. Cr. 173, 213 Pac. 900, 901, in paragraph 6 of the syllabus, this court said :

“No request for an instruction on the law of circumstantial evidence having, been interposed, it is held that the failure to instruct on that subject was not reversible error in this case.” Klaber et al. v. State, 35 Okla. Cr. 238, 250 Pac. 142.

In the case at bar the state does not rely on circumstantial evidence alone for a conviction. The testimony of the witness Higdon is that the defendant got his shotgun and, forcing the witness to accompany him, announced “that he was going over there and blow those sons of bitches up”; that when they were immediately in front of the door of the place where the homicide was committed and four or five steps from the door, the defendant raised the gun to his shoulder and pointed it toward the door, and after the witness turned away he heard the roar of the gun as the shot was fired. Evidence of. this character constitutes more than a circumstance tending to connect the defendant with the commission of the crime.

In the case of Hendrix v. U. S., 2 Okla. Cr. 240, 101 Pac. 125, paragraph 4 of the syllabus, this court said:

“In a case where the prosecution does not rely upon circumstantial evidence alone for a conviction, the accused is not, as a matter of right, entitled to have the jury instructed fully upon the l'aw of circumstantial evidence.” Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102; Aday v. State, 28 Okla. Cr. 201, 230 Pac. 280; Hagerty v. State, 22 Okla. Cr. 136, 210 Pac. 300.

Under section 2822, C. O. S. 1921, the Legislature specifically provided that no judgment of conviction should be reversed because of error in the instructions, unless the court can say after a consideration of the entire record that such error of itself tended to deprive the defendant of a fair trial.

The evidence is amply sufficient to support the verdict of the jury. There was no error of law committed in the trial of the case sufficiently prejudicial to the defendant to justify a reversal of this case.

For the reasons stated, the judgment is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    JOHN INSELMAN v. STATE.
    No. A-6453.
    Opinion Filed September 7, 1929.
    (280 Pac. 628.)
    C. B. Leedy, for plaintiff in error.
    Edwin Dabney., Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Ellis county, on 'a charge of having possession of whisky with intent to barter, sell, give away, or otherwise furnish the same to other persons, and was sentenced to pay a fine of $300 and costs and to be imprisoned in the county jail for 30 days. Motion for new trial was filed, considered, and overruled, and exceptions saved and the defendant has appealed to this court.

The defendant moved to suppress the testimony secured by the officers under the search warrant for the reason that the affidavit for the search warrant did not authorize them to search the barn and shed where they claim they found the whisky. The affidavit for the search warrant described the premises as follows:

“The above named defendant, John Inselman, at and on the following lands, in a certain residence building thereon, to wit: The N.W.%, N.% N.E.%. N.% S.W.%, sec. 14, twp. 16 N. T. 23 W. I. M., Ellis county, Oklahoma, said residence building being then and there used as a place of public resort, did then and there unlawfully and willfully have in their possession and under their control, and did then and there keep, and do have in their possession and under their control, and do now keep for the purpose of selling, bartering, giving away and otherwise furnishing certain intoxicating liquors, described as follows, to wit: Whisky.”

The record discloses that the residence was searched and no whisky was found; the officers then searched a barn with a shed attached which was some distance from the house and found some whisky. It is urged by the defendant that the evidence obtained under the search warrant was inadmissible for the reason that the affidavit for the search warrant limits the search to the residence of defendant; that the barn and shed where they claim the whisky was found was not within the curtilage, and only such buildings as came within the curtilage could be searched; that the building searched was more than 72 yards from the dwelling house.

At the close of the testimony, the defendant Inselman renewed his motion to quash the search warrant and to exclude the evidence on the ground that the evidence was unlawfully procured and was inadmissible. The defendant insists that the barn and shed, where the officers claim they found the whisky, is outside the description of the search warrant to search the residence; that the barn and shed was more than 72 steps from the house, and not within the inclosure of the residence; that the shed attached to the barn is a closed building, has one small window and one door on the south, and the door was closed at the time the officers searched the premises; that the witness Devenny opened the door to that part of the barn called the shed. The affidavit in this case stated the defendant in a certain residence building is keeping liquor for sale, and has liquor in his possession for the purpose of selling.

