text:
    H. A. SADDLER v. STATE.
    No. A-5895.
    Opinion Filed April 9, 1927.
    (255 Pac. 719.)

      W. B. Toney, 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 informed against in the county court of Hughes county, charged with the crime of selling intoxicating liquor; the charging part of the information being as follows:

“That H. A. Saddler did, in Hughes county and the state of Oklahoma, on or about the 6th day of March, in the year of our Lord 1925, and anterior to the presentment hereof, commit the crime of selling intoxicating liquor in the manner and form as follows, to wit: That at the time and in the county and state aforesaid the said H. A. Saddler did unlawfully sell intoxicating liquor, to wit, Jamaica ginger.”

The defendant demurred to the information on the ground “that said information does not state facts sufficient to constitute a violation of the prohibitory laws of the state of Oklahoma,” which demurrer was by the court considered and overruled, and defendant reserved an exception to the ruling of the court. A jury was impaneled, and, after hearing the evidence and instructions of the court, returned a verdict of guilty, fixing the punishment of the defendant at a fine of $200 and costs, and confinement in the county jail for a period of 90 days.

Motion for a new trial was filed and overruled, and exceptions duly saved. To reverse this judgment, the defendant has appealed to this court, and has assigned six errors alleged to have been committed- by the court in the trial of the case. The first error alleged to have been committed by the court upon which the defendant relies for a reversal of this case is, “error of the court in overruling defendant’s demurrer to the information.”

The defendant urges that the language of the information is not sufficient to charge a violation of the prohibitory laws of the state, and, in order to properly determine the question as to whether or not the demurrer is well taken, it is deemed necessary to set out the provisions of the statute upon which this information is based. That part of section 7002, of the Comp. Sts. of Oklahoma 1921, which we deem necessary to quote here, is as follows:

“It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume.”

The charge in the information is the sale of intoxicating liquor, to wit, Jamaica ginger. The question then to be determined upon the demurrer of the defendant to the information, is under what statute is the information drawn. Jamaica ginger is not “a spirituous, vinous, fermented or malt liquor.”

The next question then is, Does it come under the provision, “or any imitation thereof, or substitute” for “spirituous, vinous, fermented or malt liquors,” or does it come under the provisions of the statute prohibiting the sale, barter, giving away, or otherwise furnishing any liquor or compound of any kind or description whatsoever, whether medicated or not, which contains as much as one-half of 1 per cent, of alcohol measured by volume.

Many of the state courts have had before them the question of the sale of Jamaica ginger as a violation of the prohibitory laws of the state, and the courts are not altogether in harmony as to what class to place Jamaica ginger in. Jamaica ginger is not per se an intoxicating liquor. The statute of Colorado (Laws 1915, p. 275, § 1) reads as follows:

“No person, association or corporation shall, within this state, manufacture for sale or gift any intoxicating liquors; and no person, association or corporation shall import into this state any intoxicating liquors for sale or gift; and no person, association or corporation shall, within this state, sell or keep for sale any intoxicating liquors or offer any intoxicating liquors for sale, barter or trade: Provided, however, that the handling of intoxicating liquors for medicinal or sacramental purposes may be done as in this act provided.”

Under this provision of the statute, in McLean v. People, 66 Colo. 486, 180 P. 676, the court, construing that statute based upon the testimony it had before it, held that Jamaica ginger came within the provision of the statute. In the opinion, the court says:

“As human knowledge grows with experience, the facts of which judicial notice will be taken are constantly increasing. It is a matter of common knowledge that alcohol is the intoxicating element of all intoxicating liquors.” That it also- becomes “a matter of common knowledge to all well-informed men that Jamaica ginger is an intoxicating liquor, and that the court might, from the facts in this case, well have so told the jury. * * * While it is true that Jamaica ginger is manufactured to be used as a medicine and not as a drink, still it is a familiar fact that it is often used as a substitute for whisky.”

In the Colorado case quoted above their statute is broad and covers all classes of intoxicants.

In Cooper v. State, 19 Ariz. 486, 172 P. 276, in Supreme Court of the state of Arizona, construing its prohibitory laws under the provision of its Constitution, art. 23, prohibiting the sale and distribution of intoxicants of any kind within the state, it contains no expression as to that prescribed to be sold for medicinal purposes, held:

“Constitution, art. 23, forbidding the sale and distribution of intoxicating liquors of any kind to- any person in the state, containing no exception as to that prescribed or sold for medicinal purposes, is not a regulatory provision, but one of suppression, and does not permit the sale of a compound of ardent spirits with other ingredients labeled ‘Jamaica ginger’ and sometimes used for medicinal purposes'.”

In the case of the City of Bowling Green v. McMullen, 134 Ky. 742, 122 S. W. 823, 26 L. R. A. (N. S.) 895, defendant McMullen was indicted charged with violating local option laws as found in section 2557, Ky. Statute, by selling five bottle next-to-beer, in Bowling Green, Ky., in violation of the provision of the said section of Kentucky statute “prohibiting the sale of spirituous, vinous or malt liquors.” The court, construing that provision of the statute, held that the statute was not “violated by sale of malt liquor containing! less than 2 per cent, of alcohol, and unintoxicating in the largest quantity in which it may be drunk.” In this case the court construed that provision of its prohibitory statute, holding “that malt liquor sold must be intoxicating in order to be a violation of its statute.”

The Supreme Court of Michigan, in construing its prohibitory statute (People v. Philpott, 219 Mich. 156, 188 N. W. 497), said:

“It being lawful to sell Jamaica ginger for culinary purposes and unlawful to sell it for beverage purposes, * * * in a general way, an intoxicating liquor is defined by the statutes of this state to be a liquor containing intoxicating properties which is capable of being used as a beverage or will produce intoxication. Now the term ‘beverage’ means a liquid for drinking; a name applied to various forms of drink. When the statute uses the term ‘beverage,’ it means something that can be drunk and will produce intoxication.”

It will thus be seen that the statute under consideration by the Supreme Court of Michigan was a statute which defined intoxicating liquors to be held and construed to include any vinous, malt, brewed, fermented, or spirituous liquors, and every other liquor or liquid containing intoxicating properties which is capable of being used as a beverage, or will produce intoxication, whether medicated or not, and all liquids, whether proprietary, patented, or not, which contain any alcohol and are capable of being used as a beverage, and all mixtures, compounds, or preparations, whether liquid or not, which, when mixed with water or otherwise, produce, by fermentation or otherwise, an intoxicating liquor.

The provision of the Michigan statute defines the various kinds of intoxicants that are capable of being used as a beverage. The information in this case limits and defines the intoxicating liquor that defendant is charged with selling to be Jamaica ginger, without any further allegation as to it containing more than one-half of 1 per cent, alcohol, or without stating that it is capable of being used as a beverage.

In Commonwealth v. Sookey, 236 Mass. 448, 128 N. E. 788, 19 A. L. R. 1230, held:

That defendant, “who sold in good faith to customers bottles of extract of Jamaica ginger containing 88 per cent, of alcohol for flavoring and medicinal purposes, and so labeled, did not violate Rev. Laws, c. 100, prohibiting the unlawful sale of intoxicating liquors; the definition of section 2 not including Jamaica ginger, unless shown to be a ‘beverage,’ a liquor for drinking.”

The court held the Supreme Judicial Court cannot take judicial notice that extract of Jamaica ginger is in fact an intoxicating beverage, and that it is generally sold and used as such.

We have at length referred to the statutes of other states on the question as to whether or not Jamaica ginger is such an intoxicant as the court may take judicial notice. In each of the cases referred to the statute defined what was intoxicating liquor, and some of the states went further and made it a violation to sell Jamaica ginger when sold as a beverage.

The statute of Oklahoma, under which the defendant was informed against, makes no mention of Jamaica ginger, nor does it define what shall be taken and considered as an intoxicant. Our courts have held that whisky, ale, and beer should be taken and considered as intoxicating, but in all other preparations and compounds the statute requires that it shall either “contain” more than “one-half of one per cent, of alcohol, measured by volume,” or that it shall be a liquid “capable of being used as a beverage.”

This court does not seem to have passed upon the question raised by the demurrer to this information. In the case of Levi Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052, the information charged “intoxicating liquors, to wit, whisky, beer, choctaw beer, and wine were bartered, sold, and given away,” and also alleged that the said choctaw beer contained more than one-half of 1 per cent, of alcohol measured by volume; the court, after hearing the proof, held it would not take judicial notice of the intoxicating character of a beverage which was not made by any standard formula.

In Dutton v. State, 21 Okla. Cr. 186, 205 P. 940, the defendant was charged with selling a certain compound labeled “Hostetter’s Celebrated Bitters,” alleged to contain more than one-half of 1 per cent, of alcohol, capable of being used as a beverage. The court reversed the case for the reason that the trial court refused . to permit the defendant to show w.hat he had sold was a compound, and that’ he had sold it in good faith and not for beverage purposes.

