text:
    STATE v. MATHEW TENNISON et al.
    No. A-6261.
    Opinion Filed October 5, 1929.
    (281 Pac. 313.)

      Edwin Dabney, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for the State.
    M. D. Hartsell, for defendants.
   CHAPPELL, J.

Mathew Tennison and Jim Tenni-son were charged with a violation of the prohibitory liquor law of the state of Oklahoma. It appears from the record that the officers with a search warrant found a still in one place, and at about the same time found 19 gallons of whisky in two other and separate places. The county attorney charged the defendants in the county court of Muskogee county in criminal cause No. 3897, with the possession of a whisky still; and in criminal cause No. 3898, charged the defendants with unlawful possession of intoxicating liquor in the amount of 19 gallons of whisky. Á trial was had in cause No. 3897, and the defendant, Mathew Tennison, was convicted upon the charge of having possession of a still. The defendants, Mathew< Tennison and Jim Tennison, filed a plea of former jeopardy in cause No. 3898, wherein they were charged with the possession of 19 gallons of whisky, which plea of former jeopardy and conviction was sustained by the county court, and whereupon the state reserved the question of former conviction and former jeopardy, and appealed to this court for an adjudication thereon.

The issues involved in this case were settled in the casé of Harmon v. State, 43 Okla. Cr. 251, 278 Pac. 354. In the body of the opinion this court said:

“The first error complained of by the defendant is the overruling by the trial court of his plea in jeopardy. The deputy sheriff with the search warrant found the whisky, which the defendant is charged with having possession of, between defendant’s house and the still, and, going further on out into the field, found the still. Two charges were filed against the defendant, one charging him with the possession of the still. He was tried and acquitted on that charge. The other charge filed against the defendant was the possession of the gallon of whisky, and the question now presented to the court is, Was the acquittal of the defendant on the charge of having possession of the still a bar to his prosecution in the case at bar? Cyc. states the rule to be: ‘That the former conviction and acquittal must have been upon the prosecution of the identical act or crime but the two charges need not be precisely the same in point of degree; it is enough if an acquittal of the one shows that the defendant could not have been guilty of the other.’ 12 Cyc. 280. •
“In the case of Morris v. Territory, 1 Okla. Cr. 618, 99 Pac. 760 [101 Pac. 111], this court said: ‘If a plea of former acquittal or former jeopardy shows upon its face a different offense from that for which the defendant is then on trial, or if it is otherwise fatally defective, it should not be submitted to the jury, but should be stricken from the record of the court.’
“In the case of Harris v. State, 17 Okla. Cr. 69, 175 Pac. 627, this court said: ‘The constitutional provision against a second jeopardy is merely declaratory of the ancient principle of the common law. In application it is limited only to a second prosecution for the identical act and crime, both in law and fact, for which the first prosecution was instituted. * * * The burden is upon the defendant to show that his plea of former acquittal and former jeopardy is well founded, both in law and fact.’
“The fact that the officer seized the liquor and the still under the same search warrant and during the same raid is not the controlling factor in the question of former jeopardy. The question is, Was the possession of the still and the liquor seized the same criminal act, transaction, or omission? The evidence required to convict for possession of liquor with intent to sell the same in the case at bar was different from that required to' convict for possession of the still. In the case of the still, it was only necessary to show that the defendant was in possession of a still capable of being used for the manufacture of liquor. In the case at bar, it was necessary for the state to prove the possession of the liquor; the quantity being prima facie evidence of the intent of the defendant to barter, give away, or sell the same. The defendant being charged in the two cases under different statutes and with the commission of different offenses, and the proof in one case not being sufficient to secure a conviction in the other case, and the crimes not being one, necessarily included in the other, the conviction or acquittal in the charge of possession of the still would not be a bar for the prosecution of the defendant for possession in the case at bar. The plea of former jeopardy was therefore properly overruled.”

In the case at bar it could.not be said that the proof necessary to support a conviction for unlawful possession of a still would be competent to establish a case of unlawful possession of intoxicating liquor. The gist of the offense of unlawful possession of a still is the possession of the still itself. It would only be necessary for the state to establish beyond a reasonable doubt that the defendant was in possession of the still to secure a conviction on that charge. The gist of the offense in the case at bar is the possession of liquor for the purpose of selling the same. In this case it would not only be necessary for the state to prove possession by the defendants, but the state would have to establish the intent of the defendants. The 19 gallons of liquor found would make a prima facie case, but the presumption created by the possession isi one that may be overcome by proof. So it can readily be seen that the proof necessary to establish the crime of possession of a still would not be the same nor would it be sufficient to secure a conviction for the possession of liquor. It was error for the court to sustain the plea of former conviction and former jeopardy.

The cause is therefore reversed and remanded, with directions to the trial court to proceed with the trial of the case according to law.

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


source: Caselaw Access Project

author: DAVENPOET, J.

license: Public Domain

text:
    J. L. PIERSON v. STATE.
    No. A-6944.
    Opinion Filed October 5, 1929.
    (281 Pac. 315.)

      Moman Pruiett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, hereinafter called the defendant, was by information charged jointly with Eay Murphy with the crime of robbery with firearms, and was sentenced to imprisonment in the penitentiary for 50 years, from which judgment and sentence the defendant has appealed.

The testimony on behalf of the state is sufficient to show the guilt of the defendant. The defendant was tried separately; his codefendant, Eay Murphy, having entered his plea of guilty and was sentenced to imprisonment in the penitentiary for a term of five years. The jury found the defendant guilty without fixing his punishment, and the court sentenced the defendant to imprisonment in the penitentiary for a term of fifty years.

The defendant assigns several errors alleged to have been committed by the trial court, but has not filed a brief in support of the same. The defendant filed a motion ashing for a modification of the judgment, and states that his codefendant was equally guilty in the commission of the robbery, and that his codefendant was sentenced to five years in the penitentiary; that the punishment inflicted upon him is cruel and unusual, and amounts to a life sentence, and prays the court for a modification of the said sentence.

An examination of the record shows that this defendant, together with his codefendant, held up Howard Turner on the highway and took his watch and a nickel in money from him; that Eay Murphy, the codefendant, held the gun on Turner while this defendant took his watch and the nickel in money from the defendant. After a thorough study of the record and a careful reading of the testimony in the case, it appears to the court that the sentence imposed upon the defendant in this case is excessive, and that the ends of justice would be met by a modification of the judgment and sentence from fifty years to twenty-five years, and the judgment as so modified is affirmed.

EDWARDS, P. J., concurs.

CHAPPELL, J., concurs in affirmance of the case, but dissents from the reduction of sentence.


author: DAVENPORT, J.

text:
    W. H. CRITTENDON v. STATE.
    No. A-6794.
    Opinion Filed October 5, 1929.
    (281 Pac. 315.)
    Orban C. Patterson, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   DAVENPORT, J.

Tbe plaintiff in error, hereinafter called the defendant, was by information charged with the crime of attempt to' kill, was tried and convicted and sentenced to- imprisonment in the penitentiary for one year and one day. Motion for new trial was filed and overruled, and defendant duly excepted and has appealed to this court.

In addition to the various errors alleged to have occurred during the trial, the counsel for defendant pleads • that the judgment be reversed and a new trial granted, for the reason that the defendant has been deprived of his constitutional rights to have his trial reviewed in this court upon a case-made by reason of the fact that the testimony in chief by the court reporter has been lost or destroyed and cannot be found and transcribed by the court reporter; the court reporter testifying that she had made due diligence and effort to find her shorthand notes where she reported the case, and that the notebooks in which she reported the testimony and proceedings were taken from her desk and she has been unable to find them; that the only testimony she had and could transcribe from her notes was a part of the testimony in rebuttal.

The defendant alleges that it is no fault of his that the shorthand notes of his trial disappeared, and, in order for him to properly prepare and present the question raised in his appeal, a transcript of the evidence and duly certified case-made are necessary therefor. It also appears that a failure of the defendant to procure this transcript of evidence has been without fault or laches on his part. Furthermore, there is no reasonable probability that he will ever be able to procure a transcript of the evidence in this case.

Under the provisions of our. statute a.n appeal may be taken either by certified transcript of the record or by case-made. However, an appeal by transcript does not bring up for review the questions that arose upon exceptions taken to the rulings of the court upon the admission or exclusion of the evidence.

In order that the defendant may present the questions arising during the trial proper it is necessary to have before this court a duly certified case-made.

The court reporter was called as a witness in support of the motion for a new trial on the ground that her shorthand notes had been misplaced, lost, or destroyed, and testified she had been unable to find the shorthand notes containing the testimony in chief of the trial of the case. In the taking of the testimony an effort was made to show that some one friendly to the defendant, or one of the defendant’s attorneys, was responsible for the disappearance of the' shorthand notes. The testimony is insufficient to show that the defendant had anything to do with the shorthand notes being lost or destroyed, or that he had any knowledge that they had been lost or destroyed. When a court reporter is unable to furnish a transcript of the evidence, by reason of the shorthand notes being lost, the case should be reversed and remanded. Elliott v. State, 5 Okla. Cr. 63, 113 Pac. 213; Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590; Butts v. Anderson, 19 Okla. Cr. 369, 91 Pac. 906; Gibbs v. State, 23 Okla. Cr. 247, 214 Pac. 745.

