text:
    ROY MORSE v. STATE.
    No. A-9301.
    Feb. 4, 1938.
    (77 P. 2d 757.)

      Mitchell & Mitchell, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Milton Keen, Co. Atty., of Clinton, for the State.
   BAREFOOT, J.

The defendant was tried in the district court of Custer county for a violation of the liquor laws, was convicted and sentenced to serve a term of nine months in the reformatory at Granite, and has appealed.

The record discloses that a complaint was filed in the county court of Custer county on the 29th day of June, 1936, charging the defendant with the unlawful possession of intoxicating liquor on the 27th day of June, 1936, and of having been convicted of a violation of the liquor laws at a prior date of November 28, 1933. At the preliminary examination held during the month of June, 1936, defendant waived preliminary, and was bound over to the district court of Custer county. The bond provided for his appearance in the district court of said county on the 21st day of July, 1936. An information was not filed by the county attorney in the district court of said county until the 28th day of September, 1936. In the meantime the next regular term of the district court of Custer county was set to begin on the 26th day of September, 1936, and the jury for said term was summoned to be present on the 28th day of September, 1936, the very date that the information was filed against this defendant. The defendant was arraigned on the same day the information was filed. He had not procured counsel to defend him at that time, but immediately procured counsel and the plea of not guilty, which he had entered, was permitted to be withdrawn, and he filed a demurrer to the information, which was overruled by the court. He then made a motion for a continuance which was as follows :

“Comes now the defendant and moves that the trial of this cause be continued for the following reasons, which appear of record:
“That the assignment of causes for trial at this session was duly made by the presiding judge of this court inore than ten days prior to the 26th day of September, 1936, the said jury session beginning on said 28th day of September, 1936, and after said assignment was made, the same was printed and sent to attorneys and litigants. That this cause was not assigned nor included in the printed assignment.
“That no information had been filed in this cause at the time of making and printing said assignment; that said information was not filed until the 28th day of September, 1936, and that no arraignment of the defendant was had until the late afternoon of September 28, 1936, after which the case was set for trial the 30th day of September, 1936, and for that reason is not triable at this time (September 30, 1936).
“For these reasons and for the reason that said case was not put at issue until the 28th day of September, 1936, said case is not triable at this term.
“For this reason and the additional reason that the defendant had not had sufficient time to prepare for trial nor to confer with witnesses, defendant cannot proceed to the trial of this cause.”

A hearing was had upon this motion and evidence offered supporting the same. A stipu]ation of agreement between tbe county attorney and counsel for defendant was as follows:

“It is stipulated between counsel for tbe state and for tbe defendant that tbe assignment of cases for trial in this session of tbe court was duly made by tbe presiding judge of this court more than ten days prior to tbe 28th day of September, 1986, tbe jury session beginning on said 28th day of September, 1936; that after said assignment was made tbe docket was duly printed and sent to tbe attorneys; that case number 1002, tbe state of Oklahoma against Roy Morse was not included in the printed assignment; that tbe case itself was not transferred from tbe county court to tbe district court until tbe 28th day of September, tbe first day of tbe jury term and that tbe information in tbe case was not filed until that date, tbe 28th day of September.”

Tbe defendant also offered in evidence Rule 9 of tbe Rules of tbe District Court of tbe Twelfth Judicial District, which was as follows:

“If any case, which stands for trial at any term, shall not have been assigned for trial at such term such case may be called for assignment by either party giving notice to tbe adverse party of not less than one day of the intention to move the assignment of said cause.”

This motion for continuance was overruled by tbe court on tbe 30th day of .September, 1936, and exception taken, and defendant was placed on trial on that date. The overruling of tbe motion for a continuance in this case, based upon tbe above facts, is tbe first error complained of by defendant.

It will be seen from tbe record in this case that tbe defendant was given a preliminary examination during tbe month of June, 1936, and was bound over to tbe district court at its next term, but that tbe county attorney failed to file an information against tbe defendant until tbe 28th day of September, 1936, which was two days after the term of court had begun, and after a written assignment of the cases, both civil and criminal, had been made and printed and distributed to the attorneys and litigants of Custer county. The case of defendant was not upon this assignment, for the reason that the county attorney had not filed an information at the time that the assignment ivas made, yet when it was filed defendant was arraigned on the same day, September 28th, and was forced to trial two- days thereafter, on the 30th day of September, 1936. This court has heretofore had this question before it upon several occasions. As stated in those cases there is no statute in this state with reference to when criminal cases should be set. The statute pertaining to civil cases, Oklahoma Statutes 1931, § 395, Okla. St. Ann., tit. 12, p. 386, § 666, provides that civil cases may stand for trial ten days after the issues are made up. It has been the universal holding of this court that a reasonable time should be given to the defendant to prepare for his trial. A distinction has been made between the cases where a defendant is being tried upon a felony charge and a misdemeanor. Jacobs v. State, 29 Okla. Cr. 140, 232 Pac. 861.

In the case of Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464, 469, this court says :

“It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until ten days after the issues are made up and no felony case should be set over the objection of the defendant within ten days after his plea is entered.”

In the case of Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688, 690, this court said:

“Every person charged with crime is entitled to a fair trial according to the due and orderly course of the law. The right of every person charged with crime to have compulsory process for obtaining witnesses in his own behalf is guaranteed by the Constitution (section 20, Bill of Rights); and this involves, as a matter of course, the time reasonably necessary to prepare for trial, and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuances ought always to be granted, when, from the showing made, justice requires it; this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same.”

In the case of Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355, 357, the court, referring to the above decisions, calls attention to the fact that in both of those cases the death penalty was given. In the first one the sentence was reduced to life imprisonment, and in the other the case was reversed. In the Hogan Case the information was filed against the defendant on November 25, 1924. He was presumably arraigned on April 24, 1925, and on September 7, 1925, the case was set for trial on October 12th. The case was not reached October 12th, and on October 14th a demurrer to the information was filed and overruled, and the case was reassigned for October 15th. It was then suggested to the trial court that defendant had not entered his plea and the plea of not guilty was entered. Defendant then applied for a continuance for the reason that ten days had not intervened between the entry of the plea and the date the case was set for trial. Judge Edwards, reviewing the cases heretofore quoted, held:

“There is no statute fixing the time in criminal cases which shall intervene before a case shall stand for trial after arraignment and plea of not guilty. A reasonable time must be allowed. What is a reasonable time will depend on the circumstances in the particular case. In this case defendant had eleven months from the time of his apprehension until the case went to trial. He was arraigned some six months prior to the time of his trial. Apparently it was an inadvertence that his plea was not entered long before the time fixed for trial. Counsel for both the state and the defendant proceeded as if the plea of not guilty had been entered. A continuance had been stipulated in April. No objection was made, on September 7, when the case was assigned for trial on October 12. On October 14, the application for continuance on account of the absence of witnesses was filed, prior to any suggestion that the plea had not been entered. Defendant had ample time to prepare, and under the circumstances shown it was not prejudicial error to assign the case before the formal plea of not guilty was entered.”

This decision, to our mind, announces the rule that should be followed, that is, that a reasonable time would depend upon the circumstances in the particular case.