The information in this case fails to charge the defendant in the language of the statute, or in words equivalent, of an offense under our statute, and the demurrer to the information was well taken and should have been sustained.

There are other errors assigned and argued in this case, but in the view we take of this record we do not deem it necessary to consider them.

The case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    BARNES TAYLOR v. STATE.
    No. A-5039.
    Opinion Filed April 9, 1927.
    (255 Pac. 158.)

      See, also, 36 Okla. Cr. 367, 254 P. 758.
    Cress & Tebbe, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Barnes Taylor, hereinafter called the defendant, was charged with contempt of court in Noble county, by an application filed on the 18th day of August, 1923, asking for a citation to issue commanding the defendant to show cause why he should not be fined for contempt of court. Citation was issued and served on defendant, the defendant appeared and filed his motion to quash the application, and the motion was overruled, and defendant reserved an exception. The defendant also filed a demurrer, which demurrer was by the court overruled, and defendant excepted.

The application charged:

“That on the 22d day of December, 1922, the district court granted a temporary injunction, enjoining and restraining the said defendant, Barnes Taylor, his agents, employees, servants, successors, and assigns, and all other persons from keeping, maintaining, carrying on, and operating, or permitting to be kept, maintained, carried on, or operated, at, in, upon, or about a certain building and premises in the city of Perry, Okla.; and charging that, on the 26th day of December 1922, the said defendant broke open and entered said building and premises, and have since maintained, carried on, and operated, at, in, upon, and about the said building and premises, and has had In and upon said premises choc beer and other intoxicating liquor, or imitations, or substitutes therefor, with the unlawful intention and for the purpose of selling, bartering, giving away, and otherwise furnishing the same to other persons, contrary to the prohibitory laws of the state, and in violation of said injunction.”

The defendant entered his plea of not guilty. Defendant was tried and jury returned a verdict finding defendant guilty. Motion for a new trial was filed and overruled, and defendant excepted; also motion in arrest of judgment was filed and overruled, and exceptions duly saved. On the 29th day of October, 1923, the court, upon the verdict of the jury, sentenced the defendant to pay a fine of $500 and to be imprisoned in the county jail of Noble county, at hard labor for a period of 6 months.

To reverse this judgment, this defendant has appealed to this court, and has assigned twenty-one errors alleged to have been committed by the trial court. The state called several witnesses, who attempted to show that the defendant in this case had violated the terms of the injunction by selling, bartering, giving away, or furnishing of the things prohibited to be kept on the premises described in the restraining order and mentioned in the application for a rule on the defendant to show cause why he should not be guilty of contempt.

The record discloses that the premises and building covered by the injunction was the home of the defendant, Barnes Taylor. The state urges with a great deal of force the fact that, after the restraining order was granted, Barnes Taylor returned to his home and entered the building and slept in the building at nights; that his action in so doing was a willful violation of the restraining order. The state called several witnesses and attempted to show defendant had willfully and intentionally violated the terms of the injunction by permitting people to congregate in and around the premises, and by permitting choc beer, whisky and other drinks to be sold on the premises. Neither of the witnesses for the state attempted to say that the defendant at any time after the granting of the injunction sold any choc beer or anything else to the witness. A number of the witnesses testified to people going back and forth on the premises where the defendant’s home had been.

Clyde Smith, a witness called by the state, testified that he was selling watermelons, and that he went by the premises, and that he bought a half pint of corn whisky from a negro woman; that he went into the woodshed with her, and that some improper suggestions were made, and that he went away and found that, after he had been out with this negro woman, he had lost $19; that he had been associating with this negro woman and lost his money, and it would seem from the record that he had become angered at her, and was ready to swear to most anything that was necessary to try to convict this defendant.

Other state witnesses claim to have bought some choc beer from a negro boy who was around the premises. The only evidence introduced by the state tending to show that the defendant had any knowledge that anything was being sold in the neighborhood of the place where he had been enjoined from permitting the manufacturing, bartering, or selling of intoxicants or substitutes therefor was the statement that the defendant came to the house after two of the witnesses claim they had bought some choc beer, and was drinking the same when the defendant came.

The testimony of the state witnesses shows that defendant was advised if he did not permit any law violation that it would be all right for him to sleep in the house. There is no positive testimony in the record to show that the defendant had knowingly or willfully violated the terms of the restraining order, or knowingly permitted others to violate it. The testimony on behalf of the defendant is that at no time after the restraining order was issued were there any sales of choc beer, whisky, or any other kind of drinks, in violation of the prohibition laws of the state, sold, or permitted to be sold, by the defendant, in, or about, or on the premises described in the restraining order.

The testimony on behalf of the defendant shows that he had slept in the house. He was advised by the deputy sheriff and county attorney, after a consultation, that it would be all right for him to do so. The restraining order in this case was a drastic measure and required the defendant to remain from his own home. The defendant says that only two of the five doors of the house were fastened by the officers, and that the others were left open; that he went back and forth to his home and slept in a room; that he so advised the deputy sheriff and county attorney, and they told him it would be all right, provided he did not violate the prohibition laws.

Defendant called several other witnesses, each of whom testified they had not seen any violation of the restraining order by selling, bartering, or giving away of any whisky, or any other kind of intoxicating drinks.

The record in this case is voluminous, and many questions are raised, and many assignments of errors urged by the defendant as to why this case should be reversed. An examination of the record shows that many of the objections by the defendant in the trial court were well taken, but in the view we take of this case it is only necessary to consider the nineteenth and twenty-first assignments of errors, which are as follows:

“(19) That the verdict is contrary to the evidence.”
“(21) That the court erred-in refusing to direct a verdict of acquittal."

The assignments hereinabove set out relate to the sufficiency of the testimony in this case to warrant the jury in rendering a verdict of conviction against the defendant. It is the duty of all parties to obey and respect an order of the court, and, when the same is knowingly and willfully violated, it is the duty of the court, in order to protect its dignity, to cause any violator to be brought into court to show cause why he should not be adjudged in contempt, but, in so doing, before he should be convicted and sentence imposed upon him, there should be competent testimony sufficient to warrant a conviction. The record in this case has been carefully briefed by both sides. A careful examination of the evidence in this case only tends to create suspicion or a possibility that the defendant may be guilty of contempt, and a verdict based upon a possibility and supposition is not justified. Where there is evidence to support a verdict, this court will not pass upon its weight and sufficiency in order to determine whether the defendant is guilty as charged, but we do hold there must be evidence tending to support the essential allegations of the charge.

In this case there is no evidence to show that the defendant himself willfully and knowingly violated the terms of the restraining order, nor is there any evidence whatsoever that he knowingly permitted others to violate the terms of the restraining order, nor is there any evidence tending to show that he had any knowledge of the violation of the restraining order. The evidence is insufficient to sustain the verdict and judgment.

The judgment is reversed and remanded.

DOYLE, P. J., not participating.

EDWARDS, J., concurs.


author: EDWARDS, J.

text:
    FRANK SCHMIDT v. OKLAHOMA CITY
    No. A-5131.
    Opinion Filed April 16, 1927.
    (255 Pac. 160.)
    Morris & Tant, for plaintiff in error.
    J. Frank Martin, Municipal Counselor, and R. E. Wood, Asst. Municipal Counselor, for defendant in error.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of selling milk without a permit and sentenced to pay a fine of $10.

This is a prosecution for the violation of a city ordinance; it originated in the municipal court of Oklahoma City, and from a conviction there defendant appealed to the county court. The complaint charges that defendant did unlawfully, and contrary to the ordinances of the city, sell milk without a permit.

The defendant first contends that the ordinance, under which he was prosecuted, does not provide for any permit, but does require .the payment of a license fee, and that the complaint is insufficient. We take judicial knowledge of the city ordinances. Section 4 of Ordinance No. 1953, under which the prosecution was had, specifically provides for a permit to be issued by the city board of health as a condition of the sale of milk within the city.

It is next urged that the ordinance under which the defendant is prosecuted provides for a penalty of more than $20 and for imprisonment in the city jail, and that such ordinance does not provide for a trial by jury and is invalid, under the holding of this court in Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097, and Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233, and other cases cited. Ordinance No. 1882, enacted by the city subsequent to the decision of this court in Ex parte Monroe, supra, amended all ordinances to provide for a fine not to exceed $19 in any case. The ordinance, under which the prosecution is had, is not invalid. The offenses defined by such ordinances are of the class or grade known as petty offenses, and a jury for the trial of such cases in the court of original jurisdiction is not required by the Constitution or laws.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    FRED McDONALD v. STATE.
    No. A-5733.
    Opinion Filed April 16, 1927.
    (255 Pac. 160.)

      H. T. Church, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of having the unlawful possession of Choctaw beer containing more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage.

