text:
    EARL CLOTHIER v. STATE.
    No. A-7326.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 627.)

      J. P. Wishard, for plaintiff in error.
    J. Berry King, Atty. Gen., for the .State.
   DAVENPORT, P. J.

The plaintiff in error, Earl Clothier, was jointly informed against with James Dem-mitt, Charles Demmitt, and Ray Demmitt; was tried separately and convicted of larceny of domestic fowls in the nighttime; and sentenced to be confined in the state penitentiary at Granite for a period of three years, from which judgment the defendant has appealed.

The testimony on behalf of the state in substance is as follows:

A. A. Thurman, the prosecuting witness, testified:

“I live in Okeene, Blaine county, Okla. On the 4th day of March, 1928, I had 26 hens and one rooster. I counted the chickens on the 4th day of March, 1928, before I turned them out, and started to work. On the 14th of March, 1928, at McComas Produce House, in Garfield county, I discovered my chickens. I went to Enid and recognized the Demmitt boys who lived about four and one-half miles from me. The defendant had been arrested and was in jail at Enid with the Demmitt boys. I returned my chickens to my home and they went to roost in a coop; I positively identified the chickens that I missed on the 4th day of March, 1928. I belong to an organization and people contributed to the organization which had for its object the prosecution of cases like this one.”

Paul Kreie testified:

“I am a produce dealer at Waukomis. Charles Dem-mitt and Earl Clothier brought to my place, on the 13th of March, 1928, a number of chickens. It was at the noon hour. The chickens were brought in a Chevrolet roadster, and was loose in the rear end. I paid for the chickens with a check made payable to J. B. Johns. The defendant in this case did not take the cheek; the check sho ws to have been paid on the 14th day of March, 1928.”

Don Parker testified as follows, for the state:

“I am an employee of the Home Oil Company, of Waukomis, and was on the 14th day of March, 1928. At noon Earl Clothier asked to1 call up the produce man.”

Charles Allen stated:

“I am a deputy sheriff. I know the defendant. I knew him on the 14th of March, 1928. Clothier lived southeast of Enid. I made the arrest of Earl Clothier and the Demmitt boys. Clothier told me to come to Enid on the Lahoma road instead or the Waukomis road. After he understood the question he told me he came in on the Waukomis road; said the chickens were gotten down to the Demmitt boys’ mother’s place. Clothier said he went to the Demmitt home from Enid on the 11th day of March, 1928. I searched the Demmitt boys and Clothier and got $82.00 or $33.00.”

On cross-examination witness stated he got $20 from Earl Clothier, and maybe some change and that he had never arrested Clothier before.

B. B. Bridgeford testified the chickens were brought to .town and were turned over to A. A. Thurman.

At the close of the testimony of B. B. Bridgeford, the state rested. The defendant demurred to' the evidence, for the reason that there is nothing shown that he was present or had anything to do with the stealing of the chickens on the 4th day of March, 1928, or at any other time; that the only connection shown was that he helped sell the chickens in Waukomis, Okla., on the 13th or 14th day of March, 1928. The demurrer was overruled and the defendant duly excepted.

Tbe state then asked to- reopen the case and introduce further testimony, to which the defendant objected. The court granted the state leave to reopen the case for further testimony, and defendant excepted.

William Broady and Charles Julias were called on behalf of the states and testified that they were down to-the Demmitt place on the morning of the 13th of March, 1928; that the Demmitt boys and another boy by the name of Earl Clothier drove out to the Demmitt farm lot as they drove in. The witnesses admitted that they belonged to an organization for the prosecution of the state cases such as the defendant was being tried for, and that they had contributed money to, and were interested in, said case.