In the case at bar the defendant had waived his preliminary examination in June, and his appearance bond called for his appearance before the district court on July 21st. At that time he could not appear for the reason that the county attorney had not filed an information against him in the district court. The term of court had been set and the cases for that term, both civil and criminal, had been set. The docket had been printed and defendant’s case was not only not on the docket, but no information had been filed against him. We do not think it was fair to the defendant for the county attorney to file an information in this case on the 28th day of September, and after the term of court had begun, and put this defendant to trial on a felony charge on the 30th day of September, two days after the information had been filed. We do not mean to say by this that defendant was free of all fault. He knew that he had been bound over and that a case would be pending against him. It was his duty to begin preparation for his defense. If the county attorney had filed an information and his case had been set upon the docket, -he would have had no excuse to delay his trial, but by reason of the fact that no information had been filed against him and his case was not assigned upon the docket, he had the right to believe that it was not the intention of the duly constituted officials to place him on trial at that term of the court, and especially upon as short notice as two days. We do not believe that this was sufficient time for preparation of a felony case for trial under the circumstances shown in this case. The defendant was not in jail but was out on bond.

It is next contended by defendant that the court erred in permitting the state to' prove the prior conviction by the introduction of the criminal appearance docket. The record discloses that the state put upon the witness stand, for the purpose of showing the former conviction, the court clerk, who testified that she was unable to produce the files in the case, and the county attorney then introduced a copy of the information that had been recorded, and the record shows that it was read to the jury, but a copy of the same does not appear in the record of this case on appeal. The criminal appearance docket was then introduced in evidence. It showed the following facts:

“.State of Oklahoma,

vs. Case No. 2028.

Roy Morse.

1933

June 2 Cause docketed, information filed.

June 2 Warrant issued.

June 9 Warrant ret. and ent.

June

Oct 9 Bond approved.

Nov 23 Prae filed sub issued.

Nov .25 Sub ret and ent.

Nov 27 Bond of Roy Morse forfeited. Defendant and defendant's bondsmen each called 3 times in open court. Co Atty directed to issue bench warrant for Roy Morse.

Nov 28 Motion filed.

Nov 28 Defendants motion to set aside forfeiture sustained and the bond is hereby reinstated.

Nov 28 Defendant arraigned waived reading of information, admitted his true name as stated in the information and entered his plea of guilty. The court sets January 2, 1934, at 2 p. m., as time for judgment and sentence.

Defendant released on present bond till that time.

Nov 28 Order filed.

Jan 25 Reset for judgment and sentence March 5, 1934.

Mar 5 Judgment and sentence reset for May 7, 1934.

Aug 21 On your plea of guilty it is the judgment of the court that you are guilty. It is the further judgment of the court that you pay a fine of $50.00 and serve a term of 30 days in the county jail and pay all the costs. Time to begin as of August 11, 1934.”

It will be noted that this appearance docket does not even show the offense with which the defendant was charged. It may have been shown by the information. It Avas read to the jury but so far as the record in this case is concerned it was not shown. The minutes of the court clerk, as shown by the appearance docket, might constitute a sufficient judgment upon which to base an appeal to this court as we have recently held, but we think Avhen the state desired to prove a former conviction, which is alleged in the information, the record, as contemplated by the statute, should be introduced in evidence. Section 3146, Okla. Stats. 1931, Okla. St. Ann., tit. 22, p. 255, § 977, is as follows:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the folloAving papers, which constitute a record of the action:
“1st. The indictment and a copy of the minutes of the plea or demurrer.
“2nd. A copy of the minutes of the trial.
“3rd. The charges given or refused, and the indorse-ments, if any, thereon; and,
“4th. A copy of the judgment.”

This court has had. before it, on several occasions, the question of attempting to prove a former conviction by the introduction of the appearance docket. In the case of Halbert v. State, 18 Okla. Cr. 378, 195 Pac. 504, 506, the court says:

“It would seem, therefore, that a former conviction must be established by proving, the rendition of a judgment on the verdict or plea of guilty. A judgment cannot properly be shown by an entry in the appearance docket, as was done in this case. 15 R.C.L. 581; Cockrell v. Schmitt, 20 Okla. 207, 94 Pac. 521, 129 Am. St. Rep. 737.”

See, also, Martin v. State, 30 Okla. Cr. 49, 234 Pac. 795; Browder v. State, 15 Okla. Cr. 287, 176 Pac. 96; Hancock v. State, 33 Okla. Cr. 47, 241 Pac. 1108; 16 C. J. 1344; 22 Cyc. 351.

In connection with this case, while it may not be necessary, we call attention to the fact that, in the trial of felony cases, and also in misdemeanor cases, connty attorneys should prepare formal judgments and have the same signed by the judge and filed with the papers in the case. This in addition to- the minutes taken by the court clerk; and it is good practice to follow' this procedure where there is a plea of guilty, the same as when there is a trial of the case which results in acquittal or a conviction. The best method of proving a prior conviction is by offering in evidence the indictment or information and the judgment of conviction, and after these instruments are introduced proof should be offered to show that the case has not been appealed, or, if appealed, that final disposition has been made of the same.

The court, in this case, instructed the jury as follows:

“You are instructed that it is unlawful for any person within this state to- knowingly have or keep at, in, or about his place of residence at any one time more than one (1) gallon of spirituous or vinous liquors, or any imitation thereof or substitute therefor, which contains more than 3.2% alcohol measured by weight. A violation hereof, shall be punished by a fine of not less than $50 nor more than $500 and imprisonment of not less than 30 days nor more than 6 months.”

Excepted to by defendant. Exception allowed.

Tbis instruction is based upon a section of tbe statutes which-is no longer in force in tbis state. In view of tbe fact that there bas been some misunderstanding as to the decisions of this court with reference to the “quart” and “gallon” law, and some of tbe decisions seeming not to be in harmony, we desire to give tbe history of these statutes so that it may be well known the one we consider in force at this time.

The first law passed by the Legislature with reference to this matter was the Session Laws of 1910-11, chapter 70, pp. 156, 157. Section 4 of this law made it “unlawful for any person to have or keep in excess of one quart of spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or in any manner permit any other person to have or keep, any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; * * * upon, in, or about his place of business, or any place of amusement or recreation, or any public resort, or any club room, whether such liquor be intended for the personal use of the person so having and keeping the same or not; * * * Provided, further, that this section shall not be construed, in any way, to legalize the keeping of such liquors for an unlawful purpose.”

Section 5 of this act provides:

“In order to suppress the unlawful practice of selling, bartering, giving away and otherwise furnishing liquors, the sale of which is prohibited by this act, from private residences, that it shall be unlawful for any person within this state to have or keep at, in, or about his place of residence, at any time, more than one (1) gallon of spirituous, or one (1) gallon of vinous * * * liquors, or any imitation thereof, or substitute therefor; nor more than one cask of malt liquors. * * * Provided, that this section shall not be construed in any way, to legalize the keeping of such liquors at or about a place of residence for an unlawful purpose.”

The above law was C.O.S. 1921, § 6985, Okla. Stats. 1981, § 2625, and § 2627, as amended by Laws 1933, c. 153, § 4, Okla. St. Ann., tit. 37, pp. 538, 540, §§ 31 and 32. In the case of Ex parte Wilson, 6 Okla. Cr. 451, 119 Pac. 596, this court, in an elaborate opinion held section 4 of the above act unconstitutional, for the reason that the Legislature did not have the power to absolutely prohibit the keeping of intoxicating liquors for one’s own individual use. The constitutionality of section 5 was not passed upon by the court in this case, but the two- sections of the statute being analogous it is clear that the court would have held section 5 unconstitutional for the same reason that section 4 was held unconstitutional.