At the time charged, two officers saw some persons in an automobile drive up to the residence of defendant and go into the house. Soon they saw defendant come out of the house with a pitcher, and go some 50 or 75 yards away, across an alley, to a small house, and then return with a pitcher of liquid. They followed him into the house, arrested defendant, and seized the pitcher of liquid. None of the parties tasted the liquid, nor was any analysis made to ascertain its alcoholic content. One of the officers, C. O. Briggs, testified:

“ * * * Q. You didn’t drink any of it? A. No, sir.
“Q. You don’t know whether it was Choc beer or not, do you? A. Smelled and looked like Choc beer.
“Q. You are basing your testimony that it was Choc beer on the looks and odor? A. Yes, sir.
“Q. And that alone? A. Yes, sir. * * *
“Q. Do you know how old it was, or the condition of it? A. No. * * *
“Q. The intoxicating quality of Choctaw beer depends on the ingredients that go into it and the age of it, does it not? A. I think so. * * *
“Q. From yóur experience as an officer, will you state to the court whether or not it was the finished product? A. It was, in my estimation.
“Q. From your sense of smell? A. Yes, sir.
“Q. Would you say that was intoxicating? A. I would say it was.
“Q. From your observation and your experience in handling Choc taken under these circumstances, what would you say with reference to it's alcoholic .content? * * * A. I think it is beyond 6 per cent.; * * * may be 9. It was pretty high power stuff looked as though.
“Q. You say it contained 6 per cent, alcohol just from the looks? A. Well, from the appearance of it; yes, sir. * * *
“Q. Never attempted to analyze this? A. Never analyzed any in my life; never taken a drink of Choc in my life. * * *”

The witness Davis, the only other witness for the state, testified:

“* * * Now, are you familiar with Choctaw beer in its finished form? * * * A. Yes, sir.
“Q. Will you state to the court whether or not this that you found there in that granite pitcher was the finished form? A. Yes.
“Q. From your experience as an officer in handling and dealing with Choctaw beer, will you say whether or not this Choctaw beer that you saw there was intoxicating? A. Yes, sir. * * *
“Q. Have you had frequent occasions to handle this, Mr. Davis, Choctaw beer? A. Yes, sir. * * *
“Q. From your experience as an officer in handling Choctaw beer, and your experience with the analyzed product heretofore, what would you state as to your best judgment as to the alcoholic content of this particular beer? A. 4 or 5 per cent. * * *
“Q. You tasted this particular article that you got over there from Fred? A. No; I never tasted any of that.
“Q. Never tasted it at all. Then you are just giving your opinion as to what that article was, aren’t you? A. This was just like the Choc I have drank.
“Q. That is, looked like it? A. And smelled like it.
“Q. Smelled like it. Then you are basing your testimony altogether on the looks and smell? A. Absolutely. * * *”

It is common knowledge that the product generally called “Choc” or Choctaw beer is made in various ways and of various ingredients. It may or may not be capable of being used as a beverage, and may or may not have as much as one-half of 1 per cent, of alcohol, measured by volume, depending on the manner of its making, the ingredients used, and the degree, if any, of fermentation. The courts do not take judicial knowledge that it is intoxicating. Skelton v. State, 31 Okla. Cr. 343, 239 P. 189; Rambo v. State, 31 Okla. Cr. 214, 238 P. 869.

At most, the evidence in the record before us gives only the opinions of the witnesses for the state, based on the appearance and smell of the liquid seized, that it is intoxicating or contained as much as one-half of 1 per cent, of alcohol, measured by volume. This is not sufficient.

Other assignments of error are presented, but it is not necessary to consider them.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    GEORGE EAST et al. v. STATE.
    No. A-5743.
    Opinion Filed April 16, 1927.
    (255 Pac. 157.)
    W. W. Holloway, for plaintiffs in error.
    Edwn Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Okmulgee county on a charge of open and notorious adultery, and were each sentenced to pay a fine of $250.

The record discloses that the defendant George East had been divorced from a former wife, and that the defendant Myrtle East (formerly Myrtle Ross) had been divorced from a former husband, and at the time of the trial had intermarried, and were living together as husband and wife. Prior to their marriage, and within the period of six months within which divorced persons are forbidden to marry, they were guilty of the offense charged in the information in this case. During the course of the trial every rule of evidence involved, as well as all the rules for orderly procedure in the trial of a case, were violated; the honors between the assistant county attorney, who conducted the case for the state, counsel for defendant, and the trial judge being about equal. The evidence in the record, including that of defendants, however, clearly establishes their guilt, and the numerous errors have not deprived defendants of any substantial right, nor caused any miscarriage of justice, and do not require a reversal. Section 2822, Comp. Stat. 1921.

Since, however, the defendants have married, and were husband and wife at the time of the trial, substantial justice will be done by reducing the fine of the defendant George East to the sum of $100 and the fine of the defendant Myrtle East to the sum of $50, and, as so modified, the judgment is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    L. J. TAYLOR et al. v. STATE.
    No. A-5748.
    Opinion Filed April 16, 1927.
    (255 Pac. 157.)
    Tom W. Cheatwood, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Cleveland county on a charge of transporting whisky, and the defendants L. J. Taylor and John Helms were each sentenced to pay a fine of $300 and to serve four months in the county jail, and the defendant S. L. Russell was sentenced to pay a fine of $250 and to serve three months in the county jail.

At the time charged in the information certain officers intercepted the defendants in an automobile upon the public highway and attempted to stop them. When they did not promptly stop, they fired into the car in which they were driving and then arrested defendants and searched the car and found in it a jug of whisky. They had no' warrant for the arrest of defendants or any search warrant, and the apprehension and search was based on suspicion only. This was in violation of the constitutional and statutory rights of defendants and was seasonably objected to. The conviction cannot be sustained.

The case is reversed and remanded, with instructions to dismiss.


text:
    GEORGE DAVIS v. STATE.
    No. A-5758.
    Opinion Filed April 16, 1927.
    (255 Pac. 156.)

      F. M. Walker and C. T. Lane, for plaintiff in error.
    Edwin Dabney, Atty Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of maintaining a place where intoxicating liquor was sold, and sentenced to pay a fine of $50 and serve 30 days in the county jail.

The judgment in this case was rendered on April 21, 1925. A case-made was filed in this court on August 19', 1925, and a petition in error filed on August 20, 1925. The extreme limit in which an appeal for a misdemeanor can be filed in this court is 120 days. Section 2808, Comp. Stat. 1921. An appeal is lodged in this court by filing a case-made and petition in error, or, if the appeal be by transcript, by transcript and petition in error. A case-made or transcript, unless accompanied by a petition in error, does not present any question for this court and is ineffectual as an appeal. Edwards v. State, 2 Okla. Cr. 715, 103 P. 1072; Wynne v. State, 8 Okla. Cr. 52, 126 P. 266; Roberts v. State, 10 Okla. Cr. 312, 136 P. 201; Fuhr v. State, 31 Okla. Cr. 409, 239 P. 679, and authorities cited.

The filing of a case-made on August 19, without a petition in error having been filed, did not constitute an appeal, and the filing of a petition in error on August 20 was on the one hundred and twenty-first day, and beyond the time allowed by law for appeals.

This court does not acquire jurisdiction, and the attempted appeal is dismissed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    BUDDIE BROWN et al. v. STATE.
    No. A-5773.
    Opinion Filed April 23, 1927.
    (255 Pac. 587.)
    E. F. Maley, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Okmulgee county on a charge of having the unlawful possession of intoxicating liquor, and the defendant Buddie Brown was sentenced to serve 30 days in the county jail and to pay a fine of $50, and the defendant Maude Brown was sentenced to serve 60 days in the county jail and to pay a fine of $150.

The material evidence was procured by certain officers under a search warrant. The search warrant' was based upon an affidavit fatally defective in several particulars: First, it is made upon information and belief; second, it alleges it to be the home of defendant Buddie Brown and does not allege that it was a place of public resort or a place of storage, as required by law; third, it does not particularly describe the place to be searched, but describes it as:

“* * * Three miles southwest of Mounds, used and occupied by-as a-, located on the-in the city of-, Okmulgee county. * * *”

The search warrant based upon this affidavit is a nullity and the evidence obtained thereunder inadmissible where timely objection is made.

In addition to this the court permitted evidence of the reputation of the residence to be admitted. This is in violation of the repeated holdings of this court in cases where the charge is unlawful possession. The conviction cannot stand.

The case is reversed and remanded, with instructions to dismiss.


text:
    FRED SCHWARTZ et al. v. STATE.
    No. A-5777.
    Opinion Filed April 23, 1927.
    (255 Pac. 588.)
    W. R. Withington, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on May 4, 1925, on a charge of maintaining a place where intoxicating liquors were kept for the purpose of violating the prohibitory liquor law. The defendant Flahart was sentenced to pay a fine of $100 and to serve 30 days in the county jail, and defendant Schwartz was sentenced to pay a fine of $50 and to serve 30 days in the county jail. The appeal was lodged in this court August 31, 1925. No briefs in support of the appeal have been filed.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is submitted, and no appearance for' oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent, and the evidence is sufficient, the case will be affirmed.

The evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


author: EDW ARDS, J.

text:
    INEZ TAYLOR et al. v. STATE.
    No. A-5756.
    Opinion Filed April 23, 1927.
    (255 Pac. 588.)

      Geo. H. Giddings, Sr., for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDW ARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county on a charge of unlawfully transporting intoxicating liquor, and each sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail.

Briefly stated, the record discloses that at the time charged defendants Inez Taylor and Will Taylor lived at Chickasha. These two defendants, in a Buick automobile owned by Inez Taylor, with two other persons, all negroes, drove from Chickasha to El Reno and the two persons with them left the car, and they were joined by two others, one of them “Pappy” Stevenson, who was jointly charged. They then drove to the aviation field. According to Stevenson, who became a witness .for the state, they had a fruit jar containing some whisky in the car, and all of them, drank of it. When they got to the aviation field, they were quarreling and were backing their car backward and forward and were arrested by an officer who took them to the police station. While this officer was on the running board, Stevenson unscrewed the top of the fruit jar, kicked it over, and the whisky ran over a sweater, and at the police station the Officer Gray squeezed a small quan-. tity out of the sweater. On the way to the police station two of the other negroes in the car got into a drunken altercation, and one shot the other in the back of the head. These two defendants got out of the car and left, but later returned to the police station to reclaim the car and were arrested on the charge of being drunk, and later this charge was filed.

Complaint is made that the information is insufficient because it fails to allege from what point the liquor was transported to the place where it was found, citing De Graff v. State, 2 Okla. Cr. 519, 103 P. 538; Sturgis v. State, 2 Okla. Cr. 326, 190 P. 57: Brown v. State, 4 Okla. Cr. 13, 115 P. 603.

The information upon this point alleges that defendants transported intoxicating liquor:

“ * * * From a point unknown to a point in Canadian county, state of Oklahoma, described as follows, to wit, to a point- on the postal highway near the city of El Reno, just opposite the colored cemetery, to the east of same on that portion of the said highway, between sections 15 and 16, in township 12, range 7 W. * * *99

Where the place from which the liquor is transported is to the county attorney unknown, he may so allege the place of origin as unknown, and the allegation will be sufficient.

It is next contended that the court erred in admitting evidence of the difficulty in the car shortly after the defendants were arrested, and while on their way to the police station. This evidence was later stricken out by the court, and the jury admonished to disregard it. This might be competent as showing the party to be intoxicated and that the arrest was legal, but, whether competent or not, it is not prejudicial since the defendants received only the minimum punishment for the offense charged.

It is also argued that the witness Anderson is an accomplice, and that there is not sufficient corroboration of his testimony. According to the testimony of this witness, defendants and their companions had this whisky in the automobile at the time he joined the party, and he had no part in the transporting. According to the testimony of defendant Will Taylor, the whisky was procured by witness Stevenson and brought to the car when the arrest was made, and defendants did not transport it. The defendant Inez Taylor did not testify. '¡Neither under the evidence of the witness Stevenson nor defendant Will Taylor was the witness Stevenson an accomplice of defendants in the transporting. The evidence presented a question of fact for the jury. If the witness Anderson were an accomplice, there was sufficient independent evidence tending to connect defendants with the offense charged. We see no reason to disturb the verdict.

The case is affirmed.

DOYLE, P. J., and DAVfENPORT, J., concur.


text:
    SAM ALLEN v. STATE.
    No. A-5804.
    Opinion Filed April 30, 1927.
    (255 Pac. 589.)
    J. R. Charlton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

This appeal was filed September 10, 1925, and no briefs have been filed in support of the appeal.

The plaintiff in error, hereinafter called the defendant, was charged with the crime of unlawful possession of narcotics, and convicted, and his punishment fixed at one year in the penitentiary at McAlester.

Under the rule of this court, where an appeal is not supported by briefs, it is assumed that the appeal has been abandoned or is without merit. The court has examined the record and finds that the information sufficiently charges the offense; that the evidence supports the charge; that the instructions of the court were reasonably fair to the defendant; that there were no errors in the introduction of the testimony prejudicial to the rights of defendant; and that the defendant was accorded a fair and impartial trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    JERRY FONVILLE v. STATE.
    No. A-5780.
    Opinion Filed April 23, 1927.
    (255 Pac. 591.)
    Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, 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 sentenced to pay a fine of $50, and to be confined in the county jail for a period of 30 days.

In February, 1925, certain officers, with a search warrant, searched the residence and premises of defendant, and at the same time searched some premises adjoining. Th record discloses that, at the ¡time charged, certain officers with a search warrant went to the residence of defendant, and made a search. On the back porch they found a glass jug containing a small quantity of whisky, and found a tow sack containing bottles, and in the house found other bottles, and in the sink found some clippings of Bermuda grass. On the back part of the lot, behind the garage, they found a cache of whisky. In the house were four men, three soldiers from Fort Sill, in uniform, and one in civilian clothes, and about the same time two other men came in. There was evidence that the reputation of the premises as a place where intoxicating liquor was kept, sold, and dispensed was bad. There was also evidence that numerous cars would drive up to this place, persons get out and go to the door; that some woman would open the door, and the persons from the cars would go into' the house, and immediately a man would go out of the house to the rear of the garage, get something, and return to the house, and then the persons in the house would return to the car and leave, and that this continued for some days prior to the search. There was also evidence that the whisky found at the rear of the garage had the mowings of Bermuda grass around it,' and that there was a trail leading from the house to the place where the whisky was found. This evidence is largely circumstantial, but we think the circumstances were sufficient to warrant the jury in finding the defendant guilty of maintaining a nuisance as charged.

It is contended that the court erred in excluding evidence that other persons during the same month, living in close proximity, were handling intoxicating liquor. Defendant lived on Sixteenth street, the place of the offense charged, and where the search was made. Defendant offered to prove that one Vici Hart, living on Fourth, Fifth, or Sixth Street, was raided about the 1st of March, and that at the time she was operating a still, and that, some 15 days after the raid in this case, some officers raided a place in the same block, and found a still, some mash, and other paraphernalia. The offer of proof is as follows:

“ * * * You were with the officers on the 1st of March when you made a raid on the place of Vici Hart, when she lived about Fourth, Fifth, or Sixth street, Oklahoma City? * * * Mr. Tant: We wish to prove that within several days, 10 to 15 days after the liquor which has been introduced in evidence as State’s Exhibit A was found back of the garage of the defendants’, that several officers, one of whom was this witness, Ray Long, raided a place in the same block on the same side of the street operated by one V¡ici Hart, and they found there a still, mash, and other paraphernalia for the manufacture of corn liquor. * * *”

In certain quarters of Oklahoma City, as well as in most other cities of its size, there are violations of the prohibitory liquor laws. Proof that some other person, ten blocks away, about this time was violating the liquor laws, would not cast any light on the question of the guilt or innocence of defendant. The guilt or innocence of such other persons is a collateral issue, which cannot be injected into the trial, unless the immediate surroundings and circumstances tend to connect. such other person with the commission of the particular offense for which defendant is on trial. This, we think, is not made to appear by the offer of proof tendered, and its exclusion by the court was proper.

It is next argued that the court, erred in admitting incompetent evidence. This assignment is directed to the testimony that cars came to the place of residence of defendant under the circumstances recited. These circumstances tended to prove that intoxicating liquors were being dispensed at the place, and directly tended to prove the defendant guilty of maintaining a nuisance. It was competent for this purpose.

Complaint is also made of the action of the assistant county attorney in asking questions on cross-examination in reference to the sale of whisky at these premists previous to the time of' the search. In the argument over the objection to some of these questions, the assistant county attorney made statements which had better been left unsaid, but they were stricken out by the court, and the jury instructed to disregard them. If it appeared that these statements were materially prejudicial, we should reverse the case, but in the light of the entire record there appears to be no miscarriage of justice, and the punishment assessed is the minimum.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    E. G. HALL v. STATE.
    No. A-5285.
    Opinion Filed Nov. 8, 1926.
    Rehearing Denied April 30, 1927.
    (255 Pac. 716.)

      Sigler & Jackson and Mathers & Coaldey, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of shooting with intent to kill and his punishment fixed at a term of 18 months in the state penitentiary.