The defendant, Earl Clothier, as a witness in his own behalf, testified that, prior to the 10th day of March, 1928, his home was at Chester, Okla., in the western part of Major county; that he had lived on the farm 14 years. The defendant admitted that he was acquainted with the Dem-mitt boys; that these boys used to live on a farm near where the defendant lived; that they had left the Chester neighborhood, but had visited back and forth once in a while, there being probably six months or a year between the visits. The defendant further stated as follows:

“On the 9th or 10th of March, 1928, I was going to Enid from the farm to get a job of work. Enid was closer to Chester than Oklahoma City. I had $25 I had borrowed at the First National Bank at Soiling. I got this money by having my father sign the note with me. My brother took me to Enid on the 10th of March, 1928, which was Saturday. I met the Demmitt 'boys in Enid Saturday evening, and the Demmitt boys asked me to go out to- their place. I went out to the Demmitt home, and was there all that evening. I did not steal these -chickens or have anything to do- with the stealing of them, nor did I accompany any one who did steal them. On Monday we worked on a car; Monday evening we stayed at the Demmitt home. We did not steal any chickens on Monday night. The Demmitt boys’ mother gave them some chickens so they conld get some money to go on a trip to hunt work. At that time I did not know anything about the stealing of chickens of any kind. I got in the car with the Demmitt boys and started to Enid. They stopped at Waukomis because the chickens were hot and the Demmitt boy sold the chickens and the check was made to him. I do not know why Charles Demmitt told them to write the check in the name of J. R. Johns and I do- not know what became of the money. I got no part of the proceeds of the sale of the chickens, and had nothing to do with either the stealing or selling of the chickens.”

A. C. Clothier testified that he was the father of Earl Clothier; that the Demmitt boys had formerly lived out near his home.

“I helped my boy Earl get $25.00 from the First National Bank of Seiling, Oklahoma, on the Saturday before he went to Enid on the 10th. I paid the note to the bank. Earl was at home; came home on the 4th of March, 1928.”

Mrs. A. C. Clothier, Earl’s mother, testified to practically the same as his father: On the 10th of March she took Earl to Enid to look for work. He had $25 that he had borrowed at the bank. iShe and Earl went to Enid on Saturday, and she remained over in Enid 'Saturday night and returned home Sunday morning.

Ralph Clothier, a brother of the defendant, testified:

“I lived at Isabel. I lived there a year. I am married and have a family. On or about the 3d day of March, 1928, I had the flu and sent for my brother to come and take my place. He worked on Saturday and Sunday, and stayed at my home and spent the evening and night there, and weht back to' his father’s home on Monday.”

Seymour Cuyler, M. C. iShook, W. M. Fields, Walter Harrison, and Harry Plummer all testified to having known the defendant a number of years and that they lived in or near the community where the defendant lived, and stated that his reputation for being an honest and law-abiding citizen was good.

Ted Woods testified to seeing a copy of the note that was signed by Earl Clothier and A. C. Clothier.

This is in substance the testimony. The defendant has assigned several errors alleged to have been committed by the court in the trial of this case. The first assignment of error alleged to have been committed is that there was error committed in overruling the demurrer of the plaintiff in error to the information heretofore filed in said cause against said plaintiff in error. After a careful reading of the information, we hold that the said information stated facts sufficient to advise the defendant of the charge against him, and the court did not err in overruling his demurrer to the information.

The fourteenth assignment of the defendant is as follows :

“The court erred in not sustaining a motion for a new trial filed by the plaintiff in error, and overruled said motion for a new trial, to which the plaintiff in error duly excepted at the time.”

Under this assignment all of the assignments of the defendant not heretofore discussed may be grouped, as they relate to the action of the court in the trial of the case, the admission of evidence, and the question as to whether or not the evidence is sufficient to sustain a sentence of guilty of larceny of domestic fowls in the nighttime.

The defendant in this case appeared at the Demmitt place on the 11th of March, 1928, where the chickens were that were identified by the prosecuting witness, Thurman. The defendant did not deny that he went from the Dem-mitt place to Waukomis, with the Demmitt boys, where the chickens were sold.

The testimony further shows that the defendant had a party at a filling station call the produce dealer to ascertain if he was in, in order that they might sell the chickens. After the chickens were sold, the record further tends to show, the produce dealer 'became suspicious and followed the boys out of town, learned the way they had gone, and ’phoned to Enid to the sheriff, who arrested the Demmitt boys and the defendant.

The defendant had about $22.75 on him at the time he was arrested. He insists that he had borrowed $25 on the Saturday before from a bank at Seiling, Okla., and calls his mother and father to testify to that fact. No official of the bank where he claimed he borroived the money was called as a witness.