The session of the Legislature held in 1923 and 1924, in an act approved March 25, 1924, passed a law (chapter 123) amending section 6999, of the C.O.S. 1921, and now section 2626, Okla. Stats. 1931, as amended by Laws 1933, c. 153, § 3; Oklahoma Statutes Annotated, title 37, page 567, § 82, in which it was provided:

“The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room; * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of any liquors for unlawful purposes irrespective of the amount.”

This act amended section 6999 of the C. O. S. 1921, now Okla. Stats. 1931, § 2626, as amended, Okla. St. Ann., tit. 37, p. 567, § 82. This was so held in the case of Jenkins v. State, 28 Okla. Cr. 249, 230 Pac. 293, and Brickley v. State, 55 Okla. Cr. 451, 32 P. 2d 743.

The session of the Legislature held in 1933, by chapter 153, § 3, of the .Session Laws of 1933, Okla. St. Ann., tit. 37, p. 567, § 82, amended section 2626 of the Oklahoma Statutes 1931, and provided:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room; * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; provided further, that this section shall not be construed in any way to legalize the keeping of any liquors for unlawful purposes irrespective of the amount.”

It will thus be seen that the last act of the Legislature, being chapter 153 of the Session Laws of 1933, is now the law in force in this state with reference to the possession in excess of one quart of intoxicating, liquor.

This court, in two very recent decisions, being the case of Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900, 901, decided by this court on the 14th day of January, 1938, and in the case of Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671, has had occasion to refer to this question, and hold that the above act is the act now in force in this state. In the case of Crowdis v. State, decided by this 58 P. 2d 154, 156, this court, after quoting section 2625 court on May 22, 1936, and reported in 59 Okla. Cr. 297, of the Oklahoma Statutes 1931, 37 Okla. St. Ann. § 32, says:

“,Section 2625, O. S. 1931, set out in this opinion, has not been amended or repealed by subsequent legislation, and is now the statute under which the defendant Melvin Crowdis should be tried, if at all, for the charge against him. Under the provisions .of the section of the statute cited, it is no violation for a person to have in his possession one gallon of whisky.”

As noted in the Dean Case, supra, it is said:

“When the Crowdis Case was before this court attention was not called to section 3, chapter 153, Session Laws 1933, 37 Okla. St. Ann. p. 567, § 82.”

And for that reason the above statement was made in the Crowdis Case. It is now clear that there is no statute in this state in force with reference to the possession of one gallon of liquor, but, as stated above, the act of the Legislature of 1933, chapter 153, which makes the possession in excess of one quart of liquor prima facie evidence of an intention to convey, sell, or give away, etc., is in full force and effect.

It will be noted by the instruction given by the court in the case at bar that the jury was told that the having or possession, at or about his residence, of one gallon of liquor, constitutes a violation of the law. This statute not now being in force and effect, and the quart statute only providing that the possession in excess of one quart shall be prima facie evidence of an intention to sell, etc., it is clear that the court erred in giving the above instruction which was excepted to by the defendant in this case. The force of this charge was that the possession of liquor was a violation of law, regardless of the intent. This is not the law.

We have carefully examined the information, and while it does not set out fully as it might the fact with reference to the prior conviction, we think it sufficiently sets this out as against a demurrer, and the court did not error in overruling the demurrer of defendant to the information.

For the reasons above stated, the judgment of the district court of Custer county is reversed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GEORGE DOWNING v. VENABLE.
    No. A-9081.
    Feb. 4, 1938.
    (76 P. 2d 277.)
    J. J. .Smith, for petitioner.
    William E. Poteet, for respondent.
   PER CURIAM.

George Downing, petitioner, being prosecuted by information in the county court of Ottawa county, charged with the offense of unlawful possession of intoxicating liquor, and having made application for change of judge upon the ground that respondent herein was so biased and prejudiced against petitioner that he could not secure a fair and impartial trial in said court before said county judge, respondent.

The original application for change of judge, presented to the respondent, was attached to and made a part of the petition for mandamus filed in this court.

The matter came on to be heard March 16, 1986; this court, having read the petition and the response thereto, finds:

“That said judge is biased and prejudiced against this petitioner; that said bias and prejudice arises by reason of the fact that said judge heretofore held a court of inquiry and by reason of the fact that said judge was a material witness against the petitioner in a felony charge growing out of said court of inquiry.
“The court having considered said petition and the communication of the respondent herein, is of the opinion that said petition should be allowed and the change of judge granted and it is so ordered.”


author: DOYLE, J.

text:
    PHIL PHILBY v. STATE.
    No. A-9287.
    Feb. 11, 1938.
    (76 P. 2d 412.)

      Billingsley & Kennerly, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case in substance charged that in Seminole county on the 6th day of November, 1935, Phil Philby did willfully, unlawfully, and felo-niously, and with the premeditated design to effect the death of one Gerald Glen Lawrence, drive a Ford V-8 automobile into and over the body of the said Gerald Glen Lawrence, thereby inflicting certain mortal wounds, from which wounds the said Gerald Glen Lawrence did then and there die.

To the information a plea of not guilty was entered. Upon his trial the jury returned a verdict finding defendant guilty of manslaughter in the second degree, and fixing his punishment at confinement for six months in the county jail. A motion for new trial was made and overruled.

From the judgment rendered in conformity with the verdict on October 5, 1936, he appeals.

The proof shows that the hit and run accident resulting in the death of Gerald Glen Lawrence, occurred 11 miles south of Seminole, on Highway 48, at which point there is a grocery and filling station, facing east 40 feet from said highway. It appears that defendant driving a Ford V-8, going south, was passing a wagon pulling a hay bailer, when the car struck the boy.

The proprietor, Mr. Lewis, testified that Leroy Puckett, Tom Woods, and Troy Bounds were in the wagon pulling a hay bailer, it was a rainy misty day, and the pavement was wet; that the car that hit the boy was going 45 or 50 miles an hour; that the boy clung to the front of the car for some distance; looked like the wheels caught his arm and pulled him under, then threw him out; that the boy made no move, and died there on the shoulder of the highway. It seemed the car checked its speed to around 30 or 35 miles an hour, but did not stop. Others came along, quite a few stopped, and he left to call an undertaker. Later the automobile was brought back to the store and some of the pieces on the car were gone; that he saw pieces he had picked up fitted in; that this happened in Seminole county.

Leroy Puckett testified that he was 15 years old; that he and Gerald Glen Lawrence were walking to Lewis’s store and caught a ride with Doxie Woods, driving a wagon with a hay bailer behind. Arriving at Lewis’s store the wagon stopped and they got off at the rear end, and ran across the pavement, and the car hit Gerald. The car was going pretty fast and did not stop. That Gerald was eight years old and small for his age.

Tom Woods testified that he was riding in the wagon and the other boy was driving the hay bailer; the boys were in the spring seat with him, when he drove off the pavement and stopped. At that time the wagon was straight east, across the road from the store. When the Puckett boy ran across the pavement he noticed a car coming from the north; the driver of the car was sounding the horn. That to him it looked like the car was going 45 miles an hour; the little boy Gerald was just behind the wagon. That he was watching the boy and not the car when it hit him. He saw the boy roll under the car as it slowed down, and then went on. The car did not stop.