We think it is apparent from the record presented in this case that the defendant has been deprived of his right without fault on his part to have his case reviewed on tbe errors assigned. In order that the defendant may not be deprived of his statutory right, the ease is reversed and remanded to the district court of Oklahoma county, with directions to grant him a new trial.

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


author: EDWARDS, P. J.

text:
    VIRGIL HARRIS et al. v. OGDEN, District Judge.
    No. A-7568.
    Opinion Filed October 5, 1929.
    (281 Pac. 316.)
    John L. Hodge, H. H. Brown, Mac Q. Williamson and Stephen A. George, for petitioners.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in mandamus in which petitioners pray an order requiring John B. Ogden, judge of the district court of Carter county, to dismiss an indictment pending against them in that county charging the crime of embezzlement, for the reason that the said cause has not been brought to trial within two terms from the time indictment was returned.

Section 2913, Comp. Stat. 1921, is as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The facts disclosed in the petition, exhibits, and stipulation are about as follows: Petitioners were indicted for embezzlement at the September, 1928, term. They were enlarged upon bond, and have continued at liberty since. The case was set for trial in October, being the September, 1928, term of court. At that time the county attorney had a serious illness in his family, and he applied for a continuance; both parties advised the court there was no objection to a continuance for the term. In the district of which Carter county is a part there are two district judges, and there has been a long-standing rule that all odd-numbered cases should be set in division No. 1, and all even-numbered cases in division No. 2. The indictment against petitioners bore an odd number, and was set in division No. 1, of which respondent was judge. It is shown that causes are transferred from one division to the other ivhere application is made and it appears proper that the transfer be made. After the continuance of the case in October it properly stood for trial in division No. 1 in January following. During that term of court- the judge of said division was for a long time seriously ill and unable to attend to the duties of his office, and, no application to transfer the case from division No. 1 to division No. 2 being made, the case was not tried. Defendants made no demand for a. trial, which was brought to the attention of the court. The question then is, Under this state of the record are petitioners entitled to have the prosecution against them dismissed?

There appears to be a conflict in some of the opinions rendered by this court under section 2913, supra. In some of the opinions where two terms have elapsed without consent of defendant it is said the burden is on the state to show that the continuance was for a lawful cause. Smith v. State, 27 Okla. Cr. 294, 227 Pac. 901; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 Pac. 485; Bayne v. State, 42 Okla. Cr. 81, 279 Pac. 694.

Other cases hold that, when a defendant is on bail, he must demand a trial or resist the continuance of the case. State ex rel. v. Bayless, District Judge, 38 Okla. Cr. 129, 259 Pac. 606, and authorities cited; Davis v. State, 38 Okla. Cr. 129, 279 Pac. 976.

This seeming conflict appears to have arisen in cases where no counter showing was made to a defendant’s motion to dismiss under this statute and in cases where a counter showing was made.

In the first line of authorities where an accused has made a sufficient showing and no counter showing is made, and the allegations of the defendant thereby tacitly admitted, the holding is In substance that the state must make some explanation showing good cause for its delay in bringing the accused to trial. These cases correctly state the law, if the showing made affirmatively discloses that the neglect is on the part of the state and that defendant has demanded trial and resisted a continuance. The other line, as in the Davis Case, supra, hold in substance that the burden is on the defendant in the first instance to show that the ladhes were on the part of the state, and when on bail that be bas demanded a trial and resisted a continuance. Tbe conflict is more apparent than real, but, conceding a conflict, the Davis Cases undoubtedly state tbe correct rule. Section 2913, Comp. Stat. 1921. supra, is intended to amplify and make effective tbe provisions of article 2, § 20, of tbe state Constitution, which guarantees an accused a speedy trial. This constitutional and statutory right, however, may be waived, and is waived, when a defendant is on bail and agrees or acquiesces in tbe continuance of tbe prosecution against him. If be desires to avail himself of this constitutional and statutory right, be must demand a trial and resist a continuance of the case. When he has never demanded or been refused a trial, he is not entitled to a discharge under the constitutional and statutory provisions above referred to. In the instant cáse, the defendants hot having made an affirmative showing as required, the presumption is that the case against them was continued for a lawful cause. The motion to dismiss the prosecution against defendants was properly refused, and, for the reasons stated, the writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    CHARLEY STEWART v. STATE.
    No. A-6803.
    Opinion Filed October 5, 1929.
    (281 Pac. 318.)

      J. O. Whiteside, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance, and his punishment fixed by the jury at a fine of $500 and confinement in the county jail for a period of six months.

It appears from the record in the case that a search warrant was issued on the 6th day of November, 1926, and that the affidavit upon which the search warrant was procured was made on the 7th day of November, 1926. Since the affidavit was not made until the day after the search warrant was issued, the search warrant was void, and any evidence obtained under such search warrant was inadmissible. The evidence of the state was that no liquor was found on the premises of the defendant when the search was made. The officers say that they saw the defendant out in the field, some distance from the house, and went out to meet him; that the defendant did not see the officers until they were close to him, and when they accosted him he broke a quart bottle of whisky, which he was carrying in his hand, upon a rock. The officers obtained a fragment of the bottle (the neck) and enough of the whisky to be able to tell that it was whisky. They thereupon arrested the defendant and took him with them a short distance to another farm, and just across the fence they found a five-gallon jug and a five-gallon bottle of whisky. The officers testified that the ground! was soft, and they followed the fresh tracks of the defendant from the place where he broke the bottle of whisky back to the jugs across the fence on the other farm, and that the tracks leading to the jugs were the tracks of the defendant, and that there they found a funnel capable of being used to pour the whisky from the jug into bottles, and also found a funnel on the person of the defendant when they searched him.

The officers testified that the place of the defendant was a place of public resort; that people congregated there for the purpose of drinking, and also that they had seized a still there prior to this raid; and that a Mrs. McAfee bought whisky on this place previous to this raid. Some neighbors testified that the place was a place of public resort, and that people congregated there, and came away from the premises drunk. The owner of the farm upon which defendant lived testified that, since the defendant had been in possession of the farm, people congregated there to drink, and that the place had the reputation of being a place where liquor was sold, and where people congregated for the purpose of drinking liquor. The liquor seized not being found on the premises of defendant, he cannot complain that the search was unreasonable, because the search warrant was void. The question of the ownership and possession of the liquor seized was one of fact, to be determined by the jury from all the evidence introduced in the case, and was a circumstance to be considered by the jury in determining the question of whether the defendant was maintaining a public nuisance, where people congregated, and where intoxicating liquor was sold.

The motion to exclude this evidence was properly overruled. There being sufficient evidence in the record to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    E. A. DUNN et al. v. STATE.
    No. A-7188.
    Opinion Filed October 5, 1929.
    (281 Pac. 318.)
    J. W. Osmond, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Caddo county, and defendant Dunn was sentenced to pay a fine of $500 and to serve 6 months in the county jail, and defendant Slagle was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was entered in August, 1928, and the appeal was lodged in this court in October, 1928. A motion to dismiss the appeal supported by affidavits has been filed setting out that defendant Dunn was in March, 1929, convicted of a felony in the state of Texas, and was sentenced to a term of 5 years in that state, and is now, incarcerated at the state penitentiary at Huntsville, Tex., and further setting out that defendant Slagle has departed from the state of Oklahoma and for some. 6 months has resided in or around the town of Shamrock, Texas.

Where a defendant has been convicted and perfects his appeal to this court, and thereafter leaves the state, and is where he cannot be made to respond to any judgment or order which may be rendered, this court will dismiss his appeal.

The appeal is therefore dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    WILL BRUNER v. STATE.
    No. A-7023.
    Opinion Filed October 5, 1929.
    (281 Pac. 319.)

      Anglin & Stevenson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted for having in his possession a quantity of intoxicating liquor, to wit, choc-taw beer, with the unlawful intent and purpose to sell, give away, and otherwise furnish same to others, and was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $50.

Motion for new trial was filed, considered, and overruled. The case was appealed to this court.

The testimony of the state, in substance, tended to* show that the defendant in error had in his possession choctaw beer. No analysis of the beer was made. Two witnesses, who were deputy sheriffs, testifying, for the state, stated that they tasted this beer,, and it was intoxicating; one stated that he drank about as much as a wine glass would hold; and the other that he drank a small quantity of it. Both said it was intoxicating, but gave no reason further than their tasting and drinking a small quantity of it.