The testimony further tends to show that, when the chickens were sold, the check was made payable to another name, and not the name of the defendant or the Demmitt boy who was with him.

The circumstantial evidence in this case points to the fact that the defendant was mixed up in the taking of these chickens, that the defendant knew the chickens were stolen, and assisted in the further asportation of the stolen chickens by assisting in taking them to the place where they were sold, and by reason of this action he was guilty of aiding and abetting in the larceny of the chickens.

In Reed v. State, 22 Okla. Cr. 141, 210 Pac. 311, 313, this court said:

“One who joins in with the thieves and assists in the asportation and disposal of stolen property, knowing at the time be does so that the others acting with him are in the very act of carrying away the property of another, must be held guilty as a principal.” Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263.

Applying the rule laid down in Reed v. State, supra, to the evidence in this case, the evidence is amply sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial. No errors appear in the record of sufficient merit to warrant a reversal. The judgment is affirmed.

EDWABDiS and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWABDS, J.

license: Public Domain

text:
    Ex parte LEE BAILEY.
    No. A-8072.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 998.)
    Tichenor & Bristow, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   EDWABDS, J.

This is an original proceeding in ha-beas corpus. Petitioner alleges that he was convicted in the county court of Cleveland county for a violation of the prohibitory law and was sentenced to' serve a term of 30 days in tbe county jail and to pay a fine of $50; that be bas served said sentence of 30 days. That be gave a stay bond for tbe payment of tbe fine and costs under tbe provisions of section 2997, Comp. Stat. 1921, which is:

“Upon conviction, or plea of guilty of misdemeanor, tbe defendant may stay tbe collection of tbe fine by giving good and sufficient bond, with two or more sureties to-be approved by tbe court, conditioned that tbe defendant will pay tbe fine and costs witbin 30 days from tbe date of tbe judgment: Provided, that if tbe defendant is sentenced to pay a fine and be imprisoned, tbe bond shall be conditioned to pay tbe fine and costs witbin 30 days after tbe end of tbe term of imprisonment. Tbe court shall require the sureties on tbe stay bond to- justify as in other cases.”

That thereafter, tbe fine and costs not having been paid, petitioner was committed to- tbe county jail to- serve out tbe amount thereof. Petitioner contends that, after tbe stay bond was given, it was a payment, and tbe bond became a civil obligation only.

Tbe contention cannot be sustained. The execution of a stay bond under tbe provisions of section 2997, supra, is not a payment of tbe fine and costs, but merely a stay or suspension of tbe payment for a term of 30 days upon tbe conditions enumerated.

Section 2998, Co-mp. Stat. 1921, is in part:

“If tbe defendant, on conviction, or plea of guilty to a misdemeanor, fails to pay or secure tbe fine and costs, as before provided, or if after staying it be shall fail to- pay, be shall be committed until be shall have served out the amount thereof.* * *”

Where a defendant is convicted of a misdemeanor and executes a stay bond and then fails to pay the fine and costs so' stayed, it is tbe duty of tbe proper officer to commit the defendant until the fine and costs shall be discharged by imprisonment- or shall have been paid.

The writ is denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    I. S. EVANS v. STATE.
    No. A-7521.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 1115.)
    B. F. Van Dyke, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of selling whisky, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The testimony for the state is that at the time charged defendant delivered to one Irene Hill a half gallon of whis-ky for the purpose of her delivering the same to one Mc-Carter. She was apprehended by a deputy sheriff who seized the whisky. Complaint is made that the court too closely restricted the cross-examination of the witness Irene Hill in not permitting the defense to show her interest in the case. There is some merit to the contention, but upon the whole record the guilt of defendant is so apparent that this error does not require a reversal. It is also insisted that the giving of an instruction on alibi was error. Defendant testified that lie was at the place where the witness Irene Hill testified she procured the whisky, but that she did not come to that place and he did not see her. This is in effect a defense of alibi; it amounts to testimony that defendant was at a different place from that where the whisky was obtained. There could have been no prejudice in the instruction.