Bat Ingram, deputy sheriff, testified that he received the report of a child being killed and went to the scene of the killing and picked up pieces of an automobile, got back to Konawa and learned that they had the boys at Ada, and went on to Ada; saw the defendant and his brother sitting in a car in front of the courthouse in custody of the officers; talked to defendant and later brought him back to Wewoka; that he could smell intoxicating liquor on his breath when he talked to him in Ada. Defendant denied that he had driven on that road, and he said he came around from Wewoka and Sasakwa, and said he was not implicated in any way.

Alvis Jones, deputy sheriff at Ada, testified he got the pick-up order around 2 o’clock and with Mr. Shokley went north on Highway 48; they passed the defendant’s car about three miles north of Ada on Highway 48, then turned back and pursued the car; the car kept going at such a high rate of speed that when they tried to turn west it went over the shoulder.

Phil Philby was driving and his brother was in the car. We questioned him about running over and killing the child; and he said he was not implicated at all, that he could smell intoxicating liquor about the defendant.

J. A. Doyle, sheriff of Seminole county, testified that he went to the scene of the killing and found a blood spot on the ground about 100 yards down the road from the Lewis store.

Tom Lewis, recalled, testified there was a clear view north up Highway 48 for a quarter of a mile from his store, and that a vehicle such as a wagon and hay bailer could have been seen that far.

When the state rested, the defendant demurred to the evidence on the ground that the same is insufficient to warrant a conviction of any offense defined by the statute. The demurrer was overruled. Exception.

On the part of the defense, Mrs. J. F. Daniels testified that she ran the Deaborn Hotel at Seminole, and Phil Philby, defendant, had been rooming at her hotel for two years; that on November 6th he checked out around 12:30, was going to Ada to see his sister; his brother left with him; their car was parked out in front of the hotel; that she talked to defendant immediately before he left and he was sober; had never seen the defendant when she thought he was drinking; that his general reputation was good.

The defendant called several witnesses to show his general reputation as a peaceable, quiet, and law-abiding citizen was good.

The state put in no evidence to rebut that of the defendant as to his previous good character.

The defendant did not testify as a witness.

Counsel in their brief say:

“We contend that the court erred in giving an instruction on second degree manslaughter in this case. That the information is insufficient to charge the crime of murder, ‘as the instrument of death’ was an automobile, and the information does not charge that the automobile was used or managed in such a manner as to constitute it a dangerous instrument.
“All the evidence of the state tended to show that the defendant was under the influence of intoxicating liquor at the time, that he failed to stop after striking the deceased with his automobile.”

It is urged that since the court instructed on murder and both degrees of manslaughter and the verdict is for second degree manslaughter, the jury did not believe the evidence tending to prove murder or manslaughter in the first degree, and the verdict of second degree manslaughter is not sustained by the evidence.

In the case of Walters v. State, 57 Okla. Cr. 424, 48 P. 2d 875, this court held:

“Where information charged murder, and jury found accused guilty of manslaughter in second degree, appellate court will not grant new trial on ground accused should have been convicted either of murder or manslaughter in first degree, or acquitted.”

The opinion of the court was by Edwards, J. We quote from the opinion:

“Murder is defined by section 2216, Okla. Stat. 1931 [21 Okla. St. Ann. § 701]. Manslaughter in the first degree is defined by section 2223, Okla. Stat. 1931 [21 Okla. St. Ann. § 711]. Manslaughter in the second degree is any unlawful killing not included in the definition of murder and of manslaughter in the first degree. It is not defined in specific terms, but by the catchall definition of section 2228, Okla. Stat. 1931 [21 Okla. St. Ann. § 716], which is:
“ ‘Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.’
“There are three degrees of unlawful homicide; murder and the two degrees of manslaughter. Section 3096 [22 Okla. St. Ann. § 915], is:
“ ‘3096. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.’
“This section has been many times construed and applied by this court, and it is settled law the jury must fix the degree of the crime of which a defendant is convicted when the court submits to them the different degrees. The verdict will not be disturbed on the ground the jury found defendant guilty of a lower degree of the crime charged than that established by the evidence. It sometimes happens the jury, in arriving at a verdict, does so by a compromise and fixes a lower degree than the undisputed evidence may disclose. Some states have reversed convictions under such circumstances, but, with two exceptions, this court has held the error is in favor of the accused and is not ground for a new trial. The exceptions are: Leseney v. State, 13 Okla. Cr. 247, 163 P. 956, and Lovejoy v. State, 18 Okla. Cr. 335, 194 P. 1087. These cases have been criticized and have not been followed. Irby v. State, 18 Okla. Cr. 571, 197 P. 526; Taylor v. State, 44 Okla. Cr. 58, 278 P. 1117. We are satisfied the law on this point is correctly stated in the following cases: Lytton v. State, 12 Okla. Cr. 204, 153 P. 620; Lazenby v. State, 18 Okla. Cr. 83, 192 P. 1103; Smith v. State, 20 Okla. Cr. 301, 202 P. 519; Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, 21 A.L.R. 590; Inman v. State, 22 Okla. Cr. 161, 210 P. 742; Taylor v. State, supra; Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285.”
“Culpable negligence” is not defined by our statute. In Kent v. State, 8 Okla. Cr. 188, 126 P. 1040, 1043, is defined as:
“The want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.”

The term is also defined in Nail v. State, 33 Okla. Cr. 100, 242 P. 270, as follows:

“ ‘Culpable negligence’ is the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.”

In the opinion it is said:

“By no means every instance where one person is injured or killed by a vehicle driven by another do the circumstances constitute a crime. There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence. * * *
“The highways of the state are common property of all, and by whatever method or conveyance they are used for travel, persons upon the highways have equal rights. In exercising these rights, each must have regard for the rights of others. The law gives the right to use the highways for travel by automobile, but this right is limited to doing so in a legal and prudent manner, and when a person drives upon the highway in the exercise of such right in a negligent manner, so that his negligence affects others likewise lawfully upon the highway to their injury, he becomes liable to the injured party, and, if the degree of negligence with which the act is done is culpable within the meaning of the law, he becomes liable to the state for criminal negligence.”

Accidental death to be wholly excusable must have resulted from the doing of some lawful act. Johnson v. State, 59 Okla. Cr. 283, 58 P. 2d 156.

13 Ruling Case Law, p. 863, § 166, reads in part as follows:

“Whether in any particular case the homicidal act was the result of accident must be gathered from all the facts and circumstances surrounding the transaction, and it is peculiarly within the province of the jury to determine this, according to the well settled rules of law.”

It appears from the record that the sufficiency of the information was in no way challenged in the court below. The prosecution was based upon the third subdivision of section 2216 of the Penal Code, 21 Okla. St. Ann. § 701, subd. 3, providing that homicide is murder “when perpetrated without any design to effect death by a person engaged in the commission of any felony.”

The evidence showing, or tending to show, that when the fatal accident occurred the defendant was driving a motor vehicle on a public highway while under the influence of intoxicating liquor, was uncontroverted.

Section 10324, 47 Okla. St. Ann. § 93, makes it unlawful for any person who is under the influence of intoxicating liquor to drive a motor vehicle on any highway within the state, and that any person violating the provisions of this section shall be deemed guilty of a felony, and shall be punished by imprisonment in the penitentiary not more than one year, or by a fine of not more than $2,000, or by both imprisonment and fine.

Section 2223, 21 Okla. St. Ann. § 711, provides:

“Homicide is manslaughter in the first degree in the following cases:
“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.”