This court, in Turknett v. State, 36 Okla. Cr. 401, 254 Pac. 985, in the second paragraph of the syllabus, has defined curtilage as follows:

“Curtilage, in law, means a small piece of land, not necessarily inclosed, around a dwelling house, and generally includes the buildings used for domestic purposes in the conduct of family affairs. The term has no application to any building not used as a dwelling.”

In Martin v. State, 36 Okla. Cr. 82, 252 Pac. 451, in the second paragraph of the syllabus, this court said:

“The description of the premises to be searched must be described in the affidavit and search warrant with such particularity that no discretion is left to the officer executing the warrant as to the premises he is authorized to search.”

The affidavit in this case specifically describes the building to be searched by the officers, and we hold that the affidavit and search warrant is not sufficient to justify the search of the barn and shed of the defendant not within the curtilage of his home. The motion to suppress the evidence of the state should have been sustained.

There are other errors assigned, some of which possess merit; but, the view we take of this record, it is not necessary to consider them.

The judgment of the trial court is reversed.

EDWARDS, P. J., concurs.

CHAPPELL, J.,, dissents.


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    A. J. SHARER v. STATE.
    No. A-6123.
    Opinion Filed September 7, 1929.
    (280 Pac. 629.)
    See, also, 40 Okla. Cr. 420, 269 Pac. 511.
    R. M. Godfrey and A. T. Anglin, for plaintiff in error.

      Lloyd C. Colter, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Nowata county on a charge of having unlawful possession of a still and mash, and his punishment fixed at a fine of $150 and imprisonment in the county jail for 30 days.

The sheriff testified that he had a search warrant authorizing the search of the S. E. % of the N. E.14 and the N. E. % of the S. E.%, section 14, township 29 north, range 14 east in Nowata county; that, accompanied by Buck George, Lark Pace, and E. A. Haverfield, he searched the premises described in the search warrant, and found the defendant in the house on the premises, but found no liquor of any kind, finding a case and a half of bottles which apparently had never been used; that across the road on another piece of land, and about half a quarter of a mile from the house where defendant was found, was a two-room box-car house, in which the officers found seven barrels of mash and a still in operation. These witnesses all testified that the defendant denied any connection with the still, and, when asked if they knew positively that the defendant was the owner of a still and mash, they each answered, “No, sir.” None of the officers had ever seen the defendant around the premises, or closer to the still than the house where the defendant was found.

The defendant was charged with the possession of a still and mash. There is not a word of evidence in the record to show that the defendant ever owned, or was ever in possession of, or ever had anything to do with, the still and mash seized by the officers; but, on the contrary, each one of the state’s witnesses testified that, as far as they know, the defendant had nothing to do with the still or mash. It is the duty of this court, where there is an entire failure of evidence, to set aside the verdict and reverse the judgment of conviction. Groves v. State, 23 Okla. Cr. 336, 214 Pac. 736; Tislow v. State, 36 Okla. Cr. 346, 254 Pac. 511; Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175.

For the reasons stated the cause is reversed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    BARTON SMITH v. STATE.
    No. A-6664.
    Opinion Filed August 10, 1929.
    Rehearing Denied September 7, 1929.
    (280 Pac. 317.)
    Eaton, Burroughs & Cavanaugh, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county on a charge of larceny of a domestic animal, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

It is first contended that the trial court erred in overruling the demurrer to the evidence in this case. The defendant claimed that there was an entire failure on the part of the state to prove that the hog sold by the defendant and his codefendant Parks at the town of Morris was the property of Hulsey. Hulsey testified that he had a hog of that kind which ranged on these premises. Young Parks testified, to the fact that a hog of the description of Hulsey’s was the one sold by him and this defendant, Smith, to Clark on the 2d day of February, 1929, in the town of Morris. Mrs. Parks testified that Hulsey had claimed this particular sow as his property. Jim Castro testified that the defendant gave him and Oscar Parks 50 cents apiece not to tell that they saw the hog in the slaughter pen. He testified that it was the same one that had been around the place; he testified that Mrs. Parks took some hogs to town that day, but that this one was taken separately by the defendant and his codefendant, Arthur Parks, and that it was the hog that had been around the place probably three months. The facts disclosed by this evidence constituted a chain of circumstances which show conclusively that the sow taken by this defendant and Young Parks was the sow that belonged to Hulsey and was the particular property alleged in the information to have been stolen by defendant from Hulsey.