It appears from the record that defendant and one B. J. Johnson were neighbors of several years’ standing, and some time prior to the commission of the offense charged family difficulties had occurred, which resulted in a separation of Johnson and his wife and defendant and his wife, and later the marriage of defendant and Johnson’s former wife. In the divorce case arising out of this relation between Johnson and his wife, the children of his wife were awarded to Johnson. After the marriage between defendant and the ex-wife of Johnson a demand for the custody of these children had been made on Johnson, and a short time before this difficulty Johnson had shot defendant. He was later tried and acquitted. On two different occasions defendant and Johnson had a difficulty, the last about ten days prior to the offense charged.- About two months before the daté of the crime charged, defendant’s wife, the ex-wife of Johnson, went to the home of Johnson and demanded the children, and stated that if Johnson refused she and defendant would kill him. On the date of the offense charged, Johnson went to the village of Homa, about 1% miles from his home, passing along a roadway on the east line of defendant’s land. On his return, when about 150 yards from his home, defendant, concealéd in his field about 25 yards from the road, shot Johnson with a- Winchester rifle, the bullet striking the back part of the shoulder and coming out at the opposite shoulder. The shot knocked Johnson to the ground, and upon arising some 12 or 15 shots were exchanged between him and defendant. Only the first shot fired took effect, as stated. Several witnesses testified to seeing defendant with a gun leaving the scene immediately after the shooting, and some of them saw him fire the shots. After the shooting he went to his house, and one of the witnesses saw him in a wagon which was driven away. An examination of the ground at the scene also disclosed that defendant had crawled from a haystack on his premises some 300 or more yards to the point where the shooting took place.

The defense was an alibi, defendant offering evidence that he was not at the place of the shooting but at the home of his parents several miles away, not yet recovered from the wound inflicted by Johnson about ten days before. This alibi was supported by several witnesses, relatives of defendant.

Several assignments of error are argued in the briefs. It is first insisted that the court erred in admitting testimony in relation to the domestic trouble between Johnson and his wife, and between defendant and the prosecuting witness. It appears that the state introduced evidence of the previous relation of defendant with the wife of Johnson, and of threats made by Johnson’s ex-wife while the wife of defendant in reference to the children, on the theory that it tended to prove motive for the shooting. Defendant in his brief contends that there is no controversy of the fact that defendant did the shooting, and therefore the evidence was improper and prejudicial. This is not borne out by the record. Defendant did not admit the shooting and seek to justify it, but denied that he shot prosecuting witness and offered considerable evidence in support of his contention. The court and counsel for the state could not ignore the testimony of defendant and his witnesses that he did not participate in the shooting and assume the truth of the testimony of the state’s witnesses that defendant did the shooting. Whether or not the shooting was done by the defendant was a question of fact for the jury. That being a controverted question, the evidence, within proper limits, of the relations between defendant and the wife of the prosecuting witness and the difficulty growing out of that relation, was a proper subject of inquiry, as tending to prove motive. Burns v. State, 8 Okla. Cr. 554, 129 P. 657; Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, 101 P. 111; Irvin v. State, 11 Okla. Cr. 301, 146 P. 453; Roe v. State, 17 Okla. Cr. 587, 191 P. 1048.

In the latter case it was held:

“Where one of the defenses interposed is that defendant did not commit the crime, evidence tending to establish a motive on the part of the defendant to commit the crime is properly admitted.”

Under this assignment it is further argued that the court erred in permitting the prosecuting witness to testify that his ex-wife, Hall’s wife, sometime before made threats to kill him if the custody of the children was not given them. This line of the evidence was incompetent unless there was some proof of agency of defendant’s wife, Johnson’s ex-wife, in making the demand for the custody. This evidence, however, was met by defendant and gone into much more fully. The grounds set up in the divorce proceedings between Johnson and his wife were briefly testified to by witnesses for the state. The defendant then went into the matter at considerable length. His wife on her examination in chief testified that prosecuting witness was cruel to her, whipped and beat her, required her to work when she was not able, had threatened to kill both her and defendant, and after the divorce had come to her place and beaten her and had taken the children away, and further testified to the prior difficulty between prosecuting witness and her husband, the defendant, in which defendant was shot. The following is an excerpt from her testimony.

“Q. Tell the jury the cause of your separation. A.- He was so cruel to me that I could not live with him.
“Q. Tell some of the things he would do. A. He would fight me and whip me and beat me and make me work when I was’nt able to work, and make me drag a sack and pick cotton. * * *
“Q. Did Johnson file suit for divorce against you? A. Yes, sir.
“Q. Did you hire a lawyer to represent you? A. Yes, sir.
“Q. To keep him from getting a divorce?, A. I hired a lawyer, and Johnson threatened .to kill me if I fought the suit and told me to drop it. He had made threats to kill me and Mr. Hall both. * * *
“Q. You and Mr. Hall afterwards married? A. Yes, sir.
“Q. And you were living together at the time he was shot and at the time this other shooting took place? A. Yes, sir.
“Q. A few days before this divorce suit was filed, did Johnson come to your house? A. Yes, sir; two or three nights before.
“Q. What did he do? A. He drew a gun on me and threatened to kill me if I fought the lawsuit, and made me get down on my knees and promise I wouldn’t. ‡ Í ‡
“Q. Do you remember about the time that Mr. Hall was shot? A. Yes, sir.
“Q. Do you know what he was doing that day? A. Yes, sir.
“Q. What was he doing? A. He wias drilling wheat.
“Q. Where? A. On his home place.
“Q. Attending to his own business. A. Yes, sir.
“Q. Who shot him? A. Johnson.
“Q. Had he ever in any way interfered with Johnson in anything at that time? A. No. sir. * * *”

This evidence for defendant goes far to mitigate the the error in the first instance as tending to prove that the prosecuting witness was brutal and the aggressor in the prior difficulty, and to prejudice the jury against the prosecution. We think defendant had decidedly the better of this issue and was not injured. Rhea v. Territory, 3 Okla. Cr. 230, 105 P. 314.

It is also insisted that the court was unfair in his rulings and was a partisan of the state and several times reprimanded counsel in the presence of the jury, and, on one occasion, when counsel objected to evidence in reference to the divorce case, said to counsel: “You drew that up yourself, Mr. Sigler; go ahead.” A fair trial imperatively requires that the court shall not become a partisan, nor assume an attitude toward defendant that indicates to the jury his opinion of the merits of the case being tried or the credibility of the witness, and shall not reprimand counsel in the presence of the jury, and shall maintain a proper decorum in court, and it is the duty of counsel to observe a respectful attitude toward the court. The court here may have been somewhat testy, but we think it cannot be said that he was a partisan or unfair.

Lastly, it is insisted that the county attorney in his closing argument was guilty of prejudicial error in referring to the trial of Johnson that he was “acquitted by a jury of 12 good men in the city of Ardmore,” and in again saying, “Do you believe that if the good people of Homa believed that he was a wife beater that they would be here backing him up not only in this case but in the former trial?” as outside the record and an appeal to prejudice and passion. This is not an unreasonable argument or deduction from the evidence quoted, nor is it inflammatory or calculated to arouse any feeling against defendant.

Several other contentions are made in the briefs, all of which have had attention, and none are of sufficient merit to require special discussion.

Upon an examination of the entire record, we find no substantial violation of any constitutional or statutory right of the defendant, and think there has been no miscarriage of justice. The verdict of the jury in assessing the punishment of defendant at 18 months in the penitentiary is, under the circumstances. shown, extremely lenient. Graham v. State, 28 Okla. Cr. 266, 230 P. 763; White v. State, 34 Okla. Cr. 424, 246 P. 1114.

The case is affirmed.

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


text:
    WALTER COPPERFIELD v. STATE.
    No. A-6043.
    Opinion Filed April 30, 1927.
    (255 Pac. 590.)
    Holcombe & Lohman, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of stealing an automobile, and sentenced to serve a term of five years in the state penitentiary.

The evidence shows that the car in question was the property of A. H. Gates, and that on the evening of June 18, 1925, the car was parked in front of Gates’ drug store in Hominy, about 9 p. m. Mr. Gates was called to the front of the store and discovered this defendant in his car in the act of backing it out. He ran towards the car and called to defendant and tried to stop him, but defendant backed out and drove away. Gates immediately got into another car, and, with the witness Honeycutt, started in pursuit. About a mile and a half from Hominy they overtook defendant, drove in front of him, and forced him to stop, but as soon as Gates and Honeycutt stopped the car in which they were riding, defendant drove Gates’ car around them and went on. Gates again tried to stop, him, but he paid no attention and drove on. About 2*4 miles farther, Gates found his car in the ditch abandoned by defendant. Complaint was filed against defendant the following morning, but he was not apprehended until four days later.

There is no contention on the part of defendant that he did not take the car as alleged, but he contends that at the time of the taking by reason of intoxication he was incapable of forming a criminal intent. He relies for reversal upon two principal propositions: First, the insufficiency of the information; second, error in excluding testimony offered by defendant.

Considering the first assignment, the information alleges that defendant “ * * * did then and there wrongfully, unlawfully and feloniously, by fraud and stealth, take, steal, and drive away one Hudson speedster automobile, * * * the property of A. H. Gates, with the unlawful and felonious intent then and there of him, the said Walter Copperfield, to deprive the owner thereof and to convert said property to his, the taker’s, own use, contrary,” etc.

