author: BAREFOOT, J.

text:
    FLOSSIE CANNON v. STATE.
    No. A-9723.
    Nov. 27, 1940.
    (107 P. 2d 809.)
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Pawhuska, for the State.
    Carl C. Wever, of Pawhuska., for defendant.
   BAREFOOT, J.

Defendant was charged in Osage county with the crime of robbery with firearms, was tried, convicted and sentenced to. serve a term of five years in the penitentiary, and has appealed.

The information filed against the defendant was based on Oklahoma Statutes 1931, sec. 2543, O. S. A. title 21, sec. 801, which is as follows:

“Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to. rob or robs any person or persons, or who robs or attempts to. rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a. felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the .State Penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

The general statute defining robbery is Oklahoma Statutes 1931, sec. 2542, O. S. A. title 21, sec. 791, which is as follows:

“Robbery is a. wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

In the case of Smith v. State, 69 Okla. Cr. 17, 99 P. 2d 527, 529, speaking with reference to the above statutes, this court said:

“This general statute defining robbery is the statute upon which all robbery cases are based. The statute under which the information in this case was filed is what is known as a. statute of classification, and not definition. It does not supersede the statute defining robbery, but it only increases the punishment. The essential elements of robbery are as defined by the original statute. Randall v. State, 33 Okla. Cr. 262, 243 P. 983; Wells v. State, 34 Okla. Cr. 179, 245 P. 1007; Wissinger v. State, 39 Okla. Cr. 324, 264 P. 631; Kernell v. State, 53 Okla. Cr. 259, 10 P. 2d 287.”

The information filed in this case charged:

“* * * On or about the 15th day of January, 1939, in said county and state, the defendants, Flossie Cannon, colored, and Gladys Doe, whose more true and correct name is to affiant unknown, colored, then and there being, did'then and there wrongfully, willfully, unlawfully, and feloniously, while acting together by means of threats and violence toward the person of T. E. Morgan by the use of some dangerous and deadly weapon, the exact nature of which is unknown to affiant, and by pointing said weapon at the said T. E. Morgan thereby putting the said T. E. Morgan in fear of immediate personal injury to himself, take $26 in good and lawful money of the United States, the property of the said T. E. Morgan, from the person and' immediate presence of the said T. E. Morgan, and against his will, with the unlawful, wrongful and felonious intent then and there on the part of them, the said defendants, and each of them, to convert said property to' their own use and to’ deprive the owner permanently thereof, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.”

Defendant does not question the sufficiency of the information or the correctness of the instructions given by the court. It is only contended that the evidence is insufficient to' support the conviction, and that under the evidence defendant should have been charged with larceny and not with robbery.

To1 sustain this last proposition the following cases are cited: Nelson v. State, 11 Okla. Cr. 259, 145 P. 315; Monaghan v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L. R. A., N. S., 1149; and Kernell v. State, 53 Okla. Cr. 259, 10 P. 2d 287. A careful reading of these cases reveals that the facts are materially different to- those presented in the case at bar. In those cases there was no evidence that anything was done by defendant to put the party from whom the property was taken, in fear. Here the evidence revealed that defendant, at the time she entered the automobile, had in her hand a bright object which was concealed under her coat sleeve as she placed this instrument in the side of the prosecuting witness and directed him to* drive on. The prosecuting witness testified:

“* * * This one here had a coat on and apparently had something in her hand or in her sleeve and jobbed me and said go in this side, go this way, hurry up, gn this way and, she pointed east.”

That it had the appearance of a gun, and he believed it was one, and for fear of his life, he did as he was told, and under these circumstances he was robbed of his money. Under these facts there can be no* question but that the defendant was guilty of robbery and not of larceny. The three cases above cited discuss fully the distinction between robbery and larceny from the person. Often the distinction between these crimes is* very close. To constitute robbery the taking is accomplished either by force or by putting in fear. The violence or intimidation in robbery must precede or be contemporaneous with the taking of the property. The violence must be actual, personal violence, but the degree of force used is immaterial, except under statutes which provide for a punishment varying with the violence which accompanies the taking. If putting in fear is proved the offense is robbery.

In a late case decided by this court, Marks et al. v. State, 69 Okla. Cr. 330, 102 P. 2d 955, this question is fully discussed, and many of the earlier decisions of this court and the leading textwriters are reviewed and cited. It is unnecessary to* quote from this opinion. It may be read by those who desire to do so.

The contention of the defendant that the evidence in this case was insufficient to sustain the judgment and sen-fence, and that the court erred in failing to sustain the demurrer to the evidence of the state, cannot be upheld. The jury heard this evidence and returned a verdict giving defendant the minimum punishment permitted under the statute, of five years in the penitentiary. Oklahoma Statutes 1931, sec. 2543, O. S. A. title 21, sec. 801.

The facts reveal that defendant and her codefendant entered the automobile of the prosecuting witness when he stopped at a stop line in the city of Pawhuska about 8 or 8:30 on the night of January 15, 1939. They entered without his consent, and defendant immediately placed in prosecuting witness’s side a bright, colored instrument which was concealed by her coat sleeve, and which the prosecuting witness thought was a gun. She demanded of him that he drive straight ahead. He was forced to drive to the outskirts of the city and was robbed by the two women defendants of the sum of $26. After the robbery was committed, a fight ensued between the prosecuting witness and the two defendants. The codefendant Oladys Doe, who escaped and was not apprehended, was cut by the prosecuting witness. Defendant was twice knocked down by him. The officers of the city and county came to- the scene soon after the robbery, which was reported by the prosecuting witness. The defendant was apprehended in the kitchen of a nearby restaurant. Her knife and the $26 taken from the prosecuting witness were found in a garbage can. The defendant admitted putting them there. Her explanation of how she found the money after it was dropped by her codefendant, whom she claimed had taken it from the prosecuting witness, was evidently not believed by the jury, and justly so. The evidence fully justifies the verdict rendered in this case.

The defendant and her codefendant evidently entered the automobile of the prosecuting witness with the intention of robbing him. They carried out this purpose. The defendant had previously been convicted of a felony and had served two years in the penitentiary. Her evidence with reference to what happened was evidently and rightfully disregarded by the jury. The conduct of the prosecuting witness at the time of the robbery, his immediate report to the officers, and his appearance at the trial to testify were strong circumstances that his testimony was true as to what happened at the time.

Finding no error in the record, we are of the opinion that judgment and sentence of the district court of Osage county should be affirmed, and it is so ordered.

DOYLE, P. J., and JONES, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JAKE ALEXANDER v. STATE.
    No. A-9970.
    Nov. 27, 1940.
    (107 P. 2d 811.)

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Thos. C. Wyatt, Co. Atty., of Shawnee, for the State.
    Bandall Pitman, of Shawnee, for defendant.
   BAREFOOT, J.

The appeal in this case was filed in this court on the 18th day of November, 1940. It is . an attempted appeal from a hearing before the district court of Pottawatomie county in which the question of the sanity of said defendant, Jake Alexander, was tried before the court and jury prior to his being tried for murder, with which he stood charged in Pottawatomie county. On the 24th day of September, 1940, the jury returned a verdict finding defendant Jake Alexander sane.

The Attorney General has filed a motion to- dismiss the purported and attempted appeal for the following reasons :

“That the petition in error and case-made attached show in their face that this is not an appeal from a final: judgment or from an order in which an appeal is allowed; that, therefore, this court has no- jurisdiction to- entertain or hear the same.”

Upon the filing of said motion, the same was set for hearing for November 26,1940. Counsel for defendant has filed a confession admitting that the motion should be sustained, stating that he had come to- the conclusion “that the matter of present insanity is a collateral matter and not appealable.” This contention is substantiated by the text in 17 Corpus Juris, p. 36, § 3301, where it is said:

“Since the judgment upon a collateral issue is not a final judgment from which an appeal o-r a writ of error will lie, an order o-r decision based upon an independent trial of the question as to- defendant’s present sanity, either before trial, or after conviction, is not reviewable, even though accused is found insane by the verdict and is committed to an asylum by an order of the court. Likewise the proceedings and findings on an inquisition to- determine defendant’s present sanity, held after conviction and sentence, are not reviewable.”