The defendant next complains that the court erred in giving instructions No. 6, 8, 10. We have been unable to find in the record where the defendant saved any exceptions to the instructions. Where no exceptions to any of the instructions given by the court are taken, the accused as a matter of right has no cause for complaint against the instructions given, unless they appear to be fundamentally wrong and prejudicial to the rights of the accused. McCullom v. State, 22 Okla. Cr. 46, 209 Pac. 781; Inman v. State, 22 Okla. Cr. 162, 210 Pac. 742; Cruzan v. State, 13 Okla. Cr. 71, 161 Pac. 1179.

An erroneous instruction, unless fundamentally wrong, will not be ground for reversal unless excepted to at the time of the trial as provided by law. Anderson v. State, 7 Okla. Cr. 491, 124 Pac. 86; Eccleston v. State, 12 Okla. Cr. 106, 152 Pac. 337; May v. State, 12 Okla. Cr. 108, 152 Pac. 338.

In the case of Ford v. State, 5 Okla. Cr. 241, 114 Pac. 273, 274, this court said:

“Where the record shows no objection or exception to the instructions of the trial court, such instructions will not be examined by this court for the purpose of discovering other than fundamental errors on appeal.”

Instruction No. 6 is not an accurate statement of the law relative to the larceny of live stock but we believe that, when this instruction is considered in connection with instruction No. 12, the jury could not have been misled into believing that it Was not incumbent upon the state to prove that the hog stolen was the property of Ernest Hulsey and that it was necessary for the jury to find that the thief or thieves intended to deprive the true owner of such property whomsoever he might be.

It is a general principle of law in a criminal case that a defendant is entitled to be tried on legal evidence alone and have his guilt determined by the jury upon correct instructions as to the law, but it does not necessarily follow that every error in the admission or rejection of testimony and in the instructions to the jury will be ground for reversal. In order to constitute ground for reversal, an error must relate to some material matter and must result in depriving the defendant of some substantial right to his injury. 16 Corpus Juris, 1148; Thompson v. State, 6 Okla. Cr. 51, 117 Pac. 216; Munson v. State, 13 Okla. Cr. 569, 165 Pac. 1162.

In the case of Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157, this court, in paragraph 3 of the syllabus, said:

“When the instructions taken and considered together embrace the laAV of the case, though one of them may be erroneous, still for such error a judgment of conviction will not be reversed, unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant.”

The theory of the defendant apparently was that the animal had strayed on the premises of Mrs. Parks and that he could not be convicted of larceny for the taking of the same unless he had the unlawful intent to steal it at the time the animal came on the premises of Mrs. Parks. The court gave instructions Nos. 8 and 10 apparently upon this theory of the defendant. The giving of the same was probably unnecessary, but was favorable to the defendant, and he could therefore have no just cause of complaint for the giving of the same.

The instructions, when considered all together, reasonably and fairly state the law of the case. Under the authorities cited in this opinion, this court would not be justified in reversing the case because of the giving of the instructions complained of. The defendant did not take the witness stand, saved no exceptions to the instructions, and relies wholly upon technical error of law for a reversal of the judgment. He had a fair trial. The jury returned a verdict of guilty upon sufficient evidence, and the cause should not be reversed for the errors complained of.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


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    EARL BINGHAM et al. v. STATE.
    No. A-6740.
    Opinion Filed September 7, 1929.
    (280 Pac. 636.)

      Simons, McKnight, Simons & Smith, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Garfield county on a charge of grand larceny, and their punishment fixed at 100 days in the state penitentiary for each of them.

The defendants assign numerous errors committed by the trial court, which they contend require a reversal of this case. The first error complained of by the defendants is that the prosecution should have been under section 2119, C. O. S. 1921, which reads as follows:

“Every person who shall take, steal and carry away any domestic fowl or fowls in the nighttime, from the messuage of another, or from the premises upon which the dwelling house of another is situated, and any person purchasing or receiving such domestic fowl or fowls, knowing them to have been stolen, shall be guilty of grand larceny, regardless of the value thereof, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding two hundred dollars, or by confinement in the county jail not exceeding two months, or by both such fine and imprisonment. ”

The state elected to prosecute the defendant for grand larceny, under section 2104, O. O. S. 1921, which reads as follows:

“G-rand larceny is larceny committed in either of the following cases:
“First. When the property taken is of value exceeding twenty dollars.
“Second. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another.
“Larceny in other cases is petit larceny.”