It is undisputed that the defendant driving the car in a reckless manner failed to stop and give information after the car struck the little boy, as required by section 10329, 47 Okla. St. Ann. § 104. Section 10330, 47 Okla. St. Ann. § 105, provides that a violation of this section is a misdemeanor.

Upon the undisputed facts in this case it would seem that the demands of justice and the protection of society clearly required that the penalty prescribed by law for the punishment of the crime of manslaughter in the first degree should have been imposed upon the defendant. However, the court submitted the questions of murder, manslaughter in the first degree and manslaughter in the second degree, and the jury found the defendant guilty of the lowest degree. It is the province of the jury, if the defendant is found guilty, to determine and fix the degree by their verdict, and it has been repeatedly held by this court that if the jury in a homicide case find the defendant guilty of a lower degree, where the law and the facts make it a higher degree, it is an error in favor of the defendant of which he cannot complain. Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, 21 A.L.R. 590.

Our conclusion is that the defendant had a fair trial, and that under the evidence he could have been rightfully convicted of a higher degree than he was. Nevertheless, upon the record before us our duty is performed by an affirmance of the judgment. It is so ordered.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    ROY BAKER v. STATE.
    No. A-9325.
    Feb. 11, 1938.
    (76 P. 2d 409.)
    Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Tulsa county with the crime of robbery with firearms, was convicted and sentenced to serve a term of fifteen years in the penitentiary, and he has appealed.

It is contended by defendant, in his petition in error, that the judgment is contrary to law, and that the court erred in failing to sustain his motion for new trial, for the reason that the evidence is insufficient to warrant the verdict, and that the penalty assessed is excessive. Counsel was appointed by the court to defend, and no brief has been filed by the defendant in this case.

The record discloses that the defendant was jointly charged with one Roy Tiner with robbery with firearms. The evidence on behalf of the State shows .that they entered the Sipes Grocery, located at 527 North Denver street, in the city of Tulsa, between 9:30 and 10 p. m., Saturday, August 22, 1936, and by the use of a gun in the hands of this defendant held up and robbed the acting manager, Chester Purcell, of the sum of $71. The proof shows that these parties entered the store together just about closing time, and the acting manager, Chester Purcell, was in a cage which was situated about the center of the store, counting the money. The defendant Roy Baker came close to where Purcell was working and, holding a pistol on him, commanded: “Say, Buddy. It’s a stick-up. Don’t make any funny moves or I’ll burn you down.” Mr. Purcell, who was in the cage near the cash register, began to comply with his request, but attempted to pass up a $20 bill that was in the drawer of the cash register, and the defendant, Roy Baker, with his gun in his hand, said: “Come on; give it all to me; it is insured; it isn’t going to cost you anything.” Mr. Purcell complied with his request, giving him the sum of $71. The defendant then said: “Just go ahead like nothing has happened; when you give me this money, turn around and walk to the back room.” While the defendant was holding his gun on the acting manager, Mr. Purcell, another clerk in the store, Hugh Duncan, looked up and saw the defendant with the gun in his hand holding it on Mr. Purcell. He stepped up to where defendant stood and defendant told him to go back or he would burn him down. He was in about two feet of defendant. Both Mr. Purcell and Mr. Duncan positively identified defendant as being the man who held the gun and robbed them. When the robbery had been completed, the defendant advanced to the front of the store, where he was joined by his co-defendant, Roy Tiner, who had stood in the front part of the store near the vegetable rack while the robbery was being perpetrated. They left and, as they did, Mr. Purcell hollered to other parties in the store that he had been hijacked. Mr. Reed, the butcher in the store, was in the back talking to the night watchman, and they did not know the robbery had been committed until Mr. Purcell informed them. All of these parties saw them leave the building and enter an automobile that was parked near the front of the store. The police were immediately notified, and, after making an investigation at the scene of the robbery, about 11 or 12 o’clock called Mr. Purcell and Mr. Duncan to the police station for the purpose of having them identify a party whom they were holding as a suspect. They could not identify this party and were examining pictures in the office when the defendant, Roy Baker, and his codefendant, Roy Tiner, were brought in by the officers, they having been arrested at a roadhouse out on the Sapulpa road, several miles west of Tulsa. They were immediately identified by Mr. Purcell and Mr. Duncan as the parties who had robbed them a few hours before. They were searched and money was found on them, in their pockets, in their socks, and in the cuff of the pants of Roy Tiner. When the search was in process, the defendant, Roy Baker, remarked: “Part of that money is mine, you want to handle it careful.” They found about $15.44 on both of them.

The proof of defendant was that both of said parties had visited several night clubs and roadhouses between 10 and 12 o’clock when they were arrested, and, while they claimed to be very drunk at the time of their arrest, the testimony of officers and others was that they had been drinking but were not drunk. The evidence of defendant is what is known in law as an alibi. According to his testimony he claimed he did not commit the robbery and was at another place when it was committed and is in direct conflict with the evidence of the state. He says that he had been in company with his codefendant, Roy Tiner, since about 3 o’clock on the afternoon of the robbery; that they had been drinking and about 9 o’clock they went to a restaurant known as the “High Hat Night Club,” and, after remaining there a few minutes drinking beer, Roy Tiner went to his home for the purpose of getting some money; that he returned in about 30 minutes or about 10 o’clock, and they left there and went after some whisky way out on Admiral and Peoria, and then returned to the “Ella Della Cafe” on the Sapulpa road where they were arrested. The defendant was searched at the time, and in his possession was found a .38-caliber pistol. The defendant, Roy Baker, while on the witness stand in his own behalf, testified that he had been previously convicted and served a term of five years in the penitentiary for robbery with firearms, and that he had again been convicted for a violation of the Dyer Act, 18 U.S.C.A. § 408, in the federal court, which was for transporting a stolen automobile across a state line, and had been sentenced and served a term of two years in the federal prison at Leavenworth. He also testified as follows:

“Q. Roy, do you have any way of telling this court and jury how many times you have been arrested and put on investigation? A. I don’t; I couldn’t count them. Q. A great many times, or just a few times? A. Several; so many that I couldn’t count them.”

From an examination of the testimony as above stated there can be no doubt as to its sufficiency. The jury heard defendant’s alibi, and saw and heard the witnesses in this case, and we find no error in the trial. The defendant was given a fair and impartial trial, and the judgment of the district court of Tulsa county is therefore affirmed.

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


text:
    ROY TINER v. STATE.
    No. A-9324.
    Feb. 11, 1938.
    (76 P. 2d 411.)

      Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of robbery with firearms in the district court of Tulsa county, was tried, convicted, and sentenced to serve a term of fifteen years in the penitentiary, and has appealed.

This is a companion case of Roy Baker v. State, 64 Okla. Cr. 10, 76 P. 2d 409, this date decided by this court. Said defendants were charged jointly with robbery with firearms. A severance was taken, and the evidence was practically the same in both cases. The defense of defendant was that of an alibi. The defendant was identified by witness, Fred Reed, as being one of the parties who entered the store with Roy Baker and assisted in the robbery of the acting manager, Chester Purcell. Mr. Reed had known him for some time and had worked with him when they were employed by Swift & Co. Immediately after the robbery was committed he called the police and gave them the name of Roy Tiner as being one of the parties who had participated in the robbery. He also testified that he had seen the defendant standing in front of the store about closing time a few nights before the robbery occurred. Defendant was arrested a few hours after the robbery was committed in company with his codefendant, Roy Baker. His testimony showed that he had been with him all the afternoon, and had only been away from him once, a short while just prior to the robbery, when he had gone to his home, and then returned to the “High Hat Night Club,” where he again met his codefendant, Roy Baker. When he was arrested by the officers at the “Ella Della Cafe” on the road to Sapulpa, he was brought to the police station and, although he was not positively identified by Mr. Purcell and Mr. Duncan, yet their description of him, and their identification of him, when coupled with the testimony of Mr. Reed, who positively identified him, was sufficient, if believed by the jury, to convict the defendant of the crime charged against him. The jury heard his alibi and decided against him.