In tbe case of Jordan v. State, 124 Tenn. 81, 185 S. W. 327, 329, 34 L. R. A., N. S., 1115, the court says:

“The question presented by the issue is not whether the defendant can distinguish right from wrong, but is, as explained by the trial judge in another part of his charge, whether he is at the time of the investigation incapable, because of unsoundness of mind, of rendering his attorneys such assistance as a proper defense to an indictment preferred against him demands. The guilt or innocence of the defendant is in no way or to no extent involved in the issue. The inquiry is not as to his mental status at the time the crime was committed, which may be months or years before, but the condition of his mind at the time the inquiry is being made. The object of it is solely to determine whether he has mind and discretion which would enable him to appreciate the charge against him, the proceedings thereon, and enable him to make a proper defense.
“It is a proceeding preliminary to the trial upon the guilt or innocence of the defendant, and the only effect it can have on such trial is to postpone it, in the event the issue is found for the defendant.
“It is purely a collateral issue, similar to those involved upon an application for continuance, or the qualification of a talesman when the jury is being impaneled. It is also somewhat analogous to cases where the question of the admission of evidence is presented and tried by the presiding judge, such as the competency of dying declarations and of secondary evidence of the contents of lost documents.”

This court also has recently held in the case of Robinson v. State, 70 Okla. Cr. 365, 106 P. 2d 531, 532:

“The appeal in a criminal case is from the judgment of conviction. There is no statute authorizing an appeal' from an order directing that the case be submitted to the same or another grand jury, or that a new information be filed. Sec. 2952, Sts. 1931, 22 Okla. St. Ann. § 508. Davenport v. State, 20 Okla. Cr. 253, 202 P. 18.
“An appeal is not a matter of inherent right. It is a right extended to the defendant by the favor of the state.
“The Code of Criminal Procedure provides: ‘An appeal to' the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.’ Section 3189, 22 Okla. St. Ann. § 1051.
“The language of the statute is so plain that there i» no room for construction. If it were otherwise, a new opportunity would be afforded to- invite the law’s delay.”

For the reasons above stated, the appeal in the above entitled cause is dismissed, and the case remanded to the district court of Pottawatomie county.

DOYLE, P. J., and JONES, J., concur.


author: DOYLE, P. J.

text:
    JOE FERGUSON v. STATE.
    No. A-9738.
    Nov. 27, 1940.
    (107 P. 2d 808.)

      Joe Adwon, of Oklahoma Oity, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Joe Ferguson, was convicted in the court of common pleas in and for Oklahoma county, on a charge of unlawful possession of eleven pints and twelve half pints of whisky with the unlawful intent to sell the same. A jury having been waived, the trial was had before the court.

The state relied for this conviction upon the testimony of three officers, and there was no testimony offered on the part of the defense.

Motion for new trial was duly filed and overruled on May 27, 1939; thereupon the court rendered judgment and sentenced the defendant to pay a fine of $50 and be imprisoned in the county jail of Oklahoma county for 30 days, and that he pay the costs.

An appeal from the judgment was perfected by filing in this court on September 19, 1939, a petition in error with case-made and proof of notices.

No briefs have been filed and no appearance for oral argument made.

Where a defendant appeals from the judgment of conviction and no briefs in support of the petition in error are filed and no appearance for oral argument made, this •court will examine the record for jurisdictional errors, and finding no fundamental error, the judgment will be affirmed.

We have closely examined the record and have found no error therein which would warrant a reversal of the judgment, and it appearing that the defendant was accorded a fair trial and was properly convicted, the judgment of the trial court herein is accordingly affirmed.

BAREFOOT and JONES, JJ., concur.


text:
    ORLEY MARTIN v. STATE.
    No. A-9726.
    Dec. 4, 1940.
    (108 P. 2d 191.)
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. Hendrix Wolf, Co: Atty., of Jay, for the State.
    J. G. Austin, of Miami, for defendant.
   BAREFOOT, J.

Defendant was charged with the crime of robbery with firearms in Delaware county; was tried, convicted and sentenced to serve a term of five years in the penitentiary, and has appealed.

The only error complained of for reversal of this case is that the judgment and sentence is not supported by the evidence, and it is insufficient to warrant the court in sustaining the same.

It is not necessary to quote extensively from the record. We have carefully examined the evidence and find that there was a direct conflict in the evidence of the state and the defendant. Under many decisions of this court it has been held that we will not reverse a judgment in the absence of errors of law where there is a clear conflict in the testimony, after a jury has found adversely to the contentions of the accused and the findings have been approved by tbe trial court. The case will be reversed as not being supported by the evidence only if no substantial evidence tends to show guilt, or the evidence is so insufficient that the jury must have acted from partiality, bias or prejudice. It is only reversible when there is a failure of competent or legal evidence. Kimbrough v. State, 68 Okla. Cr. 66, 89 P. 2d 982; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; Adams v. State, 54 Okla. Cr. 363, 21 P. 2d 1075; Tillery v. State, 23 Okla. Cr. 226, 214 P. 198; Robinson v. State, 60 Okla. Cr. 443, 65 P. 2d 212; Mann v. State, 49 Okla. Cr. 210, 292 P. 883; Harris v. State, 49 Okla. Cr. 213, 292 P. 885.

The defendant Orley Martin was charged jointly with Clarence “Mack” Wilson with the crime of robbery with firearms of one T. T. Eodgers in Delaware county on the 24th day of September, 1938. The defendants were identified by the prosecuting witness as being the two parties who held him up and robbed him about 8:30 at night on a country road while he was going to the home of his brother-in-law, Lesley Pollan. They held a gun on him and took from his possession $2 in money and his knife. The prosecuting witness testified that just prior to the robbery, he flashed a flashlight which he had onto' the defendants and recognized them as being the parties who were holding him up. They lived in his community, and he had known them for a number of years. While the robbery was being completed, the defendant put on a mask which he had in his possession. Immediately after the robbery was consummated, he started to the home of his brother-in-law, and they told him not to go; that he started in the other direction; that they fired a shot and fled, and that he turned and then went to' the home of his brother-in-law, where he immediately reported he had been robbed and the names of the parties who had robbed him. His brother-in-law corroborated this evidence. Other witnesses heard a shot fired in that direction about the time of the robbery.

The evidence of the defendant was what is known as an alibi. If believed by the jury it would have been sufficient for them to find the defendant not guilty. They evidently did not believe it. Defendant’s evidence placed him and his codefendant Clarence “Mack” Wilson together in close proximity to the scene of the robbery. The variance between the testimony of the state and the defendant was mostly a question of time. Under the rule heretofore announced, we are of the opinion that the judgment and sentence should be affirmed.

The defendant prior to this case had pleaded guilty to the commission of a felony. The jury gave him the minimum punishment prescribed by the statute. The judgment and sentence of Delaware county is therefore affirmed.

DOYLE, P. J., and JONES, J., concur.


author: JONES, J.

text:
    J. A. SCOTT v. STATE.
    No. A-9769.
    Dec. 4, 1940.
    (108 P. 2d 189.)

      Darnell & Gibson, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Milton Keen, Co. Atty., of Clinton, for defendant in error.
   JONES, J.

The defendant J. A. Scott was charged in the county court of Custer county with the offense of driving a car in a careless and reckless manner, wa's tried, convicted and adjudged to pay a fine of $10 and costs, and has appealed to this court.

The only assignment of error that- we need to consider is the contention of the defendant that the court erred in not sustaining his demurrer to the evidence and advising the jury to return a verdict of not guilty at the close of the state’s case.

When this case came on for oral argument, the Attorney General appeared for the state and confessed error, and agreed that the evidence of the state was wholly insufficient to support the offense named in the information. Later, upon application of the county attorney, the county attorney was granted permission to file a brief supporting the state’s theory of the case.

We have carefully gone over the record herein and thoroughly considered the statements and argument set forth in the brief filed by the county attorney; but we think the Attorney General was absolutely correct; and that under the state of record, it was his duty as Attorney General, where the evidence is wholly insufficient as herein, to confess error and allow the cause to be reversed and the action dismissed.