The case is affirmed.


text:
    Ex parte FRANCIS OWENS.
    No. A-8071.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 1117.)
    Moman Pruiett and E. E. Hodgins, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in ha-beas corpus. The petitioner alleges that he is unlawfully restrained by the sheriff of Oklahoma county; that heretofore petitioner was charged before a committing magistrate with the crime of riot; a preliminary hearing was had, and petitioner was held for the action of the district court; that there is no evidence tending to prove probable cause to believe petitioner guilty of the offense charged. Attached to the petition is a transcript of the testimony taken before the committing magistrate. Prom a careful consideration of this evidence, we are constrained to find that there is no' substantial evidence to prove probable cause that petitioner is guilty of riot and that he should be discharged.

The writ is granted, and petitioner discharged.


author: CHAPPELL, J.

text:
    A. E. PINNICK v. STATE.
    No. A-6994.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 507.)
    W. B. Richards, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the crime-of embezzlement, and his punishment fixed by the jury at imprisonment in the state penitentiary for two years.

On the 25th day of January, 1930, this court handed down an opinion (48 Okla. Cr. 250, 290 Pac. 1113) modifying and affirming the case, and in due time thereafter a petition for rehearing was filed and denied. Thereafter defendant was given leave to file a second petition for rehearing, and in such petition earnestly contends that the case must be reversed because the evidence is insufficient to support the verdict of the jury, and for the further reason that the evidence tends tO' establish the relation of debtor and creditor between tbe defendant and the prosecuting witness.

It appears from the evidence that the defendant was an attorney at law, having, offices at Yale, Okla.; that the prosecuting witness was the owner of a business building and rooming house in the town of Yale, and that he employed the defendant to rent the rooming house, collect the rents, purchase and furnish supplies for the rooming house, pay for repairs and for water and gas, and to' appear as attorney for the prosecuting witness in certain cases, which expenditures were all to be deducted from the rents collected, and that defendant was entitled to be reimbursed for his services as attorney, for his commissions for collecting the rents, and for the repairs, supplies, water, and gas purchased for the prosecuting witness out of the funds so collected before paying the balance over to the prosecuting witness.

It further appears from the evidence that, in pursuance of such employment, defendant collected certain rents and deposited them in certain banks in Yale, in his own name, and wrote checks thereon. Among the checks written was one for $84.25, which defendant never presented to' the bank upon which it was drawn.

Defendant was charged with embezzlement of $81.50. The proof was that the defendant received this check and deposited it to his personal account. Considering the nature of the defendant’s employment and the manner in which the business was handled, and considering the further fact that defendant had on deposit more than sufficient funds to' take up the check for $81.50, the proof of the state was insufficient to' show a fraudulent intent on the part of the defendant to embezzle the moneys, as alleged in the complaint.

This court has repeatedly held that, where the evidence is insufficient to support the verdict of the jury, it is the duty of this court to reverse the case. Owens v. State, 11 Okla. Cr. 113, 143 Pac. 204; Taylor v. State, 36 Okla. Cr. 419, 255 Pac. 158.

The evidence being insufficient to* support the verdict of the jury, the cause is reversed.

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


author: EDWARDS, J.

text:
    R. E. HILL v. STATE.
    No. A-7557.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 508.)
    H. A. Johnson, for plaintiff in error.
    1 J. Berry King, Atty. Gen., and J. H. Lawson, Asst, i Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of assault with intent to extort and was sentenced to serve a term of three years in the state penitentiary.

The information charges defendant assaulted one W. T. Donahoe by pointing a pistol at him with the intent to extort money. “Extortion” is defined by section 2133; an assault with intent to commit a felony is defined by section 1758, Comp. iSt. 1921. It appears from the record 1 that at the time charged Donahoe claimed defendant owed him some money secured by a note against which the statute of limitations had run and was attempting to get a renewal or acknowledgment of it. After some negotiations, Donahoe, under a previous arrangement, went to the residence of defendant to see him in reference to the note. In the conversation and quarrel that followed, defendant claimed Donahoe owed him $4,000 on some previous business transactions, became abusive, and demanded that Don- / ahoe have the amount in the mail box on the following day. During the conversation and quarrel he pointed a , pistol at Donahoe several times.