The state, in order to sustain its allegation, offered in evidence the affidavit for search warrant and the search warrant, which, omitting the captions, are as follows:

“I, G. A. Phillips, having first been duly sworn, upon oath, depose and say: That I have reason for believing, and do believe, that the following described personal property, to wit: Intoxicating liquors, are kept by the above named Willie Bruner in violation of the prohibitory laws of the state of Oklahoma.
“That said intoxicating liquors are kept by the above named Willie Bruner upon his premises, in his house, barn or other out-buildings, or is secreted “upon or about his place upon the following described lands in Hughes county, Oklahoma, to wit: N. W. quarter of sec. 10, township 7, range 10.
“The reasons for my belief as aforesaid, are: This affiant at different times in the day time and in the night time had seen people at and about said premises going to and from said premises and congregated about said premises and said premises to the personal knowledge of this affiant is a place of public resort where intoxicating liquors are kept, stored and handled for sale in violation of the prohibition law; this affiant knows the general reputation of said premises as being a place of public resort where intoxicating liquors are kept, stored, handled and sold and that reputation is bad and affiant knows the general reputation of the said Willie Bruner in the community for being a person who keeps for sale and sells intoxicating liquor in violation of law and that reputation is bad.
“Wherefore, affiant asks that a search warrant issue and that said property, to wit, intoxicating liquor, and said Willie Bruner be brought before the court and dealt with according to law.”
“The State of Oklahoma.
“To any sheriff, constable, marshal, or policeman in this state — Greetings:
“Proof of affidavit having this day been made before me by G. A. Phillips that Will Bruner, the above named defendant, is in unlawful possession of intoxicating liquors, which he has and keeps upon his premises in his house, barn or other out buildings, or which is secreted upon or about his place upon the following lands
in Hughes county, to wit: N. W. quarter sec. 10, township 7, range 10.
“You are therefore in the name and by the authority of the state of Oklahoma, hereby commanded that taking all necessary assistance, you immediately, in the day time make diligent search of the above described premises, and if any or all of the above described property be found upon said premises or upon the person of the said that you take the same in your custody, and forthwith arrest the said Will Bruner and bring him together with said property, forthwith, before me at my office in Wetumka, in said county, then and there to be dealt with according to law.”

The affidavit for the search warrant and the search warrant were admitted over the objections of the defendant.

At the close of the testimony, the defendant moved to strike from the record all the testimony of the state, for the reason that it was obtained by an unlawful search and seizure, which motion was overruled, and defendant duly excepted.

The defendant, as grounds for reversing this judgment, has assigned several errors: First. The court erred in overruling motion of plaintiff in error for new trial. Fifth. Error of the court in admitting incompetent, irrelevant, and immaterial testimony over the objections of the defendant.

These two assignments will be considered together, as they relate to the admission of incompetent, irrelevant, and immaterial testimony.

The defendant urges that the court erred in overruling his objections to the admission of the affidavit for the search warrant and the search warrant, for the reason that the affidavit for the search warrant and search warrant contained the following allegations:

“Affiant knows the general reputation of said premises as being a place of public resort, where intoxicating liquors are kept, stored, handled and sold, and that reputation is bad and affiant knows the general reputation of the said Willie Bruner in the community for being a person who keeps for sale and sells intoxicating liquor in violation of law and that reputation, is bad.”

It is urged by the defendant that these allegations in the complaint, having been introduced by the state for consideration of the jury, were as damaging as if the witness had been placed on the stand and testified to the same facts.

The court erred in permitting the state to introduce the affidavit for search warrant and search warrant containing the allegations, for the reason that it put in issue the reputation of the defendant’s home and premises and !the reputation of the defendant, without a proper predicate being laid for the introduction of such testimony.

It is further urged by the defendant that, before the general reputation of his home can be legally admitted in evidence, it must be shown that the place itself was a place of public resort, not merely that it bore such a reputation. The state failed to offer any evidence showing that parties resorted to this defendant’s place or home or that the defendant had in any Avay whatever been connected with the buying or selling of intoxicating liquors at his place. We think the objection of the defendant to the introduction of application for the search warrant, and the search Avarrant, was well taken, and the court should have sustained the same. It was an error for the court to admit the application for the search warrant, and the search warrant as to the reputation of defendant’s place and the defendant without a proper predicate being laid by the state, showing that the defendant’s place was a place of public resort. Lumpkins v. State, 36 Okla Cr. 256, 253 Pac. 909; Leigh v. State, 41 Okla. Cr. 332, 273 Pac. 280; Phillips v. State, 43 Okla. Cr. 174, 277 Pac. 669; Welch et al. v. State, 35 Okla Cr. 2, 246 Pac. 1113; Beatty v. State, 34 Okla. Cr. 418, 246 Pac. 1103.

There are other errors assigned, but, in the view we take of this record, it is not necessary to consider them. For the errors herein mentioned, the case is reversed and remanded.

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


text:
    STATE v. CHARLEY WILLIAMS.
    No. A-6806.
    Opinion Filed October 5, 1929.
    (281 Pac. 321.)

      Frank L. Wells, Co. A tty., for the State.
    Tom E. Willis and C. K. Cary, for defendant in error.
   EDWARDS, P. J.

This is an appeal by the state upon a question reserved by the state from a judgment of the county court of Major county, sustaining a demurrer to an information.

The defendant was charged by information with having the possession of a still worm and still, under the provisions of section 2, c. 42, Session Laws Oklahoma 1923-24, which in part reads as follows:

“* * * It shall be unlawful for any person to keep, or have in his possession * * * upon any premises under the ownership or control of such first party, any still worm or still, without that he first register the same Avith a proper United States officer,” etc.

The charging part of the information is:

“* * * That the said Charley Williams, * * * in the county of Major and state of Oklahoma, on or about the first day of June, 1927, did then and there willfully and unlawfully keep and have in his possession a still worm and still without first registering the said still Avorm and still with a proper United States officer,” etc.

The demurrer to this information is that it does not state a public offense, and is so vague, indefinite, and uncertain that it is impossible to ascertain what offense is attempted to be charged; and does not inform the defendant in clear and concise language the crime sought to be charged. The offense is statutory, and this court has frequently held that, Avhere the statute states all the elements of the crime, it is sufficient to charge the crime in the language of the statute, or in words of similar import. Section 2562, Comp. Stat. 1921; State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442; Robinson v. State, 8 Okla. Cr. 667, 130 Pac. 121, 122; Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132; Santino v. State, 29 Okla. Cr. 149, 232 Pac. 859; Saucerman v. State, 31 Okla. Cr. 272, 238 Pac. 228.

Defendant further argues that the information is duplicitous in charging defendant with having the possession of a still worm and a still. Where a statute enumerates several acts or things disjunctively which separately or together shall constitute an offense, the different acts or things may be charged in an information conjunc-tively. Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355. It follows that the court erred in sustaining the demurrer.

The case is reversed and remanded, with instructions to the trial court to set aside its order sustaining the demurrer, and for further proceedings in conformity to this opinion.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    O. A. COOK v. STATE.
    No. A-6804.
    Opinion Filed October 5, 1929.
    (281 Pac. 322.)
    L. E. Mifflin, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of McCurtain county on a charge of unlawful transportation of whisky, and his punishment fixed at a fine of $100 and to be confined in the county jail for a period of 60 days.

The plaintiff in error was sentenced on the 18th day of July, 1927. Upon this date the plaintiff in error was given 60 days to make and serve case-made. Section 2808, O. O. S. 1921, provides that in misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered, unless for good cause shown the court extends the time not exceeding 60 days.

The appeal was filed November 3, 1927. No order appears in the record extending the time to file the appeal in this court. For failure to file the appeal in the time allowed by section 2808, C. O. S. 1921, the appeal will have to be dismissed, and it is so ordered.

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


text:
    J. G. GOLDING v. STATE.
    No A-6769.
    Opinion Filed October 5, 1929.
    (281 Pac. 322.)

      Clark Nichols and Jack Nichols, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

J. G. Golding, plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county of having possession of intoxicating liquor with intent to sell the same, and was sentenced to pay a fine of $500 and to be imprisoned in the county jail for six months. The sheriff, having a search warrant, visited the home of the defendant, and found 3 1-2 gallons of whisky in a bedroom in half-gallon fruit jars. The defendant admitted having possession of this whisky, claiming that he had taken it as part payment on a note due him from a farmer, and denied that he had sold any part of the liquor, or intended to sell the same.

The defendant first contends that the court erred in admitting incompetent and irrelevant evidence to go to the jury over his objections. The defendant on direct examination, admitted that he had possession; of this whis-ky for about 15 days, claiming to have taken it from a farmer as part payment on a note the farmer owed him. The county attorney asked some improper questions, which were objected to and sustained by the court.

The defendant having taken the witness stand and admitted possession of the whisky, and attempted to explain what he intended to do with it, the state, on cross-examination, had a right to inquire if he did not get this whisky some other place, and if he did not intend to dispose of the same in violation of law.