The information filed against the defendant is as follows :

“Now comes Milton Keen, county attorney, in and for the county and state aforesaid, duly authorized and empowered to inform of all offenses committed and triable therein, and gives the court to know and be informed that one J. A. Scott late of the county of Custer and State of Oklahoma on or about the 15th day of December in the year of our Lord one thousand nine hundred and thirty-eight, (1938), at and within the said county and state did then and there commit the offense of driving a car in a careless and reckless manner in manner and form as follow's, to wit: that on or about the date aforesaid, in the county and state aforesaid, the said J. A. Scott then and there being did then and there willfully, unlawfully and wrongfully drive and operate an automobile vehicle in a careless and reckless manner and without due (care) for the safety of the people or their property and in such manner as to1 endanger the life and limbs and property of other persons and the safety of their property and did drive an automobile to wit: 1935 Buick sedan upon highway No. 66 without looking to see if other cars were driving upon said highway did drive directly in the path of other cars and at a greater speed than wnuld permit the said J. A. Scott to' bring said automobile to a stop within the assured clear distance ahead, contrary to the form of the statutes in said case made and provided; and against the peace and dignity of the ¡State of Oklahoma.”

The state introduced only two witnesses. Two highway patrolmen learned of the wreck 10 or 15 minutes after it happened and drove to where the collision had occurred.

Dee Coley testified that he had been a highway patrolman about two years; that in the afternoon of December 15, 1938, he saw the defendant J. A. Scott about three-fourths of a mile east of Clinton on U. S. Highway 66; that there were also present two* carloads of people, one group from California, the other from Oklahoma City; that there had been an accident; that when he got to the scene of the accident, he found Mr. Wallace’s car from Oklahoma City had collided with two' other cars; Mr. Wallace’s car had turned over on its top on the paving; it had hit the car from California, which was going east, and some of the passengers were scratched and bruised. The defendant’s car was parked off the paving on the north side; and witness was told that it had collided with Mr. Wallace’s car; that he examined tracks and skid marks, and ascertained that the California car, coming from the west, and the Wallace car, coming from the east, had collided; that Mr. Wallace’s car had struck the rear bumper of the defendant’s car, and then collided with the California car; that Mr. Scott’s car had been driven on down the road and off the paving, where it had stopped; that at the spot Scott had pulled onto the paving from his driveway a clear view could be had to' the west for about one-half mile, and to the east for about 300 yards. He did not see the accident, but arrived at the scene about 10 or 15 minutes after it occurred; and his testimony is based upon skid marks and tracks which he saw, and statements concerning the wreck made to him by the parties which he found upon his arrival; that the defendant told him that he had plenty of time to pull on the paving, but the car from the east was driving too fast.

Cecil A. Peevey testified that he was a highway patrolman, who was stationed at Clinton on December 15, 1938; that he did not see the accident in which the defendant and a Mr. Wallace and the people from California were involved, but that he was informed of the wreck and arrived at the scene about 15 minutes thereafter. His testimony as to the skid marks and tracks was in substance the same as that of the other patrolman.

The state rested its case at the conclusion of the testimony of these two witnesses; and it is the failure of the court to sustain a demurrer to the state’s evidence and his refusal to advise the jury to return a verdict of not guilty upon conclusion of the state’s case that is the basis for the assignment of error urged upon this appeal.

The statute under which this prosecution was instituted is section 14, ch. 118, 1933 Session Laws of Oklahoma, 47 Okla. St. Ann. § 92, which reads as follows:

“Section 14. That section 10323, Oklahoma Statutes, 1931, be and the same is hereby amended to- read as follows :
“ ‘Section 10323. Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no' person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. Provided, no motor bus or other motor vehicle transporting passengers for hire shall be driven upon any public highway of this state at a rate of speed in excess of forty-five (45) miles per hour.
“ ‘Any person violating the provisions of this section shall be guilty of a misdemeanor and shall, upon conviction, be fined not less than ten dollars ($10.00) and not more than one hundred dollars ($100.00), or imprisoned in the county jail for not less than ten (10) days nor more than (30) days, or by both such fine and imprisonment. Provided, that it shall be unlawful for any arresting officer to participate in or receive any portion of the fines or fees collected from any persons under this section.’ ”

Under this statute, the proof upon the part of the state must show the defendant guilty of culpable negligence in the operation of his automobile. The state’s case, of course, is based upon the theory that there was a wreck, and that the defendant’s alleged negligence in driving his automobile onto the highway caused the wreck, and was in violation of the statute.

Not an eyewitness testified. The proof of the highway patrolmen wholly fails to show that degree of culpable negligence on the part of the defendant which is necessary to constitute a crime under this statute.

After the court had overruled the demurrer to the evidence, the defendant and two other witnesses testified for the defense.

In the brief filed by the county attorney, he insisted that the conviction should be affirmed because of certain damaging admissions made by the defendant in the trial of the case in his own defense.

However, in considering the only assignment of error urged here on appeal, which is the failure of the state to make a prima facie case, this court can only give consideration to the evidence introduced by the state, to which the demurrer was directed.

Since the proof introduced on behalf of the state was wholly insufficient to establish culpable negligence on the part of the defendant in the operation of his automobile, the court should have sustained the demurrer interposed by the defendant at the close of the state's case and discharged the defendant.

For the reasons above stated, the confession of error by the Attorney General is sustained, and the judgment of the county court of Ouster county is reversed, and the defendant is hereby discharged.

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


text:
    J. C. (CLIFF) HAYS v. STATE.
    No. A-9791.
    Dec. 4, 1940.
    (108 P. 2d 187.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant J. C. Hays was by information filed in the county court of Garfield county on August 15, 1939, charged with possession of intoxicating liquor; tried, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50 and costs, from which judgment and sentence he appeals to- this court.

This case is similar in many aspects to the case this day decided against the same defendant. See Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 186.

The search warrants, so- far as the form is concerned, are identical, and the things stated in that opinion will apply with equal force to the questions raised herein.

The defendant makes one additional assignment of error which is not considered in Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 186, to wit:

That the court erred in forcing the defendant to- trial before a jury, some members of which had been in the court, room while a former trial of this defendant was in progress.

During the term of court in which this case was tried, and prior to the trial of this case, the defendant had been tried and convicted of a similar, yet separate, offense from the one charged herein. Four of the jurors in this case had been summoned for jury duty on the morning of the trial of the former case and were present in the courtroom when the jury was impaneled and examined on voir dire. These jurors heard the county attorney make some statements as to the nature of the offense in the former case.

This court has held it to be reversible error for the trial court, over the objection of defendant, to impanel a jury for the trial of the defendant from among those who had sat as jurors in the trial of a similar case against him at the same term of court. Jean v. State, 49 Okla. Cr. 409, 295 P. 233; Popp v. State, 44 Okla. Cr. 220, 280 P. 478; Moffitt v. State, 45 Okla. Cr. 440, 283 P. 1027; Weber v. State, 44 Okla. Cr. 450, 281 P. 987.

But, the four jurors in this case, whose impartiality is questioned, did not sit as jurors in the former case.

In Harvey v. State, 46 Okla. Cr. 257, 287 P. 834, this court held:

“Where the question of the sanity of the defendant is tried to part of the panel of the jury, and where other members of the panel hear a portion of such evidence and are present in the courtroom when such verdict is returned, they are thereby disqualified to sit as jurors in the trial of defendant where his defense is insanity.”

See, also, Vance v. Territory, 3 Okla. Cr. 208, 105 P. 307.

The jurors in this case did not hear any of the evidence nor the verdict in the former case. These were separate and distinct cases, involving separate and distinct issues, although similar ones. It is our opinion that a juror is not disqualified as an impartial juror by reason of the fact that he happened to be in the courtroom waiting to be called to the jury box during the voir dire examination for the trial of the same defendant upon another charge where, after the jury is selected, the remainder of the jury panel were sent from the courtroom and admonished hy the court to stay away from the courtroom during the progress of the trial. The record shows that the court on its own motion dismissed certain of the jurors when, in response to questions raised on the voir dire examination, it was indicated that they might have heard some of the opening, statement of the county attorney at the beginning of the trial in the former case. Certainly there is nothing in the size of the verdict to indicate prejudice. The defendant did not take the stand, and! only the minimum punishment was assessed.

The burden of proving the disqualification of the jurors was on the defendant, and he has wholly failed to sustain the burden.

The judgment of the county court of Garfield county is accordingly affirmed.