As we read the testimony, there is no' substantial evidence of an intent by defendant to procure from Donahoe a present delivery of any money or property, but merely that he have money in the mail box the next day, in discharge of a claimed debt. To' procure an oral promise to pay money at a future time by threats to do personal injury under the circumstances proven falls short of an assault with intent to extort. If the extortionate means had been used to obtain a present delivery of money or property or an instrument creating a debt, demand, charge, or right of action, á different question would be presented. McKeown v. State, 34 Okla. Cr. 381, 246 Pac. 659. Defendant’s conduct is more that of a fool than of a criminal. He should have been prosecuted under section 1999, Comp. St. 1921, for pointing a pistol.

The case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    W. T. HALE v. STATE.
    No. A-7513.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 509.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of four years.

The evidence of the state was that the defendant and his son Coy were driving upon the highway and came to a place where two cars were parted and where a group of boys were gathered; that the defendant and his son got out of the car and went over to where the boys were, and defendant’s son demanded a drink of whisky; that one of the boys told him they did not have any. There was some evidence that all the parties had been drinking; that an argument started; that defendant and his son had knives in their hands, and that defendant stuck his knife in the back of one of the hoys, Shorty Henson, and that thereupon Red Henson, the deceased, became involved in the controversy, and defendant and his son backed up to defendant’s car and defendant took a tire pump out of the car and struck Shorty Henson over the head a, couple of times, and also struck the deceased with the pump; that defendant continued to fight with Shorty Henson and defendant’s son with the deceased; that after the fight was over, it was discovered that the deceased had been stabbed three times with a knife; and that he later died from the effects of the wounds received in the fight.

The defense was a general denial and a plea of self-defense.

There is a sharp conflict in the testimony, the witnesses for the state testifying to a state of facts that clearly establishes the guilt of the defendant. The testimony of the defendant and his witnesses, if believed by the jury, would not have justified an acquittal, but might have been sufficient to further reduce the grade of the crime.

Defendant contends that the court erred in giving instruction No. 13, which reads as follows:

“You are instructed that upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to sho w that such homicide amounts only to manslaughter, or that the defendant was justifiable or excusable.”

This instruction is a verbatim copy of section 2719, C. O. S. 1921. The defense being not only a denial that defendant committed the crime, but also that defendant acted in his own self-defense and in the defense of his son, the court did not err in giving the instruction.

Defendant next complains of the giving of instruction No. 21.

This court has held, in numerous cases that the instructions must be consider, i asa who,le, and when considered together, if they fairly . ud correctly state the law applicable to the case, they will be sufficient.

Defendant says:

“We think that the court should have gone further in this instruction and said to the jury that under such circumstances it would be their duty to find the defendant guilty, unless they found from the evidence that the acts of the defendant were justified in his own self-defense and in the defense of his son.”

The court might have said this in the instruction complained of, but the court on its own motion, in instructions 16,17, and 18, had set out fully the rights of defendant and his son to act in their self-defense and in the defense of each other, and it was not necessary to repeat any part of it in the instruction complained of.

The evidence being sufficient to support the verdict of the jury, and no substantial errors of law appearing upon the record to require a reversal, the cause is affirmed.

DAVENPOBT, P. J., and EDWABDS, J., concur.


author: DAVENPORT, P. J.

text:
    STATE v. JUNEY NEALY.
    No. A-7702.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 510.)

      J. Berry King, Atty. Gen., and Ed. Waite Clark, Co. Atty., for the State.
    L. Y. Orton, for defendant in error.
   DAVENPORT, P. J.

This is an appeal by the state from a ruling of the county court of Pawnee county holding that the statute under which the defendant was informed against is unconstitutional, for the reason that the charge brought against the defendant is not sufficiently stated in the title of the act.

The defendant, by information, was charged with willfully, knowingly, and unlawfully purchasing certain articles, to wit, junk brass, from Clifford Owens, a minor under the age of seventeen years, without having first obtained the consent in writing of the parents or guardian of the said minor, Clifford Owens. The defendant, before the case was called for trial, filed a motion to quash the information, and set aside the same for the following reasons:

“That the law under which this prosecution is started, in so far as the offense charged is concerned, is unconstitutional because it is not clearly expressed in the title of the act; the Act being chapter 150 of the Session Laws of 1917; the title of said act in no* place mentioned anything about the purchasing of any junk from a minor, and the punishment clause, being section 2 of the act, does not have any reference to any punishment for a person buying junk from a minor.
“That section 57 of article 5 of the state Constitution has 'been clearly violated and is not followed.
“That the information does not charge a public offense or state sufficient facts to constitute the violation of any law of the state of Oklahoma,”

—which motion was sustained, and the state has appealed.