“When a witness voluntarily takes the witness stand in his own behalf, he becomes a witness on cross-examination, subject to all the rules applied to other witnesses.” Queen v. State, 23 Okla. Cr. 147, 212 Pac. 1021; Gilbert v. State, 23 Okla. Cr. 352, 214 Pac. 936; McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256; Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162.

The defendant next complains that the court erred in permitting the state to inquire if the defendant had not pleaded guilty to a crime involving moral turpitude, viz., outraging public decency. In Donahue v. State, 38 Okla. Cr. 87, 259 Pac. 179, this court said:

“Where a defendant testifies in his own behalf, for the purpose of affecting his credibility as a witness, he may be asked on cross-examination, if he has prior thereto. been convicted of any offense.”

The defendant on cross-examination admitted that he had pleaded guilty to a charge, but claimed he did not remember what the charge was. This evidence was properly admitted, for the purpose of affecting the credibility of the witness.

The defendant next complains that the court erred in refusing to give plaintiff in error’s requested instructions Nos. 1 and 2. An examination of the instructions given by the court reveals that the instructions asked for by the defendant were covered by the general instructions of the court. The instructions as a whole fairly state the law of the case, and it was not error for the trial court to refuse to give the instructions requested by the defendant.

The defendant next contends that the court erred in refusing to permit the defendant to cross-examine the sheriff, for the purpose of showing that the affidavit for the search warrant was actually made on information and belief, although it purported to be made from personal knowledge. In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court said:

“Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained.”

Where the facts stated in an affidavit are sufficient to show probable cause, the court should not permit the defendant to inquire into the accuracy or source of af-fiant’s information, nor of the means by which it was obtained; and the defendant should not be permitted to show that the statements in the affidavit were untrue.

The defendant next complains that the court erred in rejecting evidence offered by the defendant. The defendant had testified that he took the whisky as part payment on a note due him from a farmer. Defendant’s counsel then asked him, “Q. Why did he give you the whisky on the note?” The state objected and the court sustained the objection. Defendant’s counsel then asked him: “Q. Was that in part or in full payment of what he owed on the note?” The state objected, and the court sustained the objection. It was entirely immaterial why the farmer sold the defendant the whisky involved in this case. The defendant admitted the ownership and possession of it; the quantity was sufficient to make a prima facie case; it was then incumbent upon the defendant to rebut this prima facie case, but the evidence offered had no tendency to rebut that presumption, and was therefore properly excluded by the court.

The defendant next complains that the county attorney was guilty of misconduct to the prejudice of defendant. In the case of Carr v. State, 43 Okla. Cr. 271, 277 Pac. 1038, this court said:

“In order to have alleged improper remarks reviewed by this court, where the same are not fundamentally erroneous, it is necessary for counsel, not only to object to such remarks, but also to move that they be excluded from consideration by the jury.”

Defendant caused the objectionable remarks of the county attorney to be taken in shorthand and incorporated in the record. The record shows that the defendant objected to the remarks, and that some of his objections were sustained, and the court finally cautioned the county attorney to keep within the record; but it nowhere appears that the defendant moved the court to exclude such remarks from the consideration of the jury.

The county attorney, in his zeal to secure a conviction, did ask the defendant improper questions on cross-examination, and did overstep the bounds of propriety in arguing the case. Since the defendant admitted the possession of the liquor, and since the quantity was sufficient to make a prima facie case, and there was no rebuttal of this presumption, the jury could have done nothing less than find the defendant guilty; but the misconduct of the county attorney may have resulted in fixing the penalty at a fine of $500 and imprisonment in the county jail for six months.

Section 2822, O. O. S. 1921, provides:

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

Since the evidence shows the defendant to be guilty beyond a reasonable doubt, we are affirming the judgment; but, because of the misconduct of the county attorney in the prosecution of the case, the punishment is reduced to a fine of $50 and imprisonment in the county jail for 30 days. As modified, the cause is affirmed.

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


text:
    CHARLES SANDERS et al. v. STATE.
    No. A-6801.
    Opinion Filed October 5, 1929.
    (281 Pac. 595.)
    W. R. Withington, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were charged with the possession of intoxicating liquor, with the unlawful, willful, and wrongful intent to barter, sell, give away,, and otherwise furnish to others; were tried and convicted, and each sentenced to pay a fine of $250, and to be confined in the county jail for a period of three months; from the judgment the defendants perfected the record, and: have appealed to this court.

Erling Barker, called as a witness on behalf of the state, testified in substance as follows: That he was a federal prohibition officer, had. been working since the 13th day of December, 1926, and was such officer on the 19th day of February, 1927.” I knew the defendants, Farley Wilson and Charles Sanders, saw them on the 19th day of February, 1927, at a little root beer stand at 119A South Robinson street, in Oklahoma City, Oklahoma. Orville Snooks and I was driving by their place and saw Farley Wilson come from their place of business to this place in the doorway just south of the beer joint. I saw Charles Sanders go from the beer stand to the abandoned stairway just south of it in the brick building; when he came out he was carrying something under his coat; I don’t remember just the position it was in; it was in a concealed manner; he was in his shirt sleeves ; each time Farley Wilson was making trips either toward or from the stairway people were in the place of business.”

On cross-examination the witness stated they had a search warrant for 119A South Robinson street, and also had a search warrant for a stairway which was near this place of business. Witness further stated they found whisky in the stairway adjoining the place of business where the defendants were operating, but he never saw any of the whisky in possession of these defendants; they searched the place of business of defendants, and did not find any whisky; when they went to the place of business of the defendant, Sanders was out working on a car about a half block from the place of business, and that he started to leave; while they searched the place of business, Sanders was out in front; Farley Wilson was at 119A South Robinson street, and that it was a soda pop joint; when they arrested Sanders and Wilson, they had no warrant for their arrest, but, when they went to search their place of business they searched the person of both of these defendants; they had a search warrant for their place of business, and also a search warrant for the stairway adjoining their place of business; the search war-, rants were introduced in evidence, but did not command the officers to search the persons of these defendants, and, on one of them they found a half pint, and on the other about half of a half pint of whisky. All of this testimony was introduced over the objection of the defendants.

Orville Snooks testified in substance the same as Erling Barker, and the same objections to the testimony of Snooks was interposed by the defendants as were interposed to the testimony of Erling Barker, to the questions of the general reputation of the place of business of the defendants, and on searching of the persons of the defendants without a warrant of arrest, and without a search warrant commanding them to search the person^ of the defendants. All the witnesses admit no whisky was found at 119A South Robinson street, but that the whisky they allege to have found under the terms of the search warrant was in a stairway near the place of business of the defendants, and they claim they saw the defendants going back and forth to this stairway, and it looked like they were carrying something concealed on their person. The whisky claimed to have been found in the stairway by the officers and the whisky taken from the persons of the defendants was introduced over the objections of the defendants.

At the close of the evidence, the defendants Farley Wilson and. Charles Sanders “moved the court to strike out all the evidence regarding the search of the person of said defendants and what was found on them at the time they were arrested, for the reason that it was incompetent, irrelevant and immaterial, and was an illegal search and seizure, the officers not having any search warrant to search the defendants or either of them, and the search having taken place before the defendants were placed under arrest. The search being on suspicion only and not a legal search of the persons of the defendants or either of them,” which motion was by the court overruled, and the defendants excepted. The defendants then moved the court to advise the jury not to consider the evidence with reference to the search of the persons of the defendants or either of them, for the reason that the same was an illegal search, which motion was overruled and the defendants excepted. The defendants then moved the court to advise the jury to acquit the defendants, for the reason that the evidence is not sufficient to sustain the charge. set out in the information, or tending to show the commission of any offense by the defendants, or either of them. This motion does not seem to have been ruled on by the court.

Eight errors alleged to have been committed in the trial of their case have been assigned by the defendants.

“1. The court erred in overruling the plaintiffs in error’s motion for a new trial, to which the plaintiffs in error duly excepted.
“2. The verdict of the jury was contrary to law.
“3. The verdict of the jury was contrary to and not supported by the evidence.
“4. Error of the court in refusing to sustain the plaintiifs in error’s motion to advise the jury to acquit them.
“5. Error of the court in holding that the search of the person of the plaintiffs in error, Charles Sanders, was legal, and in failing to strike said evidence on motion of the plaintiffs in error.
“6. Error of the court in admitting certain incompetent and immaterial evidence, over plaintiffs in error’s objections and exceptions.”

The six errors assigned by the defendants and herein set out all relate to the same question, and that is, the error of the court in admitting the evidence, over the objections of the defendants, to the search of their persons.

The defendants insist that the testimony with reference to the searching of their persons and what was found thereon was improperly admitted, and that upon their objection it should have been excluded from the jury, for the reason that the officers did not contend they saw the defendants committing- an offense, but that their action in securing the search warrant and searching the defendants was based upon a suspicion that the defendants were in possession of whisky and were selling the same. They admit that up until the time they secured the search warrant and searched the place of business of the defendants they had not seen these defendants, or either of them, in possession of any whisky; their only contention being their actions were suspicious and they believed they were handling whisky.