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


text:
    J. C. HAYS v. STATE.
    No. A-9790.
    Dec. 4, 1940.
    (108 P. 2d 187.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, J. C. Hays, was by information filed in the county court of Garfield county on November 29, 1938, charged with the offense of possession of intoxicating liquor; was tried, convicted and sentenced to serve a term of 60 days in the county jail and pay a fine of $100 and costs, from which judgment and sentence he appeals to this court.

Eighteen assignments of error are set forth in the petition in error attached to the case-made filed herein. However, no brief has been filed in this cause; and when the same was set for oral argument, only the following propositions were urged by the defendant:

1. That the court erred in overruling defendant’s motion to suppress the evidence for the reason that the affidavit for the search warrant was upon its face insufficient to authorize the issuance of a search warrant.

2. That the search warrant is insufficient on its face to authorize the search for the reason that it does not show that it was issued by a justice of the peace of Garfield county having jurisdiction to- issue the same.

Under the first assignment of error it is contended that the search warrant was issued upon an insufficient affidavit and is a nullity, and evidence obtained by authority of such search warrant illegal. The search warrant and affidavit upon which it is based appear in the record; and while the affidavit is subject to criticism, it is sufficient under the decisions of this court.

It is contended by the defendant that the affidavit was made on information and belief. Such statement is unquestionably correct as applied to the first paragraph in which are set forth the ultimate facts, the present and existing guilt of the defendant and the situation which the affiant believes to exist and to be revealed upon the issuance of a search warrant and the making of the search. The remainder of the affidavit, however, is not made upon information and belief. It is a positive statement under oath of the facts which constitute the basis of the conclusions stated in the first paragraph. It is entirely distinct from the first paragraph, and its allegations are not limited by any reference to the information and belief.

In Baker v. State, 28 Okla. Cr. 408, 231 P. 320, this court set out a model form of affidavit.

This court in the recent case of Boggess v. State, 70 Okla. Cr. 156, 105 P. 2d 446, held an affidavit similar in form to the one in question sufficient. In this case are reviewed the cases bearing upon this question. See, also, Smith v. State, 30 Okla. Cr. 144, 235 P. 273; Roe v. State, 32 Okla. Cr. 113, 240 P. 140; Dobbs v. State, 39 Okla. Cr. 376, 265 P. 658; Hayes v. State, 41 Okla. Cr. 302, 274 P. 41.

In Blair v. State, 55 Okla. Cr. 280, 29 P. 2d 998, this court upheld the sufficiency of an affidavit which is almost identical with the affidavit herein.

The defendant contends that since the search warrant reads as follows: “Whereas, Complaint has been made in writing, and upon oath before me, Judge of the Justice Court, in and for Garfield County, Okla. * * *” that the same is not sufficient to show in what court it was filed, and the proceedings thereunder are a nullity.

This contention is highly technical and without merit. The justice of the peace signs the search warrant as follows :

“Given under my hand at Enid, Oklahoma, this the 19th day of November, 1938.
“(Signed) J. S. Jacobs
“Justice of the Peace.”

Under section 3326, O. S. 1931, 39 Okla. St. Ann. § 492, the jurisdiction of justices of the peace are coextensive with that of the county. This search warrant is sufficient to show that it was issued by J. S. Jacobs, justice of the peace, operating at Enid, Okla. Of course, if the defendant could prove that there is no justice of the peace by the name of J. S. Jacobs, and that the search warrant is fictitious and a forgery, then his contention would be upheld. But under the state of the record before us, the trial court did not err in overruling the defendant on this point.

Finding no error of sufficient importance to require reversal, the judgment of the county court of Garfield county is hereby affirmed.

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


text:
    HENRY COOK et al. v. STATE.
    No. A-9734.
    Dec. 11, 1940.
    (108 P. 2d 184.)

      W. W. Miller, of Tahlequah, for defendants.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and June Bliss, Co. Atty., of Tahlequah, of Cherokee County, for the State.
   BAREFOOT, J.

Defendants were jointly charged with, the crime of larceny of domestic animals in Cherokee county, were tried, convicted, and their punishment left to the court. The defendant Henry Cook Avas sentenced to serve a term of three years in the penitentiary, and the defendant John Cook was sentenced to serve a term of two years. From these sentences, both defendants have appealed.

All assignments of error may be considered under one head:

“That the verdict of the jury and the sentence of the court is contrary to the evidence and is not sustained by sufficient evidence.”

The defendants were charged with the larceny of three •head of cattle, two cows and one red hull calf, in Cherokee county on the 15th day of September, 1938, the same being the property of H. S. Nodine, L. F. Scroggins and L. F. Scroggins, Jr. All of these parties and the defendants lived in the same community in Cherokee county. It is unnecessary to refer extensively to the evidence in this case.

We have carefully read the record and the briefs filed by both the state and the defendants, and examined the authorities therein cited. The evidence is wholly insufficient to sustain the judgment and sentence in this case.

The evidence of the state consists of only a slight circumstance against the defendants, and their conviction could have only been based upon a surmise or a guess. The testimony of the defendants and of disinterested witnesses is such that the defendants were, in all probability, not guilty of the crime charged against them. The- verdict of the jury in this case can only be surmised by reason of the fact that one of these defendants had several years prior to this trial pleaded guilty to stealing chickens in the State of Kansas, and the other defendant was very drunk at the time of the alleged commission of this offense. There was no evidence to show the defendants in possession of the stolen cattle, no evidence of their being hauled away by defendants, and no evidence to show they were ever sold. The evidence only reveals that they had been lost from the range and were never found.

While this court will uphold the verdict of the jury where the same is based upon competent, legal evidence or when there is a. conflict of evidence on the part of the state and the defendant, yet where there is a complete failure of the evidence to prove the crime charged or where the conviction is the result of passion or prejudice, we will not hesitate to reverse the case. Gray v. State, 66 Okla. Cr. 211, 90 P. 2d 686; Rambo v. State, 63 Okla. Cr. 189, 73 P. 2d 873; Paris v. State, 66 Okla. Cr. 236, 90 P. 2d 1078.

In McLaughlin v. State, 18 Okla. Cr. 137, 193 P. 1010, 1012, the court said:

“It is unquestionably the law that crime may be established by circumstantial evidence, otherwise society would be at the mercy of the criminal classes, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and where circumstantial evidence solely is relied on for a conviction the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every other reasonable hypothesis except that of guilt. Can it reasonably be said that the fact that this defendant was riding in the stolen car with one wlm was confessedly the thief was sufficient to show his complicity in the crime charged. It seems to' us clearly that it was not, and, for this reason, when the state closed its case in chief, the instruction asked by the defendant directing the jury to- return a verdict of acquittal should have been given at that time.”

This case comes clearly within the rule that the evidence is wholly insufficient to1 sustain the judgment and sentence of the court, and for the reasons above stated, the judgment of the district court of Cherokee county is reversed, and unless the state can produce evidence other than the record discloses, it is ordered that this case be dismissed.

DOYLE, P. J., and JONES, J., concur.


text:
    AUGUSTA EARL HERRING v. STATE.
    No. A-9952.
    Dec. 11, 1940.
    (108 P. 2d 193.)
    Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Augusta Earl Herring, alias Earl Herron, alias George Wilson, was convicted in the district court of Oklahoma county of the crime of attempted burglary in the second degree, after former conviction of a felony, and in accordance with the verdict of the jury was sentenced to confinement in the state penitentiary at McAlester for the term of four years.

Prom the judgment rendered April 17, 1940, an appeal was perfected by filing in this court on October 15, 1940, a petition in error with case-made.

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

“That plaintiff in error has, without leave of court, left the State of Oklahoma and gone to Arkansas, that on or about the 9th of November, 1940, while driving a car with a load of whisky in or near McGehee, Desha county, Arkansas, he had a wreck and is being held by the authorities in the State of Arkansas for a violation of the law in that jurisdiction.
“Defendant in error would further show that plaintiff in error has been previously convicted of several crimes, part of his criminal record being as shown by ‘Exhibit A’ hereto attached. (Transcript of the record, State Department of Public Safety.)
“In addition to1 the crime record as shown by ‘Exhibit A’, said plaintiff in error was convicted in the district court of Johnston county, on or about September 30, 1940 on a charge of burglary and was sentenced to imprisonment for four years, in which case an appeal is now being* perfected; in addition, he stands charged by information in Johnston county for knowingly receiving stolen property; and stands charged for second degree burglary in the district court oí Murray county, set for November 29, that on said date he failed to appear for arraignment, and his appearance bond was forfeited and bench warrant issued for his arrest.
“Wherefore, premises considered, defendant in error respectfully asks that said appeal may be dismissed.”