The only error assigned by the state is:

“Said court erred in sustaining a motion to quash the information herein and in quashing the information herein.”

Section 57, art. 5, of the Constitution of the state of Oklahoma, provided as follows:

“Acts to Embrace One Subject — Amendments. Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. * *

The information in this case is based upon the following language contained in chapter 150 of 1917 Session Laws, Senate Bill No. 251, and now embodied in sections 1954 and 1955, C. O. S. 1921. It is the last proviso' of section 1 of this act that is in question in this case, and that proviso reads as follows:

“Provided further, that it shall be unlawful for any junk dealer, as defined in this act, to purchase articles mentioned herein from minors without having first obtained the consent, in writing, of the parents or guardian of such minor. ” ,

The title to the a.ct in which the proviso quoted is embodied is as follows:

“An act requiring all persons, firms and corporations carrying- on the 'business of buying brass, copper, iron, rubber and leather belting, plumbing or electric fixtures, burlap or bags of any material, tools, machinery or supplies commonly used in the drilling, completing, operating or repairing oil or gas wells commonly known as ‘Junk Dealers’ to keep a record of all purchases in detail open to inspection and the keeping of such property on display open to inspection for 15 days; prescribing penalties for violation thereof and declaring an emergency.”

A careful examination of the title shows there is nothing in the title to- the act that comes anywhere near covering the proviso under which this defendant is charged. Nowhere in the title do the words “minor, parent, or guardian, or consent” appear. In fact, there is no- mention in the title with reference to purchasing from a minor. The Supreme Court of the state has often passed upon section 57, art. 5, of our Constitution, supra. A well-considered case is that of the State ex rel. Short, Attorney General, v. Johnson et al., 90 Okla. 21, 215 Pac. 945, 947, in which the court said:

“That the foregoing provision [referring to that part of the Constitution] has a definite purpose in our organic law is clearly apparent, and the purpose of such provision is by no means new to our jurisprudence. Most every state has a similar provision in its Constitution; many have the identical provision; and none but what have some provision looking toward the same purpose. Hence, as its necessity is so generally recognized, its purpose should not be lightly treated. The primary purpose of such provisions has long been recognized, defined, and settled.* * *
“Hence such a provision has both a definite and wholesome purpose. In fact, from the number of states which have a similar provision and from the vast number of cases wherein such provision has been called upon in determining the validity of a statute, it may now be said to be universally recognized as a necessary limitation upon legislative 'bodies” — citing many cases thereafter.

After again quoting from that section of the Constitution, “has a fixed and definite purpose extending beyond the legislative body itself to the people, unto whom is reserved the supreme legislative power. Hence there was a reason why the framers of the Constitution were not content with the words 'shall be expressed in the title,’ or 'shall be described in the title,’ etc., ordinarily used by other states, but, in order to emphasize the importance of this provision, used the words 'shall be clearly expressed in the title.’ ” Ex parte Masters, 126 Okla. 80, 258 Pac. 861.

The title of the act in question does not mention one word or syllable about buying junk brass or anything else from a minor. The only description in the title to the act is, “When a junk dealer buys articles, he shall keep a record of his purchases, and keep the property on display for a certain length of time.”

It is true there is a long line of cases holding that a liberal construction should be applied to the acts of the Legislature and constitutional provisions in determining whether or nor such enactments violate constitutional provisions, and, when the constitutional acts of the Legislature show a clear conflict, the court should hold them invalid.

The provision of the Constitution as applied to that part of the act in question in this case has been carefully and liberally construed, and we hold that it is unconstitutional.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    VIRGIL YOUNG v. STATE.
    No. A-7796.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 516.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of transporting whisky, and was sentenced to pay a fine of $50 and to' serve 30 days in the county jail.