In Graham v. State, 31 Okla. Cr. 125, 237 Pac. 462, 463, in the second and fifth paragraphs of the syllabus, the court said:

“2. Where the officer does not know of the act constituting the offense, it is not committed in his ‘presence’.”
“5. No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, and Sowards v. State, 37 Okla. Cr. 431, 259 Pac. 157, the court cited with approval the case of Graham v. State, supra.

The defendants contend that the search of their persons by the officers was illegal, for the reason that the officers had not seen them commit an offense, nor did they have a warrant to search their persons or to arrest them; and that the search of their persons and their arrest was illegally made, and the admission of the testimony of what was found upon their persons was prejudicial to their rights; that their objection to the admission of the testimony as to what was found on their persons should have been sustained by the court. The search of defendants’ persons without a search warrant and without a warrant of arrest, in the absence of defendants committing an offense in the presence of the officers, was illegal and was prejudicial to the rights of these defendants.

In Skinner v. State, 44 Okla. Cr. 271, 280 Pac. 851, this court said:

“At the time charged, certain officers procured a search warrant for the search of lots 15 and 16, block 28, 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 seizure 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 court further said:

“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.”

The testimony admitted over the objection of the defendants of the search of their persons was improper. No one can tell what the verdict of the jury Avould have been had this improper testimony been excluded. The court erred in overruling the objections of the defendants to this testimony.

For the reasons stated, the judgment is reversed.

EPWABDS, P. J., and CHAPPELL, J., concur.


text:
    ADAM WHEELER v. STATE.
    No. A-6875.
    Opinion Filed October 10, 1929.
    (281 Pac. 599.)
    E. Y. Rakestraw, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state is that Sam Standerfer, deputy sheriff, had a warrant for the arrest of one W. P. Moore; that the officers saw W. P. Moore and the defendant, Adam Wheeler, in a car driving in the streets of Snyder; that he called Tom Bryant to assist him in arresting Moore, and they pursued Moore and Wheeler for about three blocks, where they overtook them; that the officers commanded Wheeler, who was driving the car, to halt, but, instead of doing that, he reached down and pushed something over to Moore, and speeded up his. car; that the officers followed after them, and saw Moore throAV a half-gallon jar out of the car; that they pursued Moore and Wheeler about two miles, where they overtook them and arrested them; that there was a wet place in the bottom of the car that smelled of whisky. After arresting the defendants, the officers went back to the place where the jar was broken, and found the broken jar with a wet place on the ground and a strong scent of whisky. When arrested, Moore said the whisky belonged to Wheeler. A charge of transporting liquor was filed against both defendant Wheeler and Moore. Wheeler furnished the bond for Moore, and, when Moore’s case was called, he pleaded guilty to the charge and Wheeler furnished most of the money to pay his fine. The defendant was then tried and .found guilty by the jury.

The defendant first contends that the evidence against the defendant was inadmissible because the search and seizure was unlawful. The evidence discloses that the officers had a warrant for Moore’s arrest; that Moore was riding in defendant’s car; that defendant speeded up the car, and thus enabled Moore to have time to throw the jar of whisky out of the car and also enabled him to evade arrest for the time being. The officers having the warrant for the arrest of Moore had a legal right to search the car and the persons of defendant and Moore and the immediate surroundings.

Section 2468, C. O. S. 1921, provides:

“If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.” Yeager v. State, 43 Okla. Cr. 318, 278 Pac. 665.

The motion to suppress the evidence was properly overruled. The defendant contends that there is no evi-deuce to show that defendant Wbeeler knew anything about the whisky being in the car. The fact that defendant fled from the officers, that Moore said in his presence that the whisky belonged to Wheeler, and that Wheeler furnished most of the money to pay the fine of Moore, and furnished his bond, and that Wheeler was intoxicated at the time he was arrested, were all circumstances to be considered by the jury in determining the'guilt or innocence of the defendant. It is true that Wheeler denied that the whisky belonged to him or that he knew it was in the car, but the story he told on cross-examination greatly weakened this denial. The jury were not bound to believe the story of the defendant Moore, and had a right to believe the officers and take into consideration all the circumstances in the case. Having found the defendant guilty, they evidently did not believe his story and did believe the evidence of the state. The motion to suppress the evidence being properly overruled, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    G. WEBER v. STATE.
    No. A-6813.
    Opinion Filed October 10, 1929.
    (281 Pac. 987.)

      L. M. Gensman, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 60 days.

On the 19th day of May, 1927, S. A. Logan, an officer of Comanche county, obtained a search warrant to search the premises of the defendant, which consisted of a filling station and soft drink stand, with some rooms in the back part of the building, occupied as a dwelling by the defendant and his family. On arriving at the filling station, the officers entered, and soon after the defendant came from a room in the back of the filling station with a sack containing some bottles. The officers asked him what was in the sack and he told them beer. They asked what he was going to do with it, and he said he had traded it to some boys sitting in a car in front of the filling station, and was delivering it to them. Thereupon the officers seized the sack, which contained 8 bottles of beer. The officers then pro-eeeded to search the back rooms, and in the dining room they found a tub with 40 bottles of beer on ice. About the same time a young girl ran out of the house with a half gallon jar of whisky, and threw it down by the henhouse. The officers seized this whisky, and on a search of the hen-house found a 12-gallon jar of beer there. They found several empty bottles in the kitchen and 120 empties in a room on the east side of the house.

The defendant first contends that the affidavit for the search warrant was insufficient to authorize the issuance of a warrant. The affidavit does not contain sufficient allegations to authorize the issuance of the search warrant, but the search and seizure can be justified on the ground that an offense was being committed in the presence of the officer's. They had a right to seize the beer and arrest the defendant without a warrant. When the defendant came into the filling station with the 8 bottles of beer and told the officers that it was his beer, and that he was trading it to some boys out in front for some fish, and delivering it to them, this was not hearsay evidence, but was voluntary information furnished by the defendant, which was sufficient to authorize the officers to seize the beer, arrest the defendant, and search the premises. It was not error, therefore, for the court to overrule the motion of the defendant to suppress the evidence.

The search and seizure being legal and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    G. WEBER v. STATE.
    No. A-6814.
    Opinion Filed October 10, 1929.
    (281 Pac. 987.)
    L. M. Gensman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 90 days.

The defendant first contends that the court, over the objection of the defendant, permitted disqualified jurors to serve, and he was thereby deprived of a fair trial. The record is that at the same term of court, and about a week preceding the trial of the case at bar, the defendant had been tried by a jury on a like charge, which returned a verdict finding, him guilty. The case against the defendant previously tried charged that the defendant had possession of intoxicating liquor on the 10th day of May, 1927, while the case at bar charged that the defendant had possession of liquor on the 27th day of August, 1927. Over defendant’s challenge for cause, the jurors Holman, Sham-ley, McCloud, and Gregg, who had served on the jury which tried the defendant and found' him guilty the week previously, and who testified on their voir dire that they had served as such jurors, were permitted to remain on the jury. The court overruled the defendant’s challenge for cause. The defendant used his peremptory challenges to remove three of these jurors from the panel, but one of them remained on the jury, which found the defendant guilty in the case at bar. It is true that the state’s witnesses were not the same, but the circumstances were the same, the place at which the offense was alleged to have been committed was the same, the offense charged of the same kind, namely, unlawful possession of intoxicating liquor, and the evidence required to convict was practically the same. It is evident that under these circumstances a juror who had tried the defendant at the same term of court was disqualified to enter upon the trial of the case at bar.

In the case o Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478, 479, this court had under consideration the question involved in this case in which this court said:

“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.

For the reasons stated, the cause is reversed and remanded, with directions to the trial court to proceed with the trial of the case before a fair and impartial jury.

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


text:
    GEORGE McCUTCHEON v. STATE.
    No. A-6977.
    Opinion Filed October 12, 1929.
    (281 Pac. 594.)
    L. F. Robertson, for plaintiff in error.
    S. B. Laune, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woodward county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $300 and to be imprisoned in the county jail for 90 days.

The evidence of the state is to the effect that John Bouquot, sheriff of Woodward county, accompanied by John Scaggs and Geo. Gilliland, deputy sheriffs, armed with a search warrant went to defendant’s premises for the purpose of searching the same. When the officers drove up, the defendant was out in the road talking to some men in a car, and upon seeing the officers defendant started walking fast toward the house. Bouquot and Gil-liland followed defendant to the house. Just before they arrived at the house defendant hurried to the door and threw something from a washpan out on the ground. As the officers approached the. door they could smell whisky, and afterwards smelled the place where the liquor was thrown, and the ground had a strong odor of whisky. Upon a search of the house, a bottle was found partly full of whisky. Nothing further being found in the house, they then proceeded to search the premises. Nothing was found within the inclosure surrounding the house, but on the same 40 acres on which the defendant’s house stood, and at a point about 200 yards from the house in a wheat field, the officers found a sack with two pints of whisky in it. A little farther on they found a two-gallon jug of whisky. Farther over in the field they followed some tracks, and there found another two-gallon jug of whisky. The search warrant directed the search of the N. % of the N. E. % of section 35, which was the premises occupied by the defendant.