A hearing was had upon said motion before the court on December 9th, at which time counsel for plaintiff in error appeared with plaintiff in error in person.

Plaintiff in error as a witness in his own behalf admitted all the allegations of the motion to dismiss, and in addition thereto admitted that he had left the state without leave of court during the pendency of this appeal, on business trips to the states of Missouri and Texas, temporary visits only, but stated that he has at no. time been a fugitive from justice, and had at no time left the jurisdiction of this court in order to. defeat the enforcement of any judgment which might be rendered against him; that he returned from the state of Arkansas yesterday, December 8th, in order to be present at this hearing.

Under the Constitution and the Code of Criminal Procedure of our state, an appeal may be taken to this court ■by any person convicted of a crime as a matter of right, and under the Constitution the Legislature may prescribe the mode in which the right may be exercised.

Our Code provides that if the crime of which the defendant is convicted be a bailable one, the defendant may give an appeal bond, and the bond shall stay execution of the sentence during the pendency of the appeal. Section 3195, 22 Okla. St. Ann. § 1057.

Our Code further provides:

“If an appeal is taken and the appeal bond given as provided in the preceding section, said bond shall be conditioned that the defendant will appear, submit to and perform any judgment -rendered by the Criminal Court of Appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the court.” Section 3196, 22 Okla. St. Ann. § 1058.

The uniform holding of this court is that where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order it may render and enter in the case. Belcher v. State, 9 Okla. Cr. 50, 130 P. 515; Holden v. State, 14 Okla. Cr. 463, 172 P. 977; Morgan v. State, 14 Okla. Cr. 466, 172 P. 974; Webster v. State, 18 Okla. Cr. 183, 193 P. 431; Simpson v. State, 29 Okla. Cr. 57, 232 P. 455; Kincaid v. State, 30 Okla. Cr. 290, 237 P. 131.

In Evinger v. State, 35 Okla. Cr. 12, 247 P. 416, 417, it is said:

“Where it is shown that appellant, after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his appeal bond, he thereby waives the right that was given him to' have the judgment of conviction superseded, and it then becomes discretionary for this court to proceed to a determination of the case on its merits, or to dismiss such appeal for that reason.”

In Morgan v. State, supra, this court held:

“Where a defendant has been convicted and appeals from the judgment and sentence, this court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and, where he leaves the state and is convicted of crime in another state pending the determination of his appeal, this court will on proper motion dismiss the appeal.”

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, 977, it is said:

“If persons who are convicted of crime within this state leave the jurisdiction of this court after taking’ an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must, be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to. roam at large pending such appeal, continually violating the criminal statutes of this state.”

While there is no express provision of the statute authorizing the dismissal of an appeal on the grounds stated, yet, in the absence of a statute to the contrary, the rule is well settled that it is a matter within the discretion of the court whether, upon the uncontroverted facts, plaintiff in error has waived his right to have his appeal considered and determined.

The plaintiff in error each time he left the state was in the attitude of a fugitive from justice, and thereby waived the right to have his conviction reviewed. We do not think it would subserve the ends of justice to permit a person convicted of crime, enlarged on bond pending the determination of his appeal, to violate the conditions of his bond with impunity, and where it is conclusively shown, as in this case, that plaintiff in error has been persistent in violating the conditions of his bond, his appeal should be dismissed.

The appeal is therefore dismissed and the case remanded to the trial court, and it is ordered that the judgment and sentence of the district court herein be carried into execution. Mandate forthwith.

BAREFOOT and JONES, JJ., concur.


text:
    AUGUSTA EARL HERREN v. STATE.
    No. A-9944.
    Dec. 11, 1940.
    (108 P. 2d 195.)

      Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, At-ty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Augusta Earl Her-ren, was convicted on a charge that he did have in his possession 74 pints of nontax-paid liquor with intent to violate the prohibitory liquor law, and was sentenced to 30 days’ confinement in the county jail and to pay a fine of $75 and costs.

From the judgment rendered June 8, 1940, an appeal was perfected by filing in this court on October 5, 1940, petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal herein on the grounds stated in the case of Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193.

A hearing was had upon said motion before the court on December 9th, at which time counsel for plaintiff in error appeared with plaintiff in error in person.

The admitted facts as shown by testimony of the plaintiff in error are the same as those in the other case.

For the reasons stated therein, the appeal is hereby dismissed, in accordance with the uniform holding* of this court that where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the condition of his bond by leaving the state without leave of court and is convicted of crime in another state, pending the determination of his appeal, this court will on proper motion dismiss the appeal.

Under the rule stated and the uncontroverted facts, it is ordered that the appeal be dismissed and the case remanded to the trial court. Mandate forthwith.

BAREFOOT and JONES, JJ., concur.


author: HOYLE, P. J.

text:
    ELIJAH ROBINSON v. STATE.
    No. A-9739.
    Dec. 11, 1940.
    (108 P. 2d 196.)

      J. Q. A. Harrod and Laynie W. Harrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, At-ty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   HOYLE, P. J.

The information in this case charged that in Oklahoma county, on the 10th day of February, 1939, Elijah Robinson did then and there have in his possession “One (1) quart of Non Tax Paid Whisky,” with the unlawful intent to sell the same.

When the case came on for trial, it was stipulated and agreed to' try the case before the court without a jury.

The state called two witnesses: Ross Pierce, deputy sheriff, testified that on the date alleged:

“I went to 319 N. E. Second street and found this one-half gallon jar with the whisky in it, and a little whisky glass beside it on the shelf full of whisky. There was several empty half gallon jars, two or three of them smelled whisky. There was a girl who worked for him behind the counter, and several men sitting at a table; I had a conversation with the defendant. He told me that he just could not make a living selling nickel hamburgers and that he was selling a little whisky to- help make his living.”

This testimony was admitted against the defendant’s objection that the officers had no valid search warrant to search the premises.

On cross-examination he stated the half gallon jar was about half full. He identified the jar, saying it is in the same condition now as it was when he found it. “I had never before been inside that little partition, I had been in the other part.”

Clint Johnson, deputy sheriff, testified:

“I had occasion to go to 319 N. E. ¡Second, saw the defendant there, we found half gallon fruit jar, about half full of corn whisky, there were several other fruit jars scattered around there; I smelled of one or two of them, I think they had contained whisky; we found a glass that was full of whisky. The defendant told us either there or on the way in that he was not making quite enough money at the hamburger business, and that he was selling a little whisky to make up the difference.”

It was stipulated that the testimony offered by the defendant on his motion to suppress the evidence be considered as his defense in this case.

The record shows the following stipulation:

“On August 30, 1939, the court reporter in the presence of the bailiff of said court, poured from the fruit jar into a milk bottle purporting to be a quart bottle labeled ‘Steffens,’ the contents of said fruit jar marked State’s Exhibit 1, and discovered that the contents of said exhibit lacked about two' inches of filling the neck of said milk bottle; and for further test found that said contents filled one pint bottle and about two-thirds of another pint bottle.”

It will be observed that the quantity alleged is not in excess of one quart.

The defendant again at the close of all the testimony renewed his motion to suppress the evidence and strike from the record all of the testimony of the officers Pierce and Johnson, for the reason that the same was obtained in violation of law and in violation of his constitutional rights, and now moves the court to enter judgment discharging the defendant. Which were overruled. Exceptions allowed:

“The Court: Let the defendant be found guilty as charged in the information and case continued to May 28, 1939, for sentence.”

Motion for new trial was duly filed, presented and overruled on May 29, 1939, thereupon the judgment was pronounced and entered.

To reverse the judgment defendant assigns as error the overruling of his motion to suppress evidence; the overruling of his motions for a directed judgment at the close of the state’s evidence, and at the close of all the evidence, and that the finding and judgment of the trial court is contrary to' both the law and the evidence.