The defendants contend that, since the evidence shows the larceny to have been chickens in the nighttime, the state was bound to prosecute under section 2119, supra, instead of section 2104, supra. Section 2119, supra, makes chicken stealing in the nighttime and from the messuage of another, or from the premises on which the dwelling house of another is situated, grand larceny, and that, too, without regard to the value of the chickens stolen. Under section 2104, supra, the property stolen must be of the value of more than $20, in order to constitute the stealing grand larceny, and the value must be proven.

In the case of State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, this court said:

“Where specific statutes prescribe different penalties prosecution may elect. As between specific statutes prescribing different penalties for any offense, the state may elect to try an offender under either statute.”

The state having elected to prosecute for grand larceny, such prosecution is a bar to a prosecution under section 2119, supra, the special statute on the stealing of chickens in the nighttime.

The defendant next contends that the court erred in permitting the county attorney to ask prejudicial, incompetent, irrelevant, and immaterial questions on cross-examination of the witnesses Mrs. Hulbert Carter and Hulbert Carter. Bex Allen, a witness who testified for the state that he assisted the defendants in the commission of the crime, with which they are charged in this ease, was a brother of Mrs. Carter and a brother-in-law of Mr. Carter. Allen had testified that he went with the defendants and aided them in the stealing of the chickens alleged in the information. The witness Mrs. Carter, testifying for the defendants, said that she was a sister of the witness Bex Allen; that at the time it is claimed the chickens were stolen, and at the time Bex Allen, her brother, claimed to have gone to the home of Earl Bingham and to have participated in the stealing of the chickens, the witness was living with her father and the father of Bex Allen on his farm in the northwestern part of Kingfisher county, and that Bex Allen was also staying there, and that on the morning of Thursday, February 11, 1926, Bex Allen and the witness’ husband left her father’s farm for the purpose of coming to Enid, and remained away until Saturday morning, February 13th, when Bex Allen returned to the farm, and he left home that morning on horseback, stating that he was going to Earl Bingham’s to work. This also corroborates the testimony of Earl Bingham and the other witnesses as to the time when Bex Allen came to Bing-ham’s farm and went to work, and flatly contradicts the testimony of Bex Allen with regard to his being at Bing-ham’s on Thursday and Friday and Friday night.

On cross-examination, the county attorney asked the witness Mrs. Carter the following questions, and the followings proceedings were had:

“Q. I will ask you, at this time, if your husband isn’t charged with the larceny of chickens in Kingfisher county, and is out on bond, and Rex Allen and Albert Allen are witnesses against your husband in that case?
“Mr. P. C. Simons: Objected to as incompetent, irrelevant, and immaterial, and ask the court to admonish the county attorney that he has no right to even ask such a question as that.
“The court: Objections overruled.
“Mr. P. C. Simons: To which the defendants and each of them except.
“Mr. Mitchell: I want to show the interest this witness has with reference to this proposition.
“The Court: I understand it. You needn’t discuss it.
“Mr. P. C. Simons: To which the defendant and each of them except.
“Mr. Mitchell: Q. Just answer the question. A. Shall I answer that question?
“Q. Yes; answer it. A. Yes.
“Q. That is true, isn’t it? A. Yes.
“Q. That is true, isn’t it? A. Yes.
“Mr. P. C. Simons: The defendants and each of them now move the court to strike out the answer of the witness as being wholly incompetent, irrelevant, and immaterial, and not cross-examination, and to admonish the jury to disregard the same, and also to admonish the county attorney that he has no right to ask such questions.
“The Court: Overruled. . He has a perfect right to do so.”

The witness Hulbert Carter, testifying for the defendants, testified to practically the same state of facts as that of his wife. On cross-examination the county attorney asked the witness the following question and the following proceedings were had:

“Q. Now, I will ask you, Mr. Carter, if at this time you are not charged with the larceny of chickens in Kingfisher county, and now out on bond, and if Rex Allen and his brother, Albert Allen, are witnesses against you in that case?
“Mr. Simons: Wait a minute. To which the defendants and each of them object as wholly incompetent, irrelevant, and immaterial, not proper cross-examination, and ask the court, in addition to that, to admonish the county attorney that he has no right to ask such a question of this witness.
“The Court: Objections are overruled.
“Mr. Simons: To which the defendants and each of them except.
“A. I am, I guess.”