The defendant first complains that the evidence is insufficient to1 support the verdict of the jury. This court has always held that it would not disturb the verdict of the jury where there was any competent evidence tending to support such verdict. It is only where there is no evidence in the record to support! the verdict that a cause .will be reversed. Surrell et al. v. State, 43 Okla. Cr. 94, 277 Pac. 282; Adams v. State, 43 Okla. Cr. 179, 277 Pac. 688; Houston v. State, 43 Okla. Cr. 181, 277 Pac. 687.

The defendant next complains that, since the record contains no affidavit for a search warrant, therefore the search was illegal. The presumption of law is that a sufficient affidavit was filed) before the search warrant was issued. The burden rested on the defendant to show either that no affidavit was made or that the same was insufficient as made. Unless the defendant incorporates the affidavit in his case-made, no question of the sufficiency of such affidavit is presented to this court for its consideration. Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785.

The defendant next complains that the court erred in refusing to give the following instruction offered by the defendant: “You are instructed that the evidence in this case is slight as to whether or not the five gallons of whisky, for the possession of which this defendant is charged, and you are instructed that if you find by the evidence submitted to you that same was in possession of, or belonged to defendant, beyond a reasonable doubt, then, you should convict him. But, if you do' not find by the evidence submitted to you, beyond a reasonable doubt, belonged to, or was in the possession of the defendant, then your verdict should be for acquittal.”

The proposed instruction was erroneous, for the reason that it required the court to comment upon the weight of the evidence, and was properly refused by the court. The instructions given by the court fairly covered the law of the case.

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

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


author: PER CURIAM.

text:
    SUSIE ABBOTT v. STATE.
    No. A-7249.
    Opinion Filed October 12, 1929.
    (281 Pac. 597.)
    Bay & Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $125 and to serve 45 days in the county jail.

The record discloses that at the time charged a constable and a federal prohibition officer procured a search warrant to search a building and premises at 1202 Washington avenue, Lawton View addition, Comanche county, Okla. It is not stated either in the affidavit or the search warrant to what town, if any, the Lawton View addition is a part. The affidavit and warrant in that particular are insufficient under article 2, § 30, of the Constitution.

The testimony is that they discovered eight gallons of beer in a jar or churn; that it was not ready to bottle, but that, if given time, it would make 9 per cent. beer. Upon this point the evidence for the state is:

“Q. Did you taste this beer? A. Yes sir.
“Q. Are you able to state from your experience whether or not this beer was intoxicating? A. Yes, sir. I judge it to be if it had time. This was new beer.
“Q. Was it ready to bottle? A. I don’t think so.
“Q. Do you know what per cent, it was? A. No. sir. But give it time and it would make nine per cent.”

The conviction cannot be upheld on this state of the record.

The case is reversed.


text:
    Ex parte ERNEST PAYTON.
    No. A-7527.
    Opinion Filed October 12, 1929.
    (281 Pac. 597.)
    John J. Carney and Freeling* & Box, for petitioner.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The .petitioner herein was found guilty in the district .court of .Oklahoma county of the crime of robbery with firearms, and sentenced to serve a term of five years in the state penitentiary.

Thereafter the defendant attempted to appeal said cause to the criminal court of appeals, but the appeal was dismissed for the reason same had not been filed within time as provided by law, and upon the dismissal of said appeal this court, on October 6, 1928, rendered an opinion, dismissing' said appeal and remanding the case to the district court, with instructions to enforce the judgment.

Thereafter the petitioner herein filed his application for a writ of habeas corpus upon the ground that the judgment and sentence of the court recited the “15th day of February, 1925,” when in fact it should have been “1926,” and by reason of this clerical error it is the contention of the defendant that this petitioner should either be released or this cause should be remanded to the district court for the purpose of a proper sentence and judgment. The judgment appears to be correct and in perfect keeping with the law except for the fact that there is a mistake as to the time when the judgment was rendered. The judgment itself recites that the judgment was rendered at the time assigned for judgment; that at the time the judgment was rendered the petitioner, Ernest Payton, was personally present in open court and was informed that he had been legally charged with the offense of robbery and had been duly arraigned and had pleaded not guilty and had been legally tried and convicted of said offense in said court; that the prisoner being then informed of the nature of the charge, of his plea, and of the verdict of the jury was asked whether he had any legal cause to show why judgment and sentence should not be pronounced against him, and that he alleged no sufficient cause and that none appeared to the court, and the court rendered judgment, part of which is as follows:

“* * * It is therefore, hereby considered, ordered, adjudged and decreed by the court that the said Ernest Payton be committed to and be imprisoned in the state penitentiary at McAlester, in the state of Oklahoma, and. confined in said penitentiary for the term of five (5) years for said offense of robbery said term of sentence to begin at and from date of delivery and that said defendant pay the costs of this prosecution, taxed at f-, for which judgment is hereby rendered against the said defendant; and thereupon the defendant is by the court notified of his right of appeal. * * *”

The facts as stated by the court in passing judgment show clearly that the defendant had been informed against, tried, found guilty, and assessed a punishment of five years in the state penitentiary. This court has repeatedly held that the court has the power to make any alteration or correction which is necessary to make its record speak the truth. State v. Pollock, 5 Okla. Cr. 28, 113 Pac. 207; Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739; Cornelson v. State, 37 Okla. Cr. 338, 257 Pac. 1109.

In the case of Ex parte Howland, 3 Okla. Cr. 142, 104 Pac. 927, Ann. Cas. 1912A, 840, this court held that, where a defendant is tried, convicted, and sentenced to imprisonment, but by error of the court the judgment is not entire on the record of the clerk, the error may be corrected at any time by an order nunc pro tunc.

In the case of Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739, in paragraph 4 of the syllabus, this court said: “A criminal case is pending, in the sense that a court may correct its records, until the judgment is fully satisfied.”

It appears from the record in the case at bar that the judgment is in conformity with the verdict of the jury and is in everywise legal and correct, except that the judgment recites the wrong year upon which sentence and judgment was pronounced. There does not appear to be any legal reason why the defendant should be discharged, nor that he should be remanded back to the trial court for resentencing.

Since the error complained of is a mere clerical one, the proper practice is for the county attorney to apply to the district court for a nunc pro tunc order directing the court clerk to correct the record to speak the truth as to the date upon which judgment and sentence was pronounced.

For the reasons stated the writ is denied.

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


text:
    R. FERCHAU v. STATE.
    No. A-7102.
    Opinion Filed October 12, 1929.
    (281 Pac. 598.)
    J. W. Burrow, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

Judgment was rendered March 9,1928, and the appeal was.lodged in this court July 9, 1928. An appeal from a conviction for a misdemeanor must he filed in this court in 60 days. Unless the court makes proper orders of extension, the extreme limit in which an appeal-can be filed in this court is 120‘days. Section 2808, Comp. St. 1921. More than 120 days had elapsed from the date of the judgment before the appeal was filed in this court. As a consequence this court acquires no jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    TED ELLIOTT v. STATE.
    No. A-5988.
    Opinion Filed June 29, 1929.
    Rehearing- Denied October 19, 1929.
    (281 Pac. 305.)

      Bridges, Vertrees & Ivy and H. W. Sitton, for plaintiff in error.
    George P. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted in the district court of Jefferson county, on a change of venue from Stephens county, of the crime of rape in the first degree, and his punishment assessed at imprisonment in the penitentiary for a term of 15 years. Upon this appeal from the judgment rendered in pursuance of the verdict, various errors are assigned, among which is the overruling of the appellant’s motion to have the case set for trial September, 1925, term of court. This question was considered by this court in the case of Sledge v. State, 40 Okla. Cr. 421, 269 Pac. 385, and Brown v. State, 42 Okla. Cr. 11, 273 Pac. 1018, companion cases, and decided adversely to the defendant’s contention. FolloAving the cases of Sledge v. State and Brown v. State, supra, we hold that the contention is without merit. It is not contended by the state that Ted Elliott actually committed rape on the prosecuting witness, Ethel Sreywas, but that he aided, abetted, encouraged, and knoAvingly permitted Harry Sledge to commit rape upon the said prosecuting witness.

The defendant filed a demurrer to the information for the reason that the same fails to state facts sufficient to state a cause of action against the defendant, Ted Elliott. Upon examining the information, we hold the information stated sufficient facts to advise the defendant of the charge against him and the court did not err in overruling his demurrer to the same. The defendant also filed a motion to quash the information on the ground that the defendant was not arraigned as provided by law in the county where the alleged crime was committed and where the case was triable, Avhich motion to quash was considered, by the court and overruled, and defendant excepted. We find that the motion to quash was without merit and was properly overruled by the court.