It is insisted that this charge is insufficient for the reason that it fails to allege that the taking was without the consent of the owner, citing Jackson v. State, 10 Okla. Cr. 525, 139 P. 324. This contention cannot be sustained. It is not essential that the information directly aver that the taking was without the consent of the owner, but words of similar import may be used. Certainly the allegation that the taking was wrongful, unlawful, and felonious, by fraud and stealth, and with the unlawful and felonious intent to deprive the owner thereof and to convert to the taker’s own use, is equivalent in meaning to the direct allegation that the taking was without the consent of the owner. Goertz v. State, 29 Okla. Cr. 261, 233 P. 768.

Upon the second assignment, there is some evidence that at the time of the commission of the offense defendant was intoxicated. One witness, defendant’s legal guardian, testified that he saw him the afternoon before the crime was committed, between 2 and 4 o’clock; that he appeared to be drunk and asked for money. Defendant himself testified that he had drunk two pints of whisky on the afternoon and night and was intoxicated and did not know that he took the car until he found himself in the ditch where the car was abandoned. There was also evidence that he was an habitual drinker and at one time had been in Duke’s Sanitarium as an alcoholic. All the testimony offered touching his condition at the time of the offense was admitted, but the court excluded evidence of intoxication at other times, and also excluded evidence of his general intelligence and education. There is no claim that he was insane or mentally incompetent to commit the crime charged, and this line of evidence was properly excluded. Evidence of the mental condition of defendant at the time of the commission of the offense is material, and if from such evidence the jury should find that defendant at the time he committed the offense was in such a state of intoxication as to render his mind incapable of forming or entertaining the intent essential to constitute stealing, or if it should be sufficient to raise in the minds of the jury a reasonable doubt as to whether or not he was capable of forming and entertaining such intent, it was the duty of the jury to acquit him. Derrisaw v. State, 29 Okla. Cr. 377, 234 P. 230, and authorities cited. See, also, Pusley v. State, 22 Okla. Cr. 192, 210 P. 306.

The mental condition of an accused, however, is a question of fact for the jury to determine from all the evidence, under proper instructions. There was sufficient evidence to carry the case to the jury, and the jury were fully and correctly instructed in the court’s instruction No. 11, as follows:

“You are further instructed that the defendant, Walter Copperfield, makes no denial that an automobile belonging to A. H. Gates was driven out of the city of Hominy, Osage county, on the 18th day of June, 1925. He claims, however, that if he drove said car, he was irresponsible for his action at said time, due to the fact, as he alleges, that he was so under the influence of stimulants that he did not know the result of his acts. He claims that at said time, his mental powers were so overcome by said intoxicant, that he was incapable of reasoning, and that it was impossible for him to form a criminal intent. You are further told that in order to constitute the crime of larceny, a criminal intent must exist in the mind of the defendant at the time the crime was committed. And it is incumbent upon, the state to show such intent by competent evidence. This intent may be shown, however, from facts and circumstances surrounding the taking of the property. The intent with which the property is taken, being a mental condition, it is impossible to produce direct proof upon that point. In this case if you shall find from ‘the evidence that the defendant, Walter Copperfield, was so intoxicated that he could not think rationally and that he was incapable of forming an intent to steal said car, and to know, the result of his acts, or if you shall have a reasonable doubt in your mind as to whether he was incapable of forming a criminal intent and of knowing the results of his acts, then and in that event you should acquit him.”

Some other contentions are briefly discussed; all have had our attention. They are not of sufficient importance to require separate consideration.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    W. E. HOLMES v. STATE.
    No. A-5866.
    Opinion Filed April 30, 1927.
    (255 Pac. 722.)
    Champion, Champion & Fischl, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the' district court of Carter county on a charge of driving an automobile while intoxicated and was sentenced to serve a term of one year in the state penitentiary.

The facts disclosed by the record are, in substance, as follows: On January 30, 1925, defendant drove an automobile down Main street, in the city of Ardmore, and ran into a Ford roadster which was parked; he then cut the corner on Washington street, drove up that street and struck two other cars, and in backing away from one of these struck another; he then drove to a garage and as he entered struck the door. The officer who arrested him testified that he smelled whisky on his breath, and that he was drunk enough to stagger. Other witnesses testified he was drunk. Defendant testified that he had taken a drink of “jake” from a Coca-Cola glass. He explained his erratic driving by saying there was something wrong with the car, that it did not steer right and “wiggled around.”

Defendant has filed an exhaustive brief contending that the act upon which the prosecution is based (section 3, c. 16, Session Laws 1923) is unconstitutional as in conflict with section 57, article 5, of the state Constitution. This is no longer an open question in this state. The contention made has several times been decided adversely to defendant’s claim. McHenry v. State, 34 Okla. Cr. 154, 245 P. 1001; Butler v. State, 34 Okla. Cr. 239, 245 P. 1004; Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168. In the cases cited, the constitutionality of this statute has been fully considered. The law as announced in those cases is fully adhered to.

The only other matter presented in the brief is that the punishment is excessive, and that this court, under the power vested in it by section 2820, Comp. Stat. 1921, should modify the judgment and sentence. It is true that no person was injured as a result of the acts of defendant, hut the evidence, however, clearly discloses that persons upon the highway were endangered by defendant’s acts and the punishment assessed is not so excessive as to require this court in the furtherance of justice to modify the judgment and sentence.

The ease is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    Ex parte EARL G. HAWKINS.
    No. A-6578.
    Opinion Filed April 30, 1927.
    (255 Pac. 718.)
    A. J. Carlton, F. H. Reily, and J. H. Reily, for petitioner.
    The Attorney General, for respondent.
   EDWARDS, J.

This is an original action in this court for a writ of habeas corpus. The petitioner alleges that he is illegally detained by Frank Fox, sheriff of Pottawatomie county, and that a requisition from the Governor of the state of Kansas has been honored by the Governor of the state of Oklahoma, and that said sheriff is about to deliver petitioner to George F. Speed, agent for the state of Kansas, to be conveyed to the state of Kansas, upon a prosecution pending in the courts there, charging petitioner with the crime of desertion of his wife and children in that state. Petitioner alleges that the separation between himself and his wife, the complaining witness, occurred in the state of Oklahoma, that the petitioner and his said wife and their children were at that time residing in the county of Kiowa, state of Oklahoma, and that he is not a fugitive from the state of Kansas. A rule to show cause was issued upon said petition, and a hearing had, at which hearing it was made to appear by the undisputed evidence that, just prior to the separation of petitioner and his wife, they resided as husband and wife in Kiowa county, this state; that a separation took place, and after some time the wife, the complaining witness, removed to the state of Kansas and initiated this prosecution. The petitioner is not a fugitive, within the meaning of the extradition laws.

Habeas corpus is an appropriate proceeding to determine whether an accused is a fugitive, within the meaning of the extradition law, and subject to be taken from the jurisdiction of this state to the state whose laws he is charged with violating. Having determined that he is not a fugitive, it follows that the writ should be awarded and the petitioner discharged.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    JOHN LUTKE v. STATE.
    No. A-5739.
    Opinion Filed April 30, 1927.
    (255 Pac. 719.)

      Hill & Banta, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Seminole county on a charge of having the possession of intoxicating liquor with intent to violate the prohibitory liquor law, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50.

The judgment was rendered on April 15, 1925, and the appeal was lodged in this court on August 13, following. The record discloses that notice of appeal was served on the county attorney only. It shows no service of notice on the court clerk, as required by section 2809, Comp. Stat. 1921. It does not show the issuance of any summons in error, nor the waiver of such by the Attorney General. This court does not acquire jurisdiction of the appeal. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173, and authorities cited.

For the reasons assigned, the attempted appeal is dismissed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    J. P. ROBERTSON v. STATE.
    No. A-5814.
    Opinion Filed April 30, 1927.
    (255 Pac. 715.)
    Morgan, Osmond & Morgan, 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 in the county court of Caddo county, state of Oklahoma, on a charge of intentionally, willfully, and unlawfully playing in a certain game commonly called poker, played with a deck of cards, and at which game so played money was then and there bet, won, and lost, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.

To the information the defendant entered his plea of not guilty. A jury was impaneled and trial had, and the jury found the defendant guilty, and assessed his punishment at 30 days in jail and a fine of $100. Motion for a new trial was filed, considered, and overruled by the court, and defendant reserved an exception. To reverse the judgment and sentence the defendant has appealed to this court.

Defendant has assigned fourteen errors alleged to have been committed by the court in the trial of his case. After a careful consideration of the record, the only assignments it is deemed necessary to consider are assignments 1 and 5, which are as follows:

“(1) The court erred in overruling the motion of plaintiff in error for a new trial.”
“(5) The verdict of the jury is contrary to law; is contrary to the evidence; and is contrary to the law and the evidence.”