When the case was called for trial defendant interposed motion to suppress the evidence because the same was obtained by an unlawful search of his place without a valid search warrant in violation of his constitutional rights.

The motion challenged the sufficiency of the affidavit for the search warrant and the warrant issued thereon, because tbe person named is “John Doe”, and the premises described as “The lower floor of a two-story brick building located at 319 N. E. 2nd Street, in Oklahoma City, County and State.”

The undisputed facts in evidence on the motion to suppress are that there is a two-story brick building 60 feet wide, facing south in the 300 block N. E. Second street; that the ground floor on the east side is occupied by a pool hall and defendant’s place on the west side is about ten or twelve feet wide; that the liquor in question was found in defendant’s place.

On cross-examination defendant testified that his place was. a hamburger stand with a 12-inch board 12 feet long for a counter; that he had the whisky the officers found in the fruit jar for his own personal use, and was going to take it home, and did not intend to sell it; that he never did sell whisky.

In every criminal prosecution, it devolves upon the state tO' prove, first, the corpus delicti; second, that the crime charged was committed by the accused. This court will not ordinarily disturb the decision of a trial judge in overruling a, demurrer to the evidence, or in denying a motion for a new trial, based upon the insufficiency of the evidence to support the finding of the trial court where a jury has been waived; and it will not do so where the record discloses evidence showing the commission of the offense charged, and from which guilt of the defendant can be fairly inferred; but it will interfere where it clearly appears that the findings of fact and the decision of the trial court have no substantial support, or are clearly without support in the evidence.

That, a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession; tlie confession being- admitted merely for the purpose of connecting the accused with the offense charged.

After a careful consideration of this case our conclusion is that as a matter of law the evidence was not sufficient to sustain the finding- and judgment of the trial court.

The mere possession of intoxicating liquor, without an intent to convey, sell, or otherwise dispose of such liquor, is not a crime. Williams v. State, 34 Okla. Cr. 1, 244 P. 202.

To justify or sustain a conviction for unlawful possession of intoxicating liquor, there must be evidence sufficient to1 prove possession with intent to violate provisions of the prohibitory law. Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869.

The intent is the gist of the offense of unlawful possession of intoxicating liquor, and cannot be presumed where the amount is not in excess of one quart, but must be shown by competent evidence and beyond a reasonable doubt to exist.

The statute, chapter 153, sec. 3, p. 339, Session Laws 1933, 37 Okla. St. Ann. § 82, provides that the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors “shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

The phrase “prima facie evidence,” as used in the statute, is such evidence as, in the judgment of the law, is sufficient to' establish the unlawful intent, unless rebutted or the contrary proved.

Extrajudicial confessions of guilt, without proof of the corpus delicti, are insufficient to justify a conviction.

In 22 C. J. S., Criminal Law, § 889, it is said:

“It is the general rule both under statutes and at common law that an extrajudicial confession does not warrant a conviction unless it is corroborated by independent evidence of the corpus delicti.” Citing the following Oklahoma cases: Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765; Lake v. State, 59 Okla. Cr. 280, 57 P. 2d 199; Young v. State, 56 Okla. Cr. 375, 40 P. 2d 686; Bridwell v. State, 52 Okla. Cr. 353, 5 P. 2d 403; Edwards v. State, 46 Okla. Cr. 77, 288 P. 359; Blakemore v. State, 39 Okla. Cr. 355, 265 P. 152; Cherry v. State, 33 Okla. Cr. 37, 241 P. 833; Key v. State, 26 Okla. Cr. 55, 221 P. 1048; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Henry v. State 14 Okla. Cr. 189, 169 P. 658; Shires v. State, 2 Okla. Cr. 89, 99 P. 1100. And see Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L. R. A. 1917A , 1287.

Corpus delicti is defined as the substantial and fundamental fact or facts necessary to the commission of a crime, and means when applied to' any particular offense, the actual commission by some one of particular offense charged. Gorum v. State, supra.

In Forte v. United States, 68 App. D. C. 111, 94 P. 2d 236, 241, 127 A. L. R. 1120, a well-considered case, it is said:

“It must be conceded that there has been a very general concordance of judicial opinion in the United States that some sort of corroboration of a confession is necessary to' conviction, and this concordance has extended to federal courts as well as elsewhere.”

The United States Court of Appeals, D. C., holding:

“Corroboration of a confession in a criminal case is not sufficient if it tends merely to support confession without also embracing substantial evidence of the corpus delicti and the whole thereof, but it need not, independent of the confession, establish the corpus delicti beyond a reasonable doubt, if evidence and confession together are convincing beyond, a reasonable doubt of the commission of the crime and defendant’s connection therewith.”

The specific intent to' sell is an essential element of the offense charged and the only independent evidence offered by the state tending to show the unlawful intent was the testimony of the officers as to an extrajudicial confession made by the defendant following his arrest. There was no other evidence, either positive or presumptive, of the defendant’s intent to- violate any of the provisions of the pro hibitory law.

After a careful examination of the record, it is the opinion of the court that the proof of the corpus delicti in this case does not meet the requirements of law as established by the foregoing authorities. The judgment of the lower court herein is accordingly reversed and the case remanded with direction to dismiss.

JONES, J., concurs. BAREFOOT, J., dissents.


text:
    LESTER DAVIS v. STATE.
    No. A-9682.
    Dec. 11, 1940.
    (108 P. 2d 200.)

      Wayne E. Wheeling, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Lester Davis, was charged in the common pleas court of Oklahoma county with the offense of maintaining and operating a public nuisance, was tried, convicted, and sentenced to serve a term of 60 days in the county jail and pay a fine of $100, and has appealed to this court.

The defendant makes many assignments of error; but under the view which we take of this case, it is only necessary to consider one of said assignments. The defendant contends that the evidence of the state is wholly insufficient to- establish the charge set forth in the information.

The state offered as witnesses four officers, to wit: Bob Prince, W. I. Eads, Art Nemechek, and Clint Johnson.

Their testimony showed that the defendant operated a beer place and dance hall, known as the Silver Dollar Night Club. On October 28, 1938, Bob Prince, a deputy sheriff, in company with two women, went to this night club. No other customers were present. Prince put a nickel in the phonograph, and his party ordered three whisky sours from the waitress, which were served to them at a price of 25 cents for each drink. Prince tasted the whisky sour, but did not drink any of it. He was not asked whether it contained liquor.

About ten or1 fifteen minutes after Prince had entered the place, Officers Eads, Nemechek, and Johnson came in.

Eads testified the drinks on Prince’s table smelled like liquor; that they found no liquor at the bar, but did find some empty bottles that smelled as if they had contained liquor. Defendant Avas asleep in his living quarters. A bottle was found in a hole outside the building, which had the label of some kind of a foreign brand of liquor on it, and was partially filled with this liquid.

Officer Nemechek testified that they found no liquor at the bar, but that they found lemons, limes, sugar, and mixer, and that the bartender had poured out the alcohol or whisky or whatever it was that he had in the milk bottle. Nemechek poured the three whisky sours in a milk bottle which was offered in evidence. There were only one waitress, a man behind the bar tending the bar, a porter, and two or three customers at the club when they arrived. That he did not know whether the liquid which he poured into the milk bottle was a whisky sour or what it was, except that Bob Prince told him that he had ordered three whisky sours.

Officer Johnson testified that the bartender poured alcohol out of a milk bottle before he could get behind the bar. He identified the exhibits which were offered in evidence by the state, and which included a quart bottle about half full of alleged whisky sour, an empty whisky bottle, a gin bottle with approximately a Coca-Cola glass of liquid in it, a quarter of a pint of Tequila, and three glasses. The witness testified that none of the liquids had ever been analyzed; and when handed the so-called whisky sours, he testified that it was hard to say whether or not it had whisky in it, but that there was some trace of alcohol.

Each of the officers attempted to testify as to the bad reputation of the defendant’s place, but their testimony was based upon what the sheriff had told them immediately prior to the raid; and all testimony concerning the reputation of the defendant’s place was stricken from the consideration of the jury.

Two of the officers testified that the defendant, when being brought back to town in their custody after his arrest the night of the raid, in response to their question: “We didn’t think you were going to open up a drinking joint?” replied: “Well, I knew it was against the law, and I would get caught sooner or later.”