This is" a companion case to the cases of Sledge v. State, and Brown v. State, supra, in which cases the record was more fully set out than we deem necessary to set out in this opinion. The following is a brief statement of the facts which we gather from the evidence, which will answer our- purpose in considering the remaining assignments.

The record discloses that on the evening of February 22, 1925, the prosecutrix and her sister Lillian, 20 years old, were walking along the street in Duncan, when the defendant herein, in company with Harry Sledge and Bill Brown, drew up to the curb in a Ford coupe and invited the girls to ride with them; the girls were acquainted with Ted Elliott, and he introduced the prosecutrix and her sister to the other two defendants, and asked them to take a ride, the girls declined the invitation saying they had some shopping to do, and the defendant, Ted Elliott, then inquired if they could come to the house of the prosecutrix, and the witness Ethel Sreywas told them they would be at home in about 30 minutes. Elliott, Sledge, and Brown shortly thereafter drove up to’ the porch where the prosecutrix and her sister lived, and this defendant went up to the porch and asked the girls to go to Harry Sledge’s home and they would play the victrola and dance; they were going by and get another girl named Billy Morrison. Harry Sledge said he had a girl, he would get her, and they consented to go and the prosecutrix got in the car with them. They drove to Billy Morrison’s and she got in the car with them. They then drove to where Sledge wanted to see a girl by the name of Fern. When they got to her house the young lady could not go. They then, drove around town, and the testimony tends to show that Billy Morrison and the prosecutrix appealed "to the boys to- take them back to their homes, but instead they drove out in the country to what is known as the Sledge home. They parked the car in front of the house, and Harry Sledge went in and lit the lights. Then the defendant went in the house where Sledge was and came back and asked Bill Brown to get out and bring the girls in, and that Billy Morrison got out and went in with Ted Elliott, the defendant. A few minutes later, while standing in the middle of the room, she heard Billy Morrison hollow. Ted Elliott left the room, and she asked Bill Brown to take her home and started out of the room, when Sledge came in, walked around them, and said, “Bill, let me have your girl.” Some one closed the door, and she asked Harry Sledge to take her homa Then she heard the car drive off, and Harry Sledge turned the light out and told her everybody was gone. He then threw her down on the cot and commenced to choke her. She kicked him and bit the side of his face. He said: “I will kill you or do what I started to do.” That she screamed every time he let loose of her throat, and did everything she could to get loose from him until she became helpless, and by overcoming her utmost resistance he accomplished an act of sexual intercourse. He then got up and turned on the light. That her head and face were covered with blood. He said, “Get up from there and wash that blood off, or you won’t gO' home until morning.” That she went into the kitchen and washed her face. Then Ted Elliott came into the kitchen and he washed her face. They went back to the middle room, and Billy Morrison and Bill Brown came in. That after some talk Harry Sledge said, “You better take the girls and go home before there is any further trouble.” And Bill Brown, Ted Elliott, and Billy Morrison took her home. She told her sister Lillian what had occurred, and she telephoned Dr. McGregor, and shortly afterwards he called and examined her and treated her, and she was under his care and that of two other physicians for the next three weeks.

Billy Morrison testified, in substance: That she lived in Duncan. She knew the defendant, Ted Elliott, and also kneAV Harry Sledge. On the night of the alleged offense, she saw Ted Elliott and Harry Sledge. They came to the house where she was living; in the crowd was the defendant, Bill Brown, Harry Sledge, and Ethel Sreywas. Ted Elliott introduced Bill Brown as Bill Smith.

“I was staying at Mrs. Ford’s at the time. When we left where -I was staying, we went to Fern Hossington’s place. Sledge got out and went into the house. He came back and asked us to come in the house and dance. We did not go in. I told them I had to go back home, and> Sledge said he would take me home. They drove down the street and stopped, and we asked them why they stopped, and Elliott said they were going to get some whisky. They did not get any whisky. When we started again we told them to take us home, and we drove to the taxi corner and stopped the car, and Sledge got out and took the key and went up the street. When Sledge returned, he said he was going to take me home, and kept on going, north on Eighth street. I said, ‘This isn’t the way to take me home,’ and he said he was going out to the farm, there was a man he wanted to see, and as soon as he saw him he would bring me home. When we got to the farm, Ted Elliott and Harry Sledge went into' the house. They were gone a short while, and Ted Elliott came out on the porch and asked us to come in. We got out of the car. Ted Elliott came out to the car before Ethel got out. I heard him say to Ethel, ‘Are you going to sit in the car all night?’ In the middle room of the house there were three cots, a gas stove, and a gas light. I left the middle room and went into the front room. Harry Sledge came in behind me and closed the door. Ted Elliott came in the room immediately, and I took hold of Ted and held on to him, and he told me to turn him loose, and Harry Sledge began choking me. About that time a car drove up and Sledge went out to the car, and I asked Ted Elliott again to take us home, and he said he would take Ethel and me home. About that time Bill Brown came in the room and I asked him why he did not come in and help me, and asked him where he had been; Harry Sledge came back in the room, and Ted Elliott, Bill Brown, and I went into the front room and Sledge went on in the middle room. They stayed there a short while, and Ted Elliott came back into the front room and told me he was going, after some cigarettes. When he got to the front porch, Ethel started toward the car, and I started toward the car. I asked Elliott if I conld go with him and stepped on the running board, and he pushed me away and drove away from there. After Elliott left, Bill Brown and I sat on the porch. Immediately after that I heard Ethel scream very loud, and I told Bill Brown to go in and help Ethel. He refused to go and stop any car that passed and held me and would not let me go in the house, and would not let me go to the rig. There was an oil well being drilled near the house. Ethel kept screaming for about 20 minutes. Shortly after the screaming ceased, Elliott returned to the house. When he came, I told him to go to Ethel, and he said, ‘What is wrong?’ And I told Ted to go to Ethel as quick as he could, and he said, ‘What is wrong?’ And I told him to go to Ethel, and when he went in the house, he came out and told me he wanted to see me a minute, and I went in the room, and he told me Harry did what he started in to do, and they both were in a bad condition, and he wanted me to come in and talk to Ethel. Ethel’s face was covered with blood and one of her eyes was swollen and blood all over. Ted Elliott and I sat down on the cot in the northeast comer of the room, and Ted said all of us have gotten into it and had better get out the best way we could, and the best thing was to turn this into a car wreck, and Ethel and Harry got thrown through the windshield and Ethel got cut under the eye. While this conversation was going on, a car drove up, and Harry Sledge left the room. He was gone about five minutes and came back. Ethel heard her name called, and asked him why he did not tell she was out there, and asked who it was, and he said it was her sister. Ethel said, ‘You brute, why didn’t you tell her,’ and he saidx ‘Don’t call me a brute or I will knock your other damned eye out.’ We sat there 30 or 40 minutes after that, and Ted told Ethel it had all happened and could not be helped now, and if she told it it would only be a scandal on her and Harry would get out of it, that his dad was behind the law and he could get out of it, and that it would only be a scandal on her. Ted Elliott, Ethel, and Bill Brown all came to town with me. We did not go direct to Miss Sreywas’ home. Ted was begging Ethel not to tell it, to keep it quiet. I saw the boys next morning, and we said we were not going back to the Sreywas home. We drove by that night, and the house was lighted, and there were several cars there, and we knew there was trouble, and we were not going, back there.”

On cross-examination witness testified: She had never met Bill Brown personally—

“We stopped the car in front of the porch; I would not say how far it was from the porch. I could not say whether anybody lived in the house or not. The reason I went to the house, Ted came and asked usi to come in and wait. It was misting rain and chilly. Ted came back a short time after the screaming ceased. • Bill Brown held me and kept me from going to the cars until after the screaming ceased. I knew something was going on wrong with Ethel. I tried several times to get in there to help her. I did not go around to the window while this was going on and see Ethel and Harry sitting on the cot. Bill Brown went around to the window. Bill said there was nothing wrong; they were sitting there arguing. It was Ted Elliott that suggested it would be a good idea to turn it into a car wreck, and the boys joined in. I did not agree to that. Ted had shoved me off the running board of the car when he started to town and I wanted him to take Ethel and me home. He did not tell me he was going to get another girl. I became suspicious after Harry Sledge was choking me. We drove to' town and drove around a little while that night before we went home. There was Bill Brown, Ted Elliott, Ethel, and myself in the car. It was discussed between us as to it being reported as a car wreck. Ethel said she was going home to tell her sister. Ethel just asked us to come back early the next morning. Elliott was the one that wanted ,to turn it into a car. wreck, and I told Ethel that night I would work in her place next morning if she wanted me to. We ' were not calling it a wreck at that time.”

On redirect examination, the witness stated that at the Sledge house Ethel said she had to work, and Harry said if it was money she was harping about he would give her plenty of money.