Farther on in the cross-examination the county attorney asked the witness if he knew a man named Hildebrand; also a Mr. Bowen, Ed Turk, and Fred Wardick. The witness was then asked if he knew where these men lived, and, replying in the affirmative, he was asked if he had ever been on these men’s places. To this the witness answered that he had threshed on these various farms, and he was then asked if he was sure that the times he stated were the only times he had been on these farms owned by Hildebrand, Mr. Bowen, Ed Turk, and Fred Wardick. The county attorney thereupon asked the witness if he had heard about Hildebrand having some chickens stolen; if be bad beard about Mr. Bowen baying some chickens stolen; if be bad beard about Ed Turk baying some chickens stolen; if he bad beard about Fred Wardick baying some chickens stolen. To all of these questions the defendants duly excepted as incompetent, irrelevant, and immaterial, and the court required the witness to answer each of these questions.

The defendants contend that all of this evidence was incompetent, irrelevant, and immaterial, and highly prejudicial, and that because of the misconduct of the county attorney in asking these improper questions, and the error of the court in admitting this evidence, tended to prejudice the minds of the jury, and prevented the defendants from having a fair trial. The testimony of the witnesses Mr. and Mrs. Garter was directly in conflict with her brother, Rex Allen. Their testimony and his could not possibly both be true. The effect of asking these questions, and forcing the witnesses to admit that Hulbert Garter had been charged with chicken stealing in another county, and that the. witness' Rex Allen was to be a witness in that case against witness Garter, was to discredit the testimony of such witnesses, and detract from its weight in opposition to that of Rex Allen.

In the case of Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, this court says:

“When the record discloses that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to arouse the prejudice or passion of the jury and prevent the accused from having a fair and impartial trial, a conviction had should be set aside by the trial court, and a new trial awarded. * * * The repeated asking of incompetent questions, which clearly have for their purpose the intimátion of something to the jury that is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions. In jury trials, incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to the harmful matter they are supposed to contain.” Brower v. State, 26 Okla. Cr. 49, 221 Pac. 1050; Salyar v. State, 25 Okla. Cr. 433, 221 Pac. 118; Porter v. State, 8 Okla. Cr. 64, 126 Pac. 699; Hargrove v. State, 37 Okla. Cr. 386, 258 Pac. 1060.

There is no offense with which a defendant can be charged, which creates more prejudice against him with a jury composed in whole or in part of farmers, than that of chicken stealing. The questions asked the Carters by the county attorney were calculated to carry the idea to the jury that Carter was himself a chicken thief, and that his wife by her testimony was trying to shield him even against, her brother. Not only should the court have sustained the objections of the defendants to this improper testimony, but he should have promptly admonished the county attorney not to ask such questions, and should have instructed the jury to disregard such evidence.

The defendants next contend that the trial court was guilty of prejudicial conduct which deprived the defendants of a fair trial. The county attorney examined the witness Cupps about experiments he had made with his own chickens, to see whether they would go home to roost. He testified that he took 12 of the chickens supposed to have been stolen from him by these defendants, and set them down at a convenient place on his premises, and that these chickens went home to roost as though they were familiar with the place. The witness then testified that he got six chickens from a neighbor, and took them to the same place where he had placed the former chickens and that they not only failed to go to his henhouse to roost, but that he was unable to drive them there to roost. The defendants objected to the introduction of this kind of testimony which was overruled by the trial court, and then the trial court used the following language:

“The Court: We will all recognize the old saying that chickens will go home to roost, all right. There is no question about that proposition, and the chickens will go to their home to roost. The very fact that a certain bunch of chickens, or a flock of chickens, will go to its recent home to roost, would not prove that some other set of chickens would go to some other place. I don’t regard that as being competent. You would just prove the old saying that chickens will go home to roost, but you would not prove anything that would tend to show that those chickens were not his chickens. That is my idea about it. You would establish the fact that chickens will go home to roost. That was competent testimony and objections were made to it. Objections are overruled.
“Mr. Simons: To which ruling of the court the defendants Earl Bingham and Ernest Chappell except.”

In the case of Pilgrim v. State, 3 Okla. Cr. 55, 104 Pac. 383, 386, this court said in the body of the opinion:

“Jurors are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case.”