In order to properly consider the assignments set out and to search the proper conclusion as to the contention of the defendant, it is necessary to set out in this opinion a summary of the testimony of the witnesses as disclosed by the record. T. C. McCullough, called as a witness on behalf of the state, stated:

“I know the defendant, J. P. Robertson, when I see him. On the 9th day of November, 1924, I saw him. He was sitting crosslegged on the north side of a blanket with some cards in. his hands. He was looking at the cards. I did not see him make any bet or anything like that at the time, nor did I see any money on the blanket. Myself, the McAnallys, Flansburg, Henry Rupp, Lindsey Morgan, and Hawkins went to the premises of the defendant. It was the first time I had been in that section of the country. I would say • that the defendant was on the north side of a blanket that was spread down. I did not get any of the cards or the money. Most of the parties with me had guns. We had no search warrant or warrant for any one that was at the place where I saw the defendant so far as I know. I live about 15 miles from the scene of action. We were all notified to get together at Mr. McAnally’s house on Sunday morning. They claimed they were going down to look for a still. There was 14 or 15 in the party. I don’t know how many shots were fired. These parties were sitting on a blanket, and our party approached in line close together, and when we got near them some one hollowed ‘Hands up!’ and shortly thereafter some of the parties in our crowd began shooting. I was pretty close when the defendant was shot. I was probably 30 or 35 feet from him.”

A. A. Flansburg, Henry Rupp, Willie McAnally, Lindsey Morgan, Dave Corbin, Ira McAnally, Harve McAnally, John Bates, and others, witnesses called by the state, testified in substance as did McCullough. All admitted that they were not looking for any of the parties they saw when they came upon defendant, and there is no testimony showing that this defendant was playing at any kind of game and betting money; the only testimony being that he was present there where there were cards on the blanket and other parties were with him. The witnesses for the state agree that no one had a search warrant, agree that no one had a warrant for either of the other parties there, and did not have a search warrant to enter upon the premises of the defendant, and that they never saw the defendant bet any money or play any cards.

A careful examination of the evidence in this case only tends to create suspicion or a possibility that the defendant might have been engaged in playing cards, but there is no evidence whatever that he had played any cards in a game of poker or any other game at cards.

Where there is evidence to support the verdict, this court will not pass upon its weight and sufficiency in order to determine whether or not the defendant is guilty as charged, but we hold there must be evidence tending to support the essential allegations of the information.

The case is reversed and remanded, with directions to dismiss.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    ABE TAYLOR et al. v. STATE.
    No. A-5740.
    Opinion Filed April 30, 1927.
    (255 Pac. 714.)
    Hill & Criswell, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Seminole county on a charge of having the unlawful possession of intoxicating liquor and were each sentenced to pay a fine of $200 and to serve a term of 60 days in the county jail.

The first contention made is that the evidence is insufficient to sustain the verdict. Upon this point, the record discloses that certain officers, with a search warrant, went to the premises of defendants and made a search without finding any intoxicants. They then saw defendants coming out of a vacant 40-acre tract of land and go into a field where some boys were plowing. They thereupon arrested defendants and searched the vacant 40 acres of land and near the center found intoxicating liquor and a part of a still; there were various trails leading in different directions from it. There was no proof of who owned or had control of the 40 acres of land, nor who was the owner of the intoxicants found except the circumstances detailed. Olne of the defendants lived about a quarter of a mile away, and the other about a mile and a half. The evidence that defendants were in possession of the whisky found is not clearly made to appear. There should be some proof that defendants were in possession of the intoxicating liquor found or such circumstances from which it may be reasonably and logically inferred, such as proof of the ownership, or control of the land where it was found, or such connection with it that it can be said that there is proof of possession. Mater v. State, 9 Okla. Cr. 380, 132 P. 383; Benson v. State, 10 Okla. Cr. 16, 133 P. 271.

Complaint is also made that the court erred in admitting evidence that the homes of the defendants had a bad reputation as places where intoxicating liquors were dispensed. Prosecuting officers seem to be in confusion over the admissibility of this evidence. In a case where a defendant is charged with maintaining a place where intoxicating liquors are dispensed, deputation of the place is admissible. Cameron v. State, 13 Okla. Cr. 692, 167 P. 339; Tindell v. State, 18 Okla. Cr. 721, 196 P. 555. 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. Thompson v. State, 9 Okla. Cr. 525, 132 P. 695; Brokhaus v. State, 11 Okla. Cr. 625, 150 P. 510; Blumhoff v. State, 11 Okla. Cr. 662, 146 P. 1195; Ward v. State, 15 Okla. Cr. 150, 175, Pac. 557, and authorities cited.

The case is reversed and remanded.


author: EDWARDS, J. DAVENPORT, J.

text:
    W. L. HOLLOWAY v. STATE.
    No. A-5744.
    Opinion Filed May 7, 1927.
    Dissenting Opinion May 11, 1927.
    (255 Pac. 1022.)

      John A. Goodall, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county on a charge of burglary, and sentenced to serve a term of two years in the state penitentiary.

The first assignment presented in the briefs is that the evidence is insufficient to sustain the verdict. The evidence clearly discloses that the burglary was committed as alleged in the information, and that defendant, at the time of the burglary, removed a considerable portion of the property stolen. A part of it later was found in his possession and in the possession of other parties to whom he had delivered it. He testified that he purchased this property from one of his codefendants, and that he hauled the property away from the place burglarized without knowing that the burglary was committed, but believed that the person from whom he procured it was authorized to sell it to him. This testimony presents a question of fact for the jury'. If the theory of the state is true, defendant participated in the burglary, and is clearly guilty. If the theory of the defendant, is true, he is not guilty of any offense, and should be acquitted. This court has uniformly held that questions of fact are for the determination of the jury, and, where there is evidence from which the jury ,may reasonably and ^logically find the guilt of an accused, this court will not set aside the verdict for insufficiency.

The other assignment is that the trial court erred in overruling defendant’s application for a continuance on the ground that his attorney of record was a member of the Legislature then in session. This case was tried in the early part of March, 1925. On March 12, 1923, the information had been filed, about two years prior to the trial, and various continuances had been taken by defendant. From the time that defendant first appeared in court until the latter part of February, 1925, he had been represented by. Judge E. B. Arnold, a reputable attorney. On the last Thursday in February preceding his trial in the first days of March defendant testified that he dispensed with the services of Judge Arnold, and that he then employed Hon. John A. Goodall as his attorney. On February 28th a motion for continuance was filed, which, omitting the formal parts, is as follows:

“Comes now the above-named defendant, W. L. Holloway, and moves that the above and foregoing case be continued over the term, for the reason that his counsel, John A. Goodall, is a member of the state Senate of the state of Oklahoma, in attendance on the session of said Senate, and that said cause cannot be tried at said term on that account.
“Wherefore defendant moves that said cause be continued over the term.
“John A. Goodall, Attorney for Defendant.”

At the time this, application was presented, and in support of it defendant testified:

“ * * * Q. And you have had E. B. Arnold employed and your case had been continued upon your instance for two years? A. I guess it has. Q. And John A. Goodall told you at the time you employed him that he was in the Legislature, and you would be entitled to a continuance, did he? A. He said he could not be here for the trial, and that he would file a motion for continuance. Q. You understood he was to file a motion for continuance? A. Yes, sir. Q. On the ground he was in the Legislature? A. Well, he said he could not be here for the case, and he would file a motion for continuance. * * *”

This application for continuance was overruled, and defendant was given one day to procure counsel. He procured Hon. R. Y. Nance as his attorney, who conducted his defense.

We take judicial notice that the Legislature of the state of Oklahoma convened in regular session on the 6th day of January, 1925, and concluded its session on the 28th day of March, 1925, and that Hon. John A. Goodall was a member of the Senate. In determining whether or not the court erred in overruling the application for continuance, it is necessary that we determine the scope and application of section 583, Comp. St. 1921, the pertinent part of which reads:

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

It will be observed that, at the time Senator Goodall was employed, the Legislature was in session, and had been in session some weeks. Defendant knew at the time he employed Mr. Goodall that he was a member of the Legislature; knew that he could not be present at the trial of his case; and was then informed that his counsel would apply for a continuance for him.

The purpose of this statute was, no doubt, to encourage members of the bar to become candidates for the lawmaking body, of the state, and to protect a defendant whose attorney, presumably familiar with his case, could not attend his trial by reason of official duty, and. to protect members in their business while serving the state in this capacity by preventing trials of cases where they are attorneys of record during a session of the Legislature and for ten days thereafter; that during this time they should not be disturbed in their duties as lawmakers. The privilege of a continuance as a matter of right applies only to a defendant whose attorney of record is a member of the Legislature. A member of the Legislature, during a session of the Legislature, also has the right to contract for any new business presented to him, and, if such business arises during a session of the Legislature, and he is employed, he would then be entitled to the benefits conferred by this statute. But, where an accused against whom a prosecution is pending prior to the convening of the Legislature, and who prior to such time has employed counsel as his attorney of record, he may not during a legislative session, by employing a member of the Legislature, procure a continuance on that ground as a matter of right. To give the statute the construction here contended for would put it in the power of every defendant at his pleasure to continue his case during a session of the Legislature. This we think is contrary to the spirit and meaning of the act in question.