“Harry was choking me, and I took hold of Ted Elliott and he began telling me to turn him loose. He did not do anything to Harry. It is not true Ted stopped Harry Sledge from assaulting me. The rig was about 300 feet from the house, I guess. The window that Bill Brown went around to was on the south side.”

Testimony was introduced by the county attorney showing he went to the house where the offense was alleged to have taken place and about having seen blood spots.on different places in the room. The doctor was called and testified as to the examination made on the prosecutrix, Ethel Sreywas; that she was beaten about the face, cut under her left eye and upper lip, and her left eye was bruised, and several marks such as would be made by finger nails on her neck—

“I found the inner part of her thigh covered with blood and bruised, and I should say a recently ruptured hymen; I would say the rupture was produced by a recent act of sexual intercourse; I treated her two or three weeks.”

This testimony was corroborated by other doctors who were present at the examination. At the close of the doctor’s testimony the defendant moved to strike from the record all the testimony of the witness Dr. Barkley for the reason that it was incompetent, irrelevant, and immaterial, and the state having heretofore shown that whatever her condition was, was brought about by another and there has been no application shown or attempted to be shown between this defendant and the party guilty of her condition, and there has been no proof introduced on the part of the state that would permit this testimony to go in against the defendant, and it is highly prejudicial to his interest, and we now ask the court to strike from the record, and admonish the jury not to consider it, which motion was overruled, and defendant duly excepted. The state then announced that with the exception of the introduction of the record as to what Ted Elliott said as to where he was and what took place when he went back to the Sledge farm house to get the defendant Sledge, and where he took Sledge for the remainder of the night, the state would close.

The defendant then stated to the court that the defendant, Ted Elliott, was present in court and they offer him to the state for its witness for any purpose they choose. The record was then properly proven as to the testimony given by Elliott as to his actions, and he showed he was in the crowd and took the prosecuting witness home, and afterwards returned to the Sledge farm and got Harry Sledge and took him to his home, and that Sledge remained with the defendant all that night. The defendant offered no testimony. When the state closed its testimony, the defendant demurred to the evidence introduced by the state for the reason that said testimony introduced is wholly insufficient to connect this defendant with the commission of the crime charged, which demurrer was overruled and defendant excepted. The defendant urges that it was the duty of the court under the law, and under the testimony in this case, to sustain the defendant’s demurrer to the testimony offered on behalf of the state, for the reason that there is no testimony in the case connecting the defendant with the commission of the crime, or that connects him with Harry Sledge in the commission of the crime, or in any manner connects him with aiding and abetting in the commission thereof. The record in this case discloses that the defendant in this case, together With Harry Sledge and Bill Brown, went driving on the streets of Duncan where the prosecutrix and her sister were spoken to, and the car in which the defendant and other parties were driving stopped at the curb; that the prosecutrix knew Ted Elliott, but was not acquainted with Bill Brown or Harry Sledge; that when the Sreywas girls were introduced to Brown and Sledge, Brown was introduced as Bill Smith by the defendant.

The testimony further shows this defendant was actively engaged in trying to get the girls to go for a drive, and this defendant, aided by the other defendants in the car, drove from place to place to get a girl for each of the boys, but they failed, and only the prosecutrix and Billy Morrison were in the car; they promised to- take them home, but instead of doing so they drove to the Sledge home a short distance away. The proof further shows that when they got out to the house Harry Sledge and this defendant went in the house, and then the defendant came out and asked the others to get out and come in the house; that finally the prosecutrix got out and followed Billy Morrison into the house; that after they got in the house Sledge took liberties with Billy Morrison, and she appealed to the defendant to make Sledge refrain from his actions and the defendant failed to do so; that Billy Morrison came out into the next room and left Sledge in, the house with the prosecutrix; defendant then stated he was going to town to get some cigarettes, and Billy Morrison begged him to take them back to town, and got on the running board of the car and was shoved off by the defendant, who drove away leaving Harry Sledge and Ethel Sreywas in the house and Bill Brown and Billy Morrison outside; within a short while the defendant, Ted Elliott, returned to the house and wanted to know what had happened, and then it was that Sledge told him what had taken place while he was making the trip to town; while in the house the proof shows this defendant suggested that the incident should be reported as. a car wreck in order to not injure the reputation of the outraged witness, Ethel Srey was; the girls insisted that from the time they started from town they appealed to the boys to take them home, and they would not do so ; they were all young people, and it is clear from the record in this case, that Harry Sledge and this defendant intended to get the girls out to this house, and that Sledge intended to carry out what he carried out when they drove out to' the house where the offense is alleged to have taken place.

' It is urged by the defendant that he was hot present when the rape was committed, but that he returned to town to get another girl and some cigarettes. This argument is presented without any testimony to support it, except that it is admitted that after the defendant assisted Harry Sledge and Bill Brown to get the two girls to the house where the offense is alleged to have taken place, and after he had gotten out of the car and gone in the house with Harry Sledge, he came out and succeeded in persuading the girls to get out of the car and go into the house. The testimony shows that Sledge took liberties with Billy Morrison, and she appealed to the defendant, and he refused to. give her any assistance; that Sledge took Ethel Sreywas into the adjoining room, and the defendant Bill Brown, and Billy Morrison went out on the porch, and when this defendant started to leave the place in the car Billy Morrison appealed to him to let them go to town with him, getting on the running board of the car, and was shoved off by defendant. The defendant drove away.

In considering the guilt or innocence of the defendant, it is necessary to consider his actions from the time the Sreywas girls met tbe defendant, Bill Brown, and Harry Sledge, up to tbe time of tbe alleged offense, and after tbe offense was committed up to tbe time be went back to tbe bouse and got Harry Sledge and took him borne with him, where Sledge stayed the remainder of tbe night. The question is: Is tbe testimony in this case sufficient to. show that tbe defendant, by bis actions or words, conspired with Bill Brown and Harry Sledge, or either of them, to get these girls out to the bouse in order to give Harry Sledge an opportunity to commit the outrageous and unspeakable crime he did upon the young and defenseless girl, Ethel Sreywas. The defendant insists that tbe facts and circumstances are consistent with his innocence, and that tbe court should have instructed tbe jury to return a verdict in favor of the accused, and that tbe verdict is not supported by sufficient evidence.

Tbe evidence and all tbe facts in this case tend to show that the defendant was aiding, abetting, and assisting Harry Sledge to get tbe girls out to bis bouse in order to give Harry Sledge an opportunity to commit tbe crime be committed. It is not contended by tbe state this defendant was actually present when Harry Sledge outraged Ethel Sreywas, nor was it neeessary that be be present if tbe evidence and. facts and circumstances tend to show the defendant entered into tbe conspiracy and aided, abetted, and assisted in getting these girls out to tbe farm house where be could have an opportunity to’ commit rape upon tbe prosecutrix. All the evidence in tbe case and tbe circumstances therewith strongly indicate that tbe defendant knew what was going to take place when be assisted in getting tbe girls away from town and out to the Sledge farm bouse without their consent,' and after they bad begged him to take them home.

The testimony further- tends to show that the defendant desired to conceal what had happened by reporting the cause of the bruises being a car wreck. We think the testimony sufficient, if believed by the jury, to show that the defendant by his acts in introducing the girls to Bill Smith, instead of giving the correct name of Bill Brown, and insisting on the girls going out to the farm and refusing to take them home when they appealed to him, and refusing to interfere in any way with Harry Sledge taking liberties with the girls, is sufficient to show that the defendant had conspired with, and aided, abetted, and assisted Harry Sledge in committing the crime of rape heretofore referred to.

In Blanck v. State, 14 Okla. Cr. 339, 169 Pac. 1130, 1132, the court said:

“This court has repeatedly held that the least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy.” Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; Ex parte Hayes, 6 Okla. Cr. 321, 118 P. 609; Wishard v. State, 5 Okla. Cr. 611, 115 Pac. 796.

We hold that the evidence was sufficient to warrant the court in overruling defendant’s motion for a directed verdict of not guilty. This court has repeatedly held that where there is competent evidence, though conflicting, it was the province of the jury to pass upon the same under proper instructions of the court.

The defendant further urges that the court committed error of law in its instructions to the jury, and in refusing to give certain requested instructions to the jury. After a careful consideration of the instructions in their entirety, we find that the court stated the law applicable to the facts in the record, and that the court did not err in refusing to give the instructions requested by the defendant. The instructions requested by the defendant are substantially covered by the instructions given by the court, and the refusal of the court to give the requested instructions did not prejudice the defendant.

It is next urged by the defendant that the county at; torney in his closing argument made statements prejudicial to the rights of the defendant which deprived the defendant of a fair and impartial trial. A careful reading of the record discloses that the statements complained of were in reply to the argument of counsel in presenting the good character of the defendant.

We hold that the evidence is sufficient to sustain the verdict; the instructions were fair to the defendant and substantially stated the law.

The judgment is affirmed.

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