However, there is a conflict in the testimony of the officers on this question, as Officer Eads testified that he had a conversation with the defendant on the way to town, as follows:

“Q. Did you have a conversation relative to these drinks that had been served? A. Well, of course, he was asleep and didn’t know about that particular part and we talked to him on the way in and he said that he said that he sold drinks and we asked him ‘in violation of law’ and he said ‘No,’ and that is about all he said.”

The defendant testified in his own behalf that he did not make any statement to the officers that he was violating the law, and that he had only been operating the Silver Dollar Night Club about two months. That he did not permit his patrons to drink whisky there when he knew it; that drinks were not sold at his place which contained more than 3.2% alcohol; that the bottle of Tequila which the officers found came from his own room.

Walter Ainslie, who owned the phonograph at the night club, testified that he had occasion to' be at the place often, and that he had never seen intoxicating liquor sold or consumed there.

The charging part of the information reads as follows:

“Lester Davis, whose more full and correct name is to' your informant unknown, then and there being did then and there willfully, unlawfully and wrongfully commit the crime of maintaining and operating a public nuisance in the manner and form as follows to wit: That is to- say the said defendant in the county and state aforesaid, then and there being, did, then and there, willfully, unlawfully, and wrongfully maintain and operate a certain one story building commonly known as the Silver Dollar Night Club located at Northwest 59th and North May Avenue adjacent to Oklahoma City, said county and state, where intoxicating liquor, to wit: whisky was kept, bartered, sold and given away to divers persons and where divers persons unknown were permitted to congregate for the purpose of buying, receiving and drinking the said intoxicating liquor, all to the common nuisance of the public.”

This action is based upon that part of section 2616, O. S. 1931, 37 Okla. St. Ann. § 78, which declares:

“And all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

The sole question for us to determine is whether the state proved the necessary elements to sustain the charge.

In the case of Bunch v. State, 53 Okla. Cr. 430, 12 P. 2d 704, which case was followed by the opinion of this court in the case of Tarbutton v. State, 57 Okla. Cr. 442, 48 P. 2d 877, we held it would be necessary for the state, in order to sustain a charge against a defendant for maintaining or operating a public whisky nuisance, based upon the above portion of section 2616, O. S. 1931, 37 Okla. St. Ann. § 73, supra, to show:

1. a. Evidence of a positive character that the place was a place of public resort, or
b. That it contained bar fixtures (exclusive of apparatus for selling 3.2% beer) or other paraphernalia indicating an intention to sell or dispose of liquor, or
c. Proof that the place was frequented by persons who habitually violated the liquor and gambling laws of the state, or
d. Proof of sale or sales of intoxicating liquor at or near the time of the charge, in addition to
2. Proof of general reputation.

The state, in order to try to comply with these requisites, evidently relied upon the proof of sales of intoxicating liquor the night of the raid. There is no proof in the record that the alleged whisky sours which were sold were in fact intoxicating or that any of the other liquids which were found on that occasion were intoxicating.

This court will not take judicial notice of the intoxicating character of a beverage which is not made by any standard formula, is not generally offered for sale in this jurisdiction, and which has not become so well known as to' have a general reputation as to the intoxicating character. If the beverage is not what is generally known as one of the spirituous, vinous, or malt liquors, the state must introduce evidence either of its intoxicating effect, or that it contained more than 3.2% alcohol measured by weight. Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052.

A conviction cannot be sustained when the testimony of the witnesses for the state shows that they did not know whether the beverage was intoxicating. There must be affirmative proof establishing this fact. Horn v. State, 31 Okla. Cr. 284, 238 P. 233.

The state evidently relies upon the alleged confession of the defendant to the officers that he knew what he was doing was against the law as an admission of guilt on the part of the defendant that he was selling intoxicating liquor, which confession, together with the whisky sours which were sold, was sufficient to prove a sale of intoxicating liquor.

Our court in the case of Elijah Robinson v. State, 71 Okla. Cr. 75, 108 P. 2d 196, has ruled against this contention of the prosecution. In that case, we held that the corpus delicti could not be proven by extrajudicial confession of the defendant. Judge Doyle in that case reviews the authorities upon this point, and the same are overwhelmingly against the theory of the state.

This court has held in Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120, that the character of the place in a nuisance charge is an element of the offense committed, for it is an advertisement of the owner, and assists him in committing the offense, and is a source of revenue to him, and the offense is continuous; but where a person is charged with an offense which is based upon one specific transaction, the question of character does not become an element of the offense, and, therefore, the general reputation of the defendant in such a case is not admissible. This is the line of demarcation between the cases in which reputation is admissible and inadmissible.

In Frazier v. State, 31 Okla. Cr. 324, 239 P. 185, we held that where a defendant is charged with maintaining a place where liquor is kept with the intent to violate the prohibitory law, the general reputation of such place, as a place where intoxicating liquors are kept for sale, is admissible on the question of intent. See, also, Cameron v. State, 13 Okla. Cr. 692, 167 P. 339; Sibenaler v. State, 16 Okla. Cr. 576, 185 P. 448.

The officers testified that the reputation of the defendant’s place of business, as to being a place where people congregate for the purpose of buying, selling, and drinking intoxicating liquor was bad; but upon cross-examination the officers admitted that their information was based upon a statement made to them by the sheriff; and the court correctly struck all of their testimony regarding the reputation of the place from the consideration of the jury. No other effort wa,s made by the state to prove the general reputation, other than this testimony; and we accordingly find that there is no evidence before the jury of the general reputation of the premises.

In Jones v. State, 23 Okla. Cr. 9, 211 P. 1075, the judgment of the trial court was reversed because there was neither evidence that the place had a general reputation of being a place where intoxicating liquors were sold or kept for sale nor evidence that divers persons were permitted to congregate there for the purpose of drinking intoxicating liquors. The court stated that the proof of possession of a small quantity of liquor on one occasion in a public place was not sufficient to support a nuisance conviction in the absence of proof of the general reputation of the place as being one where intoxicating liquors were sold, or in the absence of proof of sales of such liquors having been made on the premises.

In Hurst v. State, 25 Okla. Cr. 102, 219 P. 151, 152, this court stated:

“In a number of cases it has been held by this court that, where a defendant is on trial for keeping a house of ill fame, the fame or reputation of the house becomes an issue, or, where one is charged with maintaining a place where intoxicating liquors are sold, amounting to a nuisance, the character of the house or place kept is an element of the offense.”

In the Barngrover v. State, 28 Okla. Cr. 22, 229 P. 301, 304, it was held that in a whisky nuisance charge evidence of general reputation of the place as being a place where liquor was kept or distributed in violation of the law was competent, but that evidence of such reputation ivas competent only to corroborate such direct testimony indicating that the place was a public nuisance as charged.

In Taylor v. State, 37 Okla. Cr. 23, 255 P. 714, 715, this court said:

“Prosecuting officers seem to be in confusion over the admissibility of this evidence. In a case Avhere defendant is charged with maintaining a place Avhere intoxicating liquors are dispensed, reputation of the place is admissible. * * * But where he is charged with having the possession of intoxicating liquors with intent to sell, the reputation of his home or premises is generally inadmissible, unless the place be one resorted to by the public; such evidence is then admissible on the question of intent.”

From the foregoing, it can be readily seen that the state has wholly failed to prove a sale of drinks which were in fact intoxicating; they have wholly failed to' prove the possession of liquors which were in fact intoxicating; and no general reputation of the place, as being a place where people congregate for the purpose of buying, selling, and drinking intoxicating liquors is shown.

In the cases of Bunch v. State, supra, and Tarbutton v. State, supra, this court had before it nuisance convictions wherein the actual evidence was much stronger than in the case at bar; however, in each of those cases the conviction was reversed because of the insufficiency of the evidence.

After a careful consideration of this case, we are of the opinion that the facts are wholly insufficient to support the charge, and that the case should be reversed with instructions to the trial court to discharge the defendant.

It is so ordered.

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


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    BILL DAVENPORT v. STATE.
    No. A-9743.
    Dec. 18, 1940.
    (108 P. 2d 549.)

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Phil E. Daugherty, Asst. Co'. Atty., of Oklahoma City, for the State.
    Glen O. Morris, of Oklahoma City, for defendant.
   BAREFOOT, J.