Under the facts presented in this case defendant’s application did not entitle him to a continuance as a matter of right, but such application was addressed to the sound discretion of the trial judge, and, no abuse of such discretion being apparent, the overruling of such application is not error.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J.

(dissenting). I cannot concur in the view of the majority of the court upon the interpretation placed upon that part of section 583 of the Compiled Statutes of Oklahoma 1921 material to this case, relating to motions for continuance, which is as follows:

“Provided, that if the party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such facts shall constitute cause for continuance, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right.”

Prior to the adoption of that part of section 583 hereinabove set out a motion for continuance was addressed to the sound discretion of the trial court. Under the provisions of this statute the only thing that is necessary to be shown by the defendant is that his attorney is a member of the Legislature or of the Senate sitting as a court of impeachment, and that the Legislature is in session at the time the motion for continuance is filed.

The majority of the court bases its opinion on the fact that Senator Goodall was not hired as an attorney for the defendant until the Legislature had convened. The question to be determined is, Did the' defendant bring himself within the language of the statute? If he did, his motion should have been sustained.

My interpretation of the statute is that, if an attorney has been employed by the defendant, who is a member of the Legislature or Senate sitting as a court of impeachment, even though the employment was only a short while previous to the time of filing the motion, and after the convening of the Legislature, the defendant is entitled to a continuance as a matter of right.

The question to be determined is, What was the intent of the Legislature at the time it passed the statute in question? If it intended, in writing the statute as it did, that, when a motion for continuance was filed, showing the facts stated in the defendant’s motion, the defendant was entitled to a continuance as a matter of right, then the motion of the defendant in this case should have been sustained and a continuance granted..

I can readily see where the provision of the statute may be abused in cases pending in the courts by the defendant hiring members of the Legislature, and thereby causing cases to be continued, but, on the other hand, I can readily see the benefit of the statute to attorneys and litigants throughout the state. No statute can be written that may not be abused; yet, when it is written in language plain and unambiguous, and as easy to understand as that part of the section involved, I am constrained to hold and construe the section as being mandatory, and I hold it is immaterial as to when the attorney was employed by the defendant, if he is the attorney of the defendant when the motion is filed. Based upon the allegations set forth in the motion for continuance, it is the duty of the court as a matter of right to grant a continuance. If the statute is too broad, then it is the duty of the Legislature to correct it.

The trial court erred in overruling the motion of the defendant for continuance on the ground stated in the motion, and the defendant is entitled to a reversal of this case as a matter of right.


author: DAVENPORT, J,

text:
    Ex parte F. W. WINFORD.
    No. A-6590.
    Opinion Filed May 7, 1927.
    (255 Pac. 1021.)
    Morgan & Morgan, for petitioner.
    Houston B. Teehee, Asst. Atty. Gen., and Paul R. Wunsch, Co. Atty., of Kingman, Kan., for respondents.
   DAVENPORT, J,

This is an original action in this court for a writ of habeas corpus. The petitioner alleges that he is restrained of his. liberty and is unlawfully imprisoned at Anadarko, Caddo county, Okla., by Hon. George Nixon, sheriff of said county, and Mr. Fisher, sheriff of Kingman county, Kan., and that a requisition from the Governor of the state of Kansas has been honored by the Governor of the state of Oklahoma, and that the said sheriff is about to deliver petitioner to the sheriff of Kingman county, Kan., to be conveyed to the state of Kansas upon a prosecution pending in the court there charging petitioner with the crime of removing mortgaged property from the state of Kansas to the state of Oklahoma, and with the selling and disposing of the same in violation of the laws of Kansas.

A writ of habeas corpus was issued upon said petition returnable May 5, 1927, at which time a hearing was had. The respondents made their return showing that they held .petitioner upon the proper showing that petitioner was charged with a crime in Kingman county, state of Kansas, and that a requisition had been requested by the Governor of Kansas to the Governor of Oklahoma to deliver the petitioner to the sheriff of Kingman county, Kan. Petitioner was charged with being a fugitive from justice from the state of Kansas. Petitioner sued out this writ of habeas corpus denying that he was a fugitive, and stating that petitioner’s presence in the state of Oklahoma is by reason of an express order of the district court of Kingman county, Kan.

Habeas corpus is the proper proceeding to determine whether the prisoner is a fugitive within the meaning of the extradition laws and subject to be taken from the jurisdiction of this state to the state whose laws he is charged with violating. Upon the hearing had the court determined that the petitioner was a fugitive; the writ is therefore denied, and prisoner remanded to the custody of the respondents.

DOYLE, P. J., and EDWARDS, J., concur.


author: DOYLE, P. J.

text:
    CHARLEY CHANCE v. STATE.
    No. A-6061.
    Opinion Filed May 7, 1927.
    (255 Pac. 1022.)

      A. W. Turner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Charley Chance, was convicted in the county court of Ottawa county on an information jointly charging plaintiff in error and Bill Chance with the unlawful possession of intoxicating liquor, alleged to have been committed on or about October 24, 1925. The jury by their verdict found both defendants guilty, and fixed his punishment at a fine of $150 and confinement in the county jail for 60 days. From the judgmént rendered in accordance with the verdict, plaintiff in error, Charley Chance, appealed by filing in this court February 15, 1926, petition in error with case-made. On February 8, 1927, the cause was submitted on the record.

The Attorney General has filed a motion to dismiss the appeal on the ground and for the reason that said plaintiff in error has, since the filing of his appeal, removed from the state of Oklahoma without leave of court, and is now a resident of the state of Kansas, and cannot be compelled to submit to any judgment this court may render in said cause, as shown by the affidavit of A. L. Commons, attached.

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 the appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case.

On the facts as averred in the motion, and by affidavit in support thereof, it is our opinion that plaintiff in error has waived his right to have his appeal in this case considered and determined.

It follows that the motion to dismiss the appeal should be sustained. It is therefore the order of the court that the motion be sustained and the appeal accordingly dismissed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CLEM WILSON v. STATE.
    No. A-5994.
    Opinion Filed May 14, 1927.
    (255 Pac. 1118.)
    Anglin & Stevenson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Clem Wilson, was convicted on a charge of selling intoxicating liquor, to wit, “whisky to Timmie Wolf, Thompson Deer, and Jesse Jacobs,” and was sentenced to pay a fine of $50 and imprisonment for 30 days in the county jail. From the judgment he appeals, by filing in (this court on January 9, 1926, a petition in error with transcript of the record attached. On May 2d, the cause was submitted on the record. Counsel for plaintiff in error have filed a motion to dismiss his appeal, which motion is sustained, and the appeal herein is dismissed, and the cause remanded to the trial court, with direction to cause its judgment to be carried into execution. Mandate forthwith.


text:
    C. F. BRAMBLE v. STATE.
    No. A-5757.
    Opinion Filed May 14, 1927.
    (255 Pac. 1104.)
    D. E. Ashmore and Don Cameron, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county on a charge of grand larceny, and sentenced to serve a term of three years in the state penitentiary.

The information charges that defendant did take, steal, and carry away ten joints of pipe, of the value of $250, the property of W. B. Pine. It is first argued that the court erred in refusing a continuance on account of the absence of the wife of defendant, who was sick. The evidence discloses that this witness had been sick for a year or more. Before the calling' of this case for trial, she had attended court, but had fainted and was taken to her home, and was too ill to be present and testify. Strict diligence probably would require defendant to have taken a deposition of this witness. Under the cicrumstances shown her testimony, taken at the preliminary, might have been conceded by the state. A reasonable postponement, under these eircumtsances, should have been allowed.

It is further contended that during the course of the trial, the trial judge on several occasions manifested hostility toward defendant and his counsel and made prejudicial comments in the presence of the jury. This contention appears to Be sustained by the record. We will not set out the various remarks made by the court, but, from the trend of his cross-examination of defendant and his witnesses, the jury must have believed he was convinced of defendant’s guilt. A defendant, whether guilty or innocent, has a constitutional right to have a fair trial. The courts are not partisan of the state nor of an accused. The trial judge, of course, is not a mere umpire, but should control the proceedings before him, but in doing so should treat both sides with equal fairness and impartiality. Because of the position occupied, jurors naturally are easily influenced by any statement by a trial judge, or hy the manner in which he treats a defendant or his counsel. He should refrain from statements or comments on the evidence, or concerning the parties or witnesses, from which the jury might learn his views as to the credibility of the witnesses or the merits of the case.

Substantial justice requires that this case be reversed, and the defendant awarded a new trial.

TDOYLE, P. J., and DAVENPORT, J., concur.