Mr. Thompson in his work on Trials, says:

“Sec. 218. Undoubtedly any remark of the presiding judge made in the presence of the jury, which have a tendency to prejudice their minds against the unsuccessful party, will afford ground for a reversal of the judgment.’’

The comments of the trial judge were improper, and were no doubt taken by the jury as the opinion of the trial court that the weight of the evidence was that the chickens in controversy, and charged to have been stolen by these defendants, actually were the chickens stolen, because they went home to roost.

The defendants assign numerous other grounds of error, but it is unnecessary for the court to pass upon them, for the reason that, if the state again puts the defendants on trial, the errors complained of will probably not occur again.

For the reasons stated, the cause is reversed and remanded.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    PETER CHAPPELL v. STATE.
    No. A-6660.
    Opinion Filed September 7, 1929.
    (280 Pac. 639.)

      W. T. Drake and Watts & Broaddus, for plaintiff, in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Wagoner county of manslaughter in the first degree and his punishment fixed at 20 years in the state penitentiary.

The record discloses that the defendant is a negro, and that the deceased, P. A. Anderson, also was a negro. At the time charged Anderson had been acting as a peace officer, but his authority had been taken from him a short time prior to the homicide. The trouble between them arose as follows: A friend of defendant had a revolver stolen from him, and defendant had been promised $10 if he would recover it, and he promised deceased $5 for his assistance. Deceased recovered the weapon, but refused to deliver to the defendant until he had been paid the $5. Defendant then filed a replevin suit. On the morning of the difficulty, deceased went to the home of defendant, and defendant testified deceased attempted to arrest him to take him to the town of Porter, and that he killed him in resisting an unlawful arrest. Deceased was shot six times. The physicians who examined the body testified that any one of five of the wounds would have been fatal. Pour of them were in the back. The evidence is sufficient to support the verdict and judgment.

The first assignment of error argued is that the county attorney in his opening statement committed prejudicial error in stating that the inhabitants of Clarksville, where the homicide occurred, were practically all of negro blood and made their living by violating the law. This, of course, was an improper statement, and an objection was promptly sustained by the court. No request that the statement be withdrawn, or that the court admonish the jury to disregard it, or to reprimand the county attorney, was made. It has been generally held by this court, under similar circumstances, that the error is not reversible.

It is further argued that there was misconduct of the jury during the course of the trial. Under this assignment it is shown that during the trial, and before the case was finally submitted to the jury, the bailiff in charge of the jury took them to the county jail and waited at the reception room while a deputy sheriff or jailer showed the jury through the jail. The evidence is not very clear, but we gather that at least one of the jurors remained with the bailiff in the reception room or at the door of the jail proper while the others went through the jail, which took some 10 or 15 minutes or longer. The jailer testified that he merely showed the jurors the way in which the jail was kept and where previously some bank robber or others had escaped from jail; that this case was not mentioned. The foreman of the jury, the only juror to testify, said substantially the same as the jailer. It was also shown that in the course of the trial one or two of the jurors while in the courtroom separated themselves from the other jurors and went over near a stove, apparently for the purpose of warming, and that one of them passed remarks with the sheriff and others who were about the stove. The sheriff upon this point testified that he did not recall that the jurors even spoke to him on the occasion in question, but that at no time was the case on trial ever mentioned. Some other matters are presented in the brief and argument, but they are not of sufficient importance to call for special discussion. Where it is claimed that there is misconduct of the jury by reason of separation before the case is finally submitted, the burden is on the defendant to show that he suffered some prejudice by reason of the separation. Nowabbi v. State, 36 Okla. Cr. 97, 252 Pac. 442; Forester v. State, 36 Okla. Cr. 111, 252 Pac. 861; Crow v. State, 39 Okla. Cr. 135, 263 Pac. 677.

Where the separation occurs after the case is finally submitted to the jury, the burden is on the state to show that no prejudice resulted by reason of the separation. Selstrom v. State, 7 Okla. Cr. 345, 123 Pac. 557; Goins v. State, 9 Okla. Cr. 35, 130 Pac. 513; Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185.