Defendant insists that the punishment assessed by the jury is excessive. We have carefully examined the record and do not see any reason why the punishment should be decreased in this case.

The judgment of the district court of Tulsa county is therefore affirmed.

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


text:
    HOMER BUFFALOHIDE v. STATE.
    No. A-9322.
    Feb. 18, 1938.
    (76 P. 2d 914.)

      L. A. Justus, Jr., of Pawhuska, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Paw-huska, for the State.
   BAREFOOT, J.

The defendant was convicted of the crime of perjury in the district court of Osage county, was sentenced to serve a term of two years in the penitentiary, and has appealed.

At the outset of this case we are confronted by a motion filed by the state to dismiss this appeal, for the reason that the case-made and record does not contain a copy of the judgment referred to in the petition in error, nor of the journal entry of the judgment and sentence from which an appeal is attempted to be taken. This motion was filed in this court on the 17th of November, 1937, and an affidavit attached thereto shows that a copy was mailed to the attorney for defendant at his proper address on the same date. Since this case was submitted for the consideration of the court, members of the court have written two letters to the attorney for defendant, calling his attention to this motion, and requesting him to file a response to the motion to dismiss, or appear before the court and give information as to whether a judgment and sentence had been rendered in this case, to the end that the case-made might by this court be returned to the trial court for the purpose of correcting the same, so that any judgment or sentence rendered against this defendant could be shown therein. No response has ever been filed and no appearance made before the court. Under section 535, Okla. Stat. 1931, Okla. St. Ann. tit. 12, § 959, p. 354, we have the right, on our own motion, to return the case-made for correction, as has been recently held in the case of Lewis v. State, 63 Okla. Cr. 320, 75 P. 2d 480, rendered by this court on January 7, 1938. We presume that the record of the court clerk of Osage county shows no judgment, and for this reason no response was filed or appearance made. The case-made filed in this court does not show any judgment and sentence to have been entered. No minutes appear in the record showing the motion for new trial to have been overruled and defendant thereafter sentenced. In an early case of Earl Howard v. State, 2 Okla. Cr. 563, 103 P. 663, this court held:

“The decision of the court is the judgment, and the entry by the clerk is the evidence of it.”

The court holding that the minutes of the clerk were sufficient. But in the case at bar there is no judgment shown by the record, nor by the minutes of the court. It therefore follows that the motion to dismiss the appeal should be sustained in this case.

We will state that this court does not favor the dismissal of appeals in criminal cases on technicalities. If the defendant or his attorney had filed a response to the motion to dismiss, and could have shown that a judgment had been rendered against the defendant, we would have permitted the withdrawal of the record, and a correction made thereof to show the actual judgment rendered. However, in dismissing this appeal we desire to state that we have carefully read the record and find no fundamental error was made in the trial thereof. The evidence was sufficient to sustain the judgment, the information was in proper form, and the instructions of the court properly submitted the issues to the jury, and the defendant was given a fair and impartial trial.

For the reasons above stated the appeal in this case is dismissed.

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


text:
    Ex parte DELLA HUBBARD.
    No. A-9445.
    Feb. 18, 1938.
    (76 P. 2d 915.)
    A. C. Brewster, of Pryor, for petitioner.
    Mac Q. Williamson, Atty. Gen., Owen Watts, Asst. Atty. Gen., and H. A. Kehn, Co. Atty., of Pryor, for respondent.
   DOYLE, J.

In this proceeding petitioner, Della Hubbard, filed in this court February 9, 1988, a petition wherein she alleges that she is unlawfully restrained of her liberty and imprisoned in the county jail of Mayes county by Walter Panter, sheriff of said county; and that her unlawful confinement and detention consist in this, to wit: That by information filed in the district court of said county she is charged with the crime of murder. That on a habeas corpus proceeding in the district court of said county, N. B. Johnson, district judge, denied bail and remanded petitioner to the custody of said sheriff.

Petitioner further alleges that she is not guilty of the crime of murder as charged, and that on the evidence introduced before the committing magistrate, justice of the peace, W. F. Graham, of Pryor, there was no legal or competent evidence to sustain such charge, or to sustain the order to hold her for trial before said district court.

Upon the evidence introduced at her preliminary examination, together with the affidavit of certain other persons presented herewith, it is shown that the proof of guilt of the crime of murder is not evident, nor the presumption thereof great, and therefore the petitioner is entitled to be let to bail pending the trial of said charge.

The right to furnish bail by sufficient sureties arises in favor of any person accused of crime, and before conviction, absolutely, and without exception, in cases of all crimes not punishable with death, and in capital cases when the proof of guilt is not evident or the presumption thereof not great.

In Ex parte Womack, 62 Okla. Cr. 290, 71 P. 2d 494, we said:

“The filing of information charging capital offense, where defendant has not been admitted to bail, is prima facie evidence that proof of guilt is evident and presumption thereof great, and burden is on defendant seeking bail to establish the contrary.” Ex parte Lacy, 20 Okla. Cr. 440, 203 P. 1050; Ex parte Andrews, 39 Okla. Cr. 359, 265 P. 144; Ex parte Cooper, 57 Okla. Cr. 88, 45 P. 2d 548.

The information in this case in substance charges that Roy Kinion and Della Hubbard did, on the 4th day of December, 1937, in said county, with a long wooden pole, held in the hands of each of them, with a premeditated design to effect the death of said Ralph Hubbard, strike and beat him and thereby placing him in an unconscious condition, and then and there by putting him in a shallow stream of water, thereby causing his death by drowning.

Upon this application further testimony was heard, including the testimony of petitioner before this court on February 15th, and after argument of counsel the cause was submitted.

Since the weight and effect of all the evidence will be submitted to a jury, and should be so submitted without an intimation from this court, or the trial court, as to its probative force, we refrain from expressing our views, so far as it relates to the weight and credibility of the evidence.

Upon a consideration of all the evidence presented, we have reached the conclusion that on the undisputed facts and circumstances in evidence the petitioner is entitled to be admitted to bail, and that her bail should be fixed in the sum of $5,000.

It is therefore ordered that petitioner, Della Hubbard, be, and she is hereby admitted to bail upon the charge of murder now pending against her in the district court of Mayes county, and that her bail be and the same is hereby fixed in the sum of $5,000, and that she be released from custody upon the executing and causing to be filed with and approved by the clerk of said district court a good and sufficient bond in said sum, conditioned as required by law.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    HAMON MACKLIN v. STATE.
    No. A-9336.
    Feb. 25, 1938.
    (76 P. 2d 1091.)

      B. C. Franklin, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Holly L. Anderson, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of murder in Tulsa county, was tried, convicted, and sentenced to serve a life term in the penitentiary, and has appealed.