Defendant was tried in the court of common pleas of Oklahoma county upon a charge of unlawful possession of 220 pints of tax-paid whisky. A jury was waived, and he was tried before the court and found guilty, and his punishment assessed at a fine of $50 and JO days in jail.

The facts were, defendant on the 16th day of February, 1938, drove his automobile into a public parking place in Oklahoma City. Police officers saw him drive therein, and they knew the number of his car. He left the car and went across the street to a restaurant. The police officers went to the parking lot and looked through the glass windows and into' the car of the defendant and saw a great number of packages wrapped in brown paper, and which the officers recognized as being packages of whisky. Each package had the initials written thereon of the kind of liquor each contained. Those initials were “JEP,” which stood for “James E. Pepper,” “WF,” which stood for “Waterfill Frazier,” and “CK” which stood for “Cream of Kentucky,” all known to the officers as standard brands of whisky. The officers, after seeing the packages of whisky on the floor of the automobile, went to’ the restaurant and arrested defendant. He was brought to the parking lot where the car was located, and the car was searched in his presence and 220 pints of intoxicating liquor were found therein. Defendant admitted to the officers the possession of the whisky and that he had it for the purpose of sale.

For a reversal of this case it is contended that the search was made by the officers without a search warrant, and that the court erred in failing to sustain the motion to suppress the evidence upon which this conviction is based.

This court has recently had occasion to pass upon questions very similar to the one here involved which are decisive of this case. In the case of Hubert Nott v. State, 107 P. 2d 366, 70 Okla. Cr. 432, the facts were very similar to the case at bar. In that case the writer of this opinion based the decision upon the case of Matthews v. State, 67 Okla. Cr. 203; 93 P. 2d 549, 554. In that case the police officers of the city of Enid by custom checked all cars parked on the streets of Enid between the hours of 10 and 11 o’clock each night to see if they were locked or hadl articles of value that might be stolen. They encountered defendant’s car, which was locked. The officers saw a carton on the floor of the car labeled, “Paul Jones Whisky”, and two or three other cartons beside it and saw a bottle in the car. The car was taken to the police station, and by using a wire, the door was opened and they found four quarts containing liquor. The defendant after-wards appeared at the station disclaiming ownership of whisky, but gave the officers the keys to the car and they unlocked the trunk and found five or six bottles of “Crab Orchard Whisky”. A motion to suppress the evidence by reason of failure to have a. search warrant was overruled, and Presiding Judge Doyle, after review of cases with reference to- the right of officer to search an' automobile without having a search warrant, said:

“In the case at bar, the undisputed facts and circumstances as testified to by the officers, were sufficient to warrant them in believing that intoxicating liquor was in the cartons and bottle laying on the floor of the automobile, and this was a sufficient showing of an offense committed in the presence of the officers, and the defendant admitted, while their investigation was in progress, that the trunk on the car contained whisky that belonged to him. The admissions against interest made by the defendant were conclusive as to his guilt of the offense charged.
“In view of the time, place, and all the circumstances under which this seizure was made, we are of the opinion there was no' violation of the constitutional provision forbidding unreasonable searches and seizures.”

The facts in that case are very similar to the facts in the instant case. The officers in the discharge of their duty observed through the windows of the car the whisky lying, on the floor of the automobile. The car was taken to the police station and then opened and searched by the officers. Under these facts the judgment and sentence was upheld. ,See, also, Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Coburn v. State, 70 Okla. Cr......., 106 P. 2d 533; Arnold v. State, 70 Okla. Cr......., 105 P. 2d 556; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 609; Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603; Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900.

The above and many other cases were referred to in the Nott Case. It is unnecessary to' cite these decisions again. We are of the opinion that when an automobile is parked on the public streets or in a public parking place, the officers of the law, in the performance of their official duty, should have the right to keep their eyes open and their senses alert, in the detection of crime that may be committed in their presence, and when they observe the commission of a crime in their presence it is their duty to arrest the defendant committing the crime. The protection of the citizen from unlawful search and seizure in the exercise of his constitutional rights is proper, hut to' our mind a technical construction should not be placed on the provisions, of the Constitution and statutes in order to protect one who willfully and in defiance of law uses his property for the very purpose of evading the law.

The judgment of the court of common pleas of Oklahoma county is therefore affirmed.

DOYLE, P. J., and JONES, J., concur.


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    HOBSON G. DENMARK v. STATE.
    No. A-9735.
    Dec. 18, 1940.
    (108 P. 2d 550.)

      James W. Flinn, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   BAREFOOT, J.

Defendant was charged in the court of common pleas of Oklahoma county with the crime of illegal possession of intoxicating liquor, waived a jury, was tried, convicted and sentenced to pay a fine of $50 and serve a term of 30 days in jail.

No brief has been filed on behalf of the state in this case.

A motion to suppress the evidence was filed, and a hearing was had thereon. It is contended that the court erred in overruling the motion to suppress the evidence obtained by reason of the search warrant, and it is further contended that the court erred in failing to sustain the motion for a directed verdict filed in this case. Both of these contentions may be considered together.

The search warrant was what is commonly known as a “John Doe” search warrant. The evidence revealed that the officers making the search knew defendant and knew that it was his premises they intended to search, but they had the name “John Doe” placed therein so they could arrest whomsoever they might find in possession of intoxicating liquor. This is a very bad practice where the officer knows whose premises are to be searched. He should place the name of the party therein and the name “John Doe” or any other name should not be used. We are not saying’ that this, within itself, would be reversible error, for we have held in a number of cases that if the premises be particularly described, that it is not absolutely necessary to give the name of the party. State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Sherwood v. State, 48 Okla. Cr. 263, 290 P. 1112; Ross v. State, 38 Okla. Cr. 252, 260 P. 90; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185; Yeargain v. State, 69 Okla. Cr. 98, 101 P. 2d 273. But we do say that where the name of the party is known to the officer making the affidavit for the search warrant, that he should have placed therein the exact name of the party whose premises are to- he searched, and a proper description of the premises. This will safeguard the interest of the officer and protect the citizen in his constitutional and statutory rights.

The evidence on the motion to suppress revealed that there were located a number of buildings at the description named in the search warrant. On the front end of the lot was a paint shop at which some 12 or 15 parties worked. There was then a one-story apartment and back of this was a two'-story frame apartment. The defendant lived in one of these apartments, which he testified was No. Ill Northeast Tenth street, and not 113 Northeast Tenth street, as described in the search warrant. Other families, who' it was testified were relatives of defendant, lived in the other apartments. The ten pints of liquor involved was found partly in an old abandoned truck near one of the apartments and the balance was under a step behind some bricks leading to the second story of one of the apartments. These steps lead to a public toilet that was used by the men who worked in the paint shop on the front of the lot. There was no evidence, other than that it was near the premises occupied by defendant, that he was connected with the same, or that it was his or in his possession. Under these facts and circumstances, this judgment and sentence cannot he upheld against this defendant. Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106; Daniels v. State, 32 Okla. Cr. 426, 241 P. 836; Wiese v. State, 32 Okla. Cr. 203, 210 P. 1075; Mason v. State, 60 Okla. Cr. 392, 61 P. 2d 1238; Myer v. State, 31 Okla. Cr. 121, 216 P. 1105, 1106.

In the Myer Case the court said:

“This writ was intended to operate and did operate as a blanket search warrant covering the private places of abode of several people, and was therefore void. * * * Where there is no joint interest apparent, a showing of probable cause against one tenant confers no' right to search the home of another tenant in the same building.”

This is especially true where there is no evidence to show defendant had possession or control of the liquor found.

There was evidence that defendant’s place had a reputation for being a place where intoxicating liquors were sold and evidence that a telephone was installed, which the officers testified was for the purpose of taking orders for liquor to> be delivered. A boy was also found upon the premises whn told the officers he was the delivery boy. From the evidence it might be surmised that defendant was in the whisky business, but the judgment under this information and the search warrant issued in this case cannot be upheld. The defendant is entitled under the law to the same fair and impartial trial as any other citizen.

For the reasons above stated, the judgment and sentence of the court of common pleas of Oklahoma county is reversed and the defendant is ordered discharged.

DOYLE, P. J., and JONES, J., concur.