Where a defendant assigns misconduct of the jury as error by reason of separation or otherwise, he should not rely on the mere naked affidavit of the defendant, but should support his contention by such showing as will enable the trial court as well as this court to determine what occurred. He has the processes of the court to bring in witnesses, including the jury-that tried the case. In the matter before us only a single juror testified and that by deposition. We do not presume injury by reason of some departure from tbe ordinary procedure in a criminal case, unless the departure is of such a character as to constitute fundamental error or is of such a nature or at such a time that injury will be presumed. Sections 2822 and 2943, Comp. Stat. 1921; Ray v. State, 35 Okla. Cr. 328, 250 Pac. 438.

Upon a consideration of the entire record, we are satisfied that defendant had a fair trial.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JIM SKINNER v. STATE.
    No. A-6610.
    Opinion Filed September 7, 1929.
    (280 Pac. 851.)
    Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of a second and subsequent violation of the prohibitory liquor law and was sentenced to pay a fine of $100 and to serve two years in the state penitentiary.

The record discloses that prior to the time charged, defendant had been convicted on two occasions in the county court of Kay county of selling whisky, and had paid a fine and served a term in the county jail. At the time charged, certain officers procured a search warrant for the search of lots 15 and 16, block 23, in the town of Kaw City. With this warrant they went to the place, which was a hotel, met defendant on the front porch, and proceeded to search him, and found on his person two half pints and one pint of whisky. On searching the premises nothing else was found. The officers had no search warrant for defendant’s person and did not arrest him until after the search of his person. Section 30, art. 2, of the state Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

The search of the person of an individual without a warrant, and not as an incident to a lawful arrest, violates in the most aggravated form the terms of the Constitution above quoted. Sections 30, 45, and 47, Cornelius on Search and Seizure, and authorities cited. It is fundamental that a citizen may not be stopped on mere suspicion and searched by force in order to procure evidence against him. Evidence procured in this manner is not admissible.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    Ex parte MORRIS M. ARMS.
    No. A-7350.
    Opinion Filed September 11, 1929.
    (280 Pac. 320.)
    T. J. Leahy, for petitioner.
    Edwin Dabney, Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding by habeas corpus, brought by petitioner for a reduction of bail. It appears that petitioner was convicted in the district court of Tulsa county of manslaughter in the first degree, and his punishment assessed at 25 years in the state penitentiary, and his bail fixed at $25,000, pending his appeal to this court; that petitioner has been unable to give such bail and is confined in the county jail of Tulsa county. Upon an examination of the record, this court is of the opinion that the bail fixed is not excessive, and that petitioner is not entitled to a reduction of bail.


text:
    ARTHUR GEORGE v. STATE.
    No. A-6719.
    Opinion Filed September 14, 1929.
    (280 Pac. 1111.)

      A. Burleson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Toby Morris, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against by the county attorney, charged with wife abandonment, was tried and convicted, and sentenced to imprisonment in the state penitentiary for a period of two' years. Motion for new trial was filed, considered, and overruled, exceptions saved, and defendant has appealed to this court.

The testimony in this case on behalf of the state, in substance, shows that on or about the 7th day of April, 1925, the defendant was married to Mary Blake and immediately thereafter left her without providing for her, and has continued to remain away from her ever since, up to the time of the trial of this case; that prior to' the time the marriage took place the defendant had been arrested for seduction; and that upon his marrying Mary Blake he was released from custody.

The defendant attempted to show by his testimony that his wife, Mary George, refused to go with him, and that he tried to get her to go to certain places to make their home. There is conflict in the testimony, but that conflict was a question for the jury to decide under proper instructions of the court, and this court has repeatedly held that where there is any competent testimony, though conflicting, to sustain the verdict of the jury, this court will not disturb the same.

The first error assigned by the defendant is that the court erred in overruling his plea of former jeopardy. An examination of the record shows that the defendant was put on trial in the district court of Cotton county, on a charge of wife abandonment, and that no indictment or information stating sufficient facts to charge a crime was filed. The court in that case was without jurisdiction, and the action of the court in directing the jury to return a verdict of not guilty was not a bar to a subsequent prosecution under the statute when a proper information was filed.

We have carefully read the record, and we find the evidence sufficient to sustain the verdict; that the court properly instructed the jury as to the law applicable to the testimony in this case.

There are other errors assigned hy the defendant, but they are not of sufficient merit to justify this court in reversing the case.

Finding no error prejudicial to the rights of the de-' fendant, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.