At the outset of this case we are called upon to pass upon a motion to dismiss the appeal for the reason that no notice of appeal was served upon the county attorney and court clerk as required by law. The record as filed herein does not show that any written notice was served upon the county attorney or court clerk of an intention to appeal. Counsel for defendant, when served with the motion to dismiss this appeal, filed a response to which is attached an affidavit in which he states that he served a written notice of appeal on the assistant county attorney on the 24th day of November, 1936, three days after the motion for new trial was overruled, and that on the 1st day of May, 1937, he served a written notice upon the court clerk of Tulsa county of his intention to appeal from the judgment of the court overruling the motion for new trial November 21, 1936. He attaches to his response a copy of the notice which he claims to have served on the county attorney and the court clerk. No denial is made of these affidavits. Under Okla. Stats. 1931, § 535, Okla. St. Ann. tit. 12, § 959, p. 354, this court would have authority to return the case-made to the trial court for the purpose of having the same corrected to speak the truth as set out in said affidavit, but we find that this case had been briefed; that the defendant was given a life term; that he had no funds to employ a lawyer to defend him, and the court appointed counsel which the record shows received $10 for his services. Under these circumstances, we are of the opinion that the motion to dismiss the appeal in this case should be denied and the same/ should be considered on its merits.

It is contended by defendant that the court erred in permitting to be introduced certain evidence which was irrelevant, incompetent, and immaterial, and that the evidence was insufficient to sustain a conviction. It is disclosed by the record that the deceased, Walter Scott, a negro, was engaged in running a barbecue stand and beer garden at 311 North Greenwood street, in the city of Tulsa, on and before July 3, 1936. He lived at 311 East Easton, which was about three and a half blocks west of his place of business. On the night of July 2, 1936, the defendant, Hamon Macklin, who was also known as James Brown, was at this place of business on several different occasions. He was seen there by several parties and was dressed in striped bibbed overalls with another pair of pants under them, and having in his possession a black or blue steel revolver which he was brandishing at different times. When asked by one of the witnesses for the state about the gun, he said: “I always keep one of those for protection.” He was seen there about 11:30 or 12 o’clock and again some time between 2:30 and 3 a. m., on the 3d day of July, 1936. The deceased left his place of business and started to his home about 2:30 or 3 a. m. He was shot to death and robbed in an alley near his home shortly after leaving his place of business. He was shot three times, one time in the head near the right ear, once in the neck, and once through the heart. The doctor testified that either of these shots would have produced death.

A girl by the name of Ophelia Hughes testified that she lived just across the street from where deceased lived, but on the night of the homicide she was staying at the home of Mrs. Bell with whom deceased lived; that she was sleeping in the northeast room upstairs near the alley, and about 10 or 12 feet from the ground or pavement; that about 4 o’clock a. m. she was awakened by the report of a gun in the alley which she at first thought was the firing of a firecracker. She went to the window and saw deceased lying on the ground with some fellow stooping over him; that she got excited and ran into the front room of the house and when she came back deceased was still lying there and the fellow was going up the alley. She testified that she heard two shots after the first shot was fired. She could not identify the party whom she saw, and could not give an accurate description of him because it was too dark.

Soon after this happened the police came to make an investigation. The deceased’s head was lying in the dirt just off the pavement. His pockets were turned wrong side out. Police Officers C. W. White and A. K. Goldman made the investigation. They were called at 4:09 a. m. These same officers, about 6 or 6:30, arrested the defendant in the 600 block on Archer street, just as he was entering the LaFayette Hotel. He was dressed in a light gray suit and white shirt. After arresting defendant, who was with a boy by the name of Hawkins, they went to the home of Arthur Bell, and from there to the home of Joe Carr. They secured from Joe Carr a .38 caliber S & W pistol, which they took to the police station, and which was afterwards turned over to Mr. Andrew Moore, ballistics expert for the police department.

Arthur Bell testified that the defendant came to his house between 5 and 6 o’clock on the morning of July 3, 1936, and while he was in bed; three other parties were with him, one being a boy by the name of Hawkins, and two others whom he did not know. The defendant said to the witness that he wanted to speak to him, and the witness replied, “Go ahead and tell me,” and defendant said, “I want to get $2 on this gun,” and witness said, “I haven’t got any money,” so that was all that was said. The defendant showed him the gun; it was a black or blue steel .38 caliber S & W, and the witness identified the gun introduced in evidence as the gun defendant had shown him upon this occasion.

Joe Carr testified that defendant, in company with other parties, whom he did not know, came to his house about fifteen minutes to 6 o’clock on the morning of July 3, 1936; that defendant had a revolver and asked him to let him have 50 cents on it. He said he would be back later that day and get it. He let him have the money and took the gun and put it under his pillow and it was a black or blue steel .38 caliber S & W, and was the same gun he turned over to the officers a little later. He said the defendant was dressed in a gray suit.

Witnesses were offered on behalf of the state who had found a bullet imbedded about 14 inches in the ground at the spot that deceased’s head was lying at the time he was found in the alley. This bullet was recovered on the 6th day of July, 1936, and was immediately turned over to the police department.

The state offered in evidence a witness, Andrew Moore, who qualified as a ballistics expert. The gun which was recovered from the witness Joe Carr by the police officers about 6 a. m., on the morning of July 3, 1936, was turned over to Mr. Moore about 9 a.m., on the morning of the 4th day of July, 1936, and the bullet found buried in the ground near where the body of deceased was found was turned over to him on July 6th.

It is contended that the court erred in permitting the witness, Andrew Moore, to testify as an expert witness. He testified that he had had four and a half years experience, and that he was now employed in the science laboratory of the police department of the city of Tulsa; that for several years he had a private laboratory; that he had made over 100 tests; that he had testified in 25 or 30 cases; that he had studied and made many tests involving the science of photography, and that his laboratory was equipped to test for blood; that he examined the gun introduced in evidence and turned over to him by the police department, this being the same gun that defendant had given to the witness, Joe Carr, and had also examined the bullet which was found in the ground where deceased had been shot, and also the test bullets which were fired by the witness; that he applied chemical tests to the surface of the bullet of the “evidence” bullet to determine whether blood was present on the surface, and found a reaction which showed that blood was present. His examination of the gun showed that it had been recently fired. This was also testified to by the police officers. He found the bullet to be an all-lead bullet of .38 caliber, known as a “38 special,” weight 158 grains, and in his opinion was of Remington make. He made photographs of the bullets and also of the comparison microscope used in making examinations, and they were introduced in evidence, together with the bullets, and are attached to the record now before this court. The jury were permitted to examine the bullets through the microscope. The tests were made by mounting the “evidence” bullet under one objective of a comparison microscope, and one “test” bullet under the other objective, and an examination made of their similarity under the comparison microscope which is designed for that purpose. His examination was as follows:

“Q. (By Mr. Anderson) Now then, continue with the examination of the witness. A. Now, in my examination of defendant’s exhibit 1, or the evidence bullet, I searched for characteristic markings on the surface of that bullet which are peculiar to the gun from which it was fired, as distinguished from the markings which any .38 calibre Smith and Wesson gun would make. The markings that I mention are designated as secondary markings, or accidental markings. The primary markings or — or factory markings we might say are the number of rifling grooves that the bullet shows, the direction of the rifling as it exists on the bullet, and the size of those riflings. And then, above and beyond that, a search is made for striations or cuttings which are made on the soft surface of the bullet due to its passage through the barrel and being in contact under pressure with the steel surface of the barrel. Now, in this particular case I found parallel striations which are not produced by just any Smith and Wesson .38 calibre special revolver. Q. Just a minute. Will you point out on the photograph there what you mean by striations? A. Now, these are the ones that I am referring to, the two straight little marks as though two little steel fingers are raked across it. Q. Those are secondary markings, are they? A. Yes, those are secondary markings, and accidental, and beyond the control of man, is what the condition is there. Q. All right, go ahead. A. The location of markings such as I have pointed out here are the key marks of identification. They are the guide which I used in searching for the same condition on test bullets. I know that the existence of those marks are accidental, and if I find them on one or more test bullets fired through a suspected gun that is indicative to me of similarity of origin of all the bullets, evidence bullets and test bullets. In this case when I located the marks I have mentioned I placed the bullet under the comparison microscope with those in the position where they would be most easily seen and then made a search on test bullets for markings located exactly the same. Q. Then your other photograph there is a comparison photograph? A. That is correct. After I had located one of the test bullets which showed similar markings I adjusted the instrument so that they would be in coincidence, so that they would just tally, the striations across the entire field. This photograph then is a comparison, the best comparison which I found, to use as a basis for an identification between the two bullets which I had under observation. This broader line right here, or this slotted condition, is due to the common markings of any revolver of this type, and are not, of course, particularly this gun. However, the area within the borders of the rifling grooves show the accidental characteristics which identify the two bullets as having been fired from the same, or from one gun, and that is what this photograph is, as near as I can explain it. Q. And it does show that? A. Yes, sir, it does show it.”

On cross-examination the witness testified that in his study and preparation for his training as a ballistics expert he had studied Charles Gunther’s text-book known as “Text Book of Small Arms,” as prepared by the British War Office, and the material that Dr. Hounds Cross has written on the subject; also general papers and technical papers and various authorities; “Pistols and Revolvers,” by Julian Hatcher; and the text-book known as “Recent Advances in Forensic Medicine,” which contains a large portion on firearms examinations; “Science versus Crime,” by Henry Morton Robinson, and other authorities. The cross-examination revealed the same testimony as given on direct examination.

There were few decisions with reference to the introduction of expert testimony to identify the weapon from which a shot was fired until recent years, but the science of ballistics is now recognized as one of the best methods in ferreting out crime that could not otherwise be detected. Expert evidence to identify the weapon from which a shot was fired is generally admitted under the rules covering other forms of expert testimony, and it is the modern tendency of the courts to allow the introduction of such testimony, where the witness’ preparation as shown by experience and training qualifies him to give expert opinion on firearms and ballistics tests. In our opinion the witness in this case showed such qualifications.

The recent case of William Evans v. Commonwealth, 230 Ky. 411, 19 S.W. 2d 1091, 1096, 66 A.L.R. 360, full and complete note page 373, gives a full, complete, and interesting discussion of this question and is very similar to the case at bar. The notes in 66 A.L.R. at page 373 cite the cases from many states in which this question is fully discussed. In the body of the opinion in the Evans Case, supra, the court says:

“Ordinarily a witness is said to testify as an expert when a state of facts, observed by some one else, is hypothetically submitted to the witness, and he is asked, in view of those facts, to state what his opinion is, whereas a man skilled in a particular business, who makes his own observations, and testifies to what he has observed and his conclusions therefrom is regarded as a skilled witness. He occupies the same position as any other witness, except that it is recognized that within certain lines he possesses a superior knowledge which enables him to understand, as one without such special knowledge could not, what he has observed.”

We are of the opinion that the witness in the instant ease showed himself qualified to testify as an expert on ballistics and the court did not err in permitting this evidence to be presented to the jury. Collins v. State, 15 Okla. Cr. 96, 175 P. 124; Commonwealth v. Best, 180 Mass. 492, 62 N.E. 748; State v. Boccadoro, 105 N.J.L. 352, 144 A. 612; Laney v. United States, 54 App. D.C. 56, 294 F. 412; State v. Casey, 108 Ore. 386, 213 P. 771, 217 P. 632; Pemberton v. State, 55 Tex. Cr. R. 464, 117 S. W. 837; State v. Vuckovich, 61 Mont. 480, 203 P. 491; People v. Weber, 149 Cal. 325, 86 P. 671; Galenis v. State, 198 Wis. 313, 223 N.W. 790.

The defendant, testifying in his own behalf, on direct examination said that he formerly stayed at the LaFayette Hotel, but that on the 2d and 3d of July, 1936, he was staying at a rooming house at 130 North Greenwood, which was operated by Maydell Love, and at which a friend of his, Elijah Brooks, was sick and he was staying with him; that he was in his room until about 15 minutes until 12 o’clock on the night of July 2d, at this time he went to get a glass of beer and went to the place of business of Walter Scott the deceased, and while there he stole a pistol that was laying on a table; that he returned to the room of Elijah Brooks about 12:30 o’clock and remained there until about 5 a. m.; that he had received a suit of clothes from the cleaner about 6:30 p. m.; and that he put on these clothes at that time and had worn them all the time, and had them on later when he was arrested. He denied having on a suit of bibbed overalls at any time during the evening. When he left his home at 5 a. m. on the 3d of July, 1936, he said it was for the purpose of going to Mr. Hunter’s to get medicine for his friend, Elijah Brooks; that when he got on the streets he met .a man by the name of McMurray, who asked him to go in his car for the purpose of getting a drink; that he had in his possession the .38 caliber S & W blue or black pistol' which he had stolen from the place of business of the deceased, Walter Scott; that two other people were in the car and that they drove to the home of Tommie Jones for the purpose of trying to pawn the pistol, and that he afterwards went to the home of Arthur Bell, and from there to the home of Joe Carr, who let him have 50 cents and took the pistol; that he then returned to the LaFayette Hotel and was arrested by the officers between 6 and 7 a. m. On cross-examination he admitted that he had been previously convicted and served two terms in the penitentiary. He admitted stealing the gun at the place of business of the deceased. He also admitted that he made no attempt to get the medicine, although he passed within a block of where Hunter lived. He admitted making two written statements to the officers after his arrest, one on July 3d and one on July 6th. The statement of July 3d was introduced as a part of his cross-examination. In this statement it was revealed that at that time he denied going to the home of Tommie Jones, Arthur Bell, and Joe Carr; denied that he had ever owned a pistol, or that he had offered to pawn one to Arthur Bell, and that he had turned a pistol over to Joe Carr. In this statement he also stated that he had left the room of Elijah Brooks about 10:30 p. m., on the night of July 2d, and did not return there again that night. The statement made on July 6th in many ways corroborated the statement made on July 3d. These statements and the statements that he made to the officers and others were in direct conflict with his testimony upon the issues that were very material in the trial of this case. One witness testified to seeing him leave the room of Elijah Brooks about 2:30 on the morning of the 3d of July, and at that time he was wearing striped bibbed overalls of the same description that witnesses testified he wore when at the place of business of the deceased at 10:30 p. m. and 2:30 a. m. the night of July 2d, and morning of July 3d. He also testified that at that time he had what he thought was a gun in the waist of his overalls.

From the above statement of the evidence, it will be seen that the jury who saw and heard the witnesses and observed their demeanor on the witness stand were fully-justified in returning the verdict of guilty against this defendant.

We have carefully examined the information, the instructions of the court, and find that defendant had a fair and impartial trial, and the judgment of the district court of Tulsa county is therefore affirmed.

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