The- record discloses that at the time charged an officer with a search warrant searched the person of defendant. The defendant was observed by the officer walking across the street of the town of Mountain View, into a cafe, He followed him into the cafe and searched his person and found a bottle partly filled with whisky. Defendant testified that he entered the cafe, and some person in there handed him a bottle, and that he took á drink out of it, and, seeing the officer come in, put it in his pocket, and that the person who gave it to him went out the back door of the cafe.

Objection is made to the sufficiency of the affidavit and search warrant, and further that the officer did not serve the search warrant. The evidence is that the officer searched defendant and then showed him the search warrant. Upon an examination of the entire record, we are convinced there is no miscarriage of justice, that the warrant is sufficient, and that the failure of the officer to literally follow tbe law in serving it does not require a reversal.

The case is affirmed.


author: DAVENPOBT, P. J.

text:
    G. A. (BUCK) WILSON v. STATE.
    No. A-7631.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 517.)
    T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPOBT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by infor\mation with maintaining a public nuisance, by unlawfully, willfully, and knowingly keeping malt, spirituous and fermented liquors, capable of being used as a beverage, ; and containing more than one-half of 1 per cent, alcohol measured by volume, to wit, beer and whisky, were received, kept, and possessed by him to sell, barter, give (away, and otherwise furnish such liquors to others in v violation of law; was convicted and sentenced to serve 90 '“days in the county jail and pay a fine of $500 and costs | taxed at $37.50. From the judgment defendant has ap-i pealed.

The testimony on behalf of the state shows that Roy F. Lewis filed an affidavit with J. H. Dutton, county judge, asking that a search warrant issue to search the property of the defendant. In the affidavit made by Roy F. Lewis, the defendant is charged with making whisky, possessing whisky, beer, ale, and wine, and imitations thereof and substitutes therefor, which contained as much as one-half of 1 per cent, of alcohol capable of being used as a beverage; the defendant has spirituous, vinous, fermented malt liquors, including whisky, beer, ale, and wine; that the defendant is guilty of operating, conducting, carrying on, dealing, playing at poker, roulette, craps, banking, and percentage games, and gambling devices in which chance is, and becomes, a material element, for money, checks, credits, property, and representatives of value, in violation of the laws of the state of Oklahoma; and the premises described which are asked to be searched bear the general reputation of being a place where intoxicating liquor, to Avit: beer, whisky, ale, and wine are had, possessed, kept, and received for the purpose of sale, and are sold; that persons congregate there; that they leave there and carry bottles; they have been seen drinking from bottles which when cast aside 'bear the odor of intoxicating liquor, to wit, alcohol and whisky; that different individuals have been seen on said premises drinking from said bottles and immediately after drinking have been seen to stagger from intoxication and heard to talk in a thick-toned manner; that said place is frequented by habitual drunkards, and constitutes a public nuisance.

Based upon the affidavit filed by the affiant Lewis, containing the allegations herein set out, a search warrant was issued and the officers went to the defendant’s place and searched the same, and as shown by the evidence, they found a bottle containing a small quantity of whisky in the plant of the defendant, and a short distance from the building, in a wood pile, they found a half gallon of whisky in two different jars. Motion to suppress the evidence was filed and overruled, and exceptions saved.

The state called J. A. Guilliams, who' testified he lived at Tecumseh, and was a deputy sheriff-—

“I went with some other officers to the Wilson Pipe Company building about 8:30 or 9 o’clock at night; we had a search warrant and served the same upon the defendant who was in the door of the building, or near it when we arrived; there was no one there at the time except the defendant; I found a small white jar of whisky; Prank Stewart found a small bottle in the building and Tandy Moore found a red jar of whisky; the two' jars of whisky were found outside the building in a wood pile some 15 or 20 feet from the building; we found something like five or six empty jars around or near the building, and some small bottles.”

On cross-examination witness stated:

“I found a small bottle in the north part of the building; I suppose it is the office; hidden under some sacks or something of the kind; there is no fence around the building; the building is immediately back of the Santa Pe, and the Rock Island is immediately back of it; the building is about 200 feet from the oil mill; there was an automobile left the plant just before we went to it; do not know who' it was.”

The witness stated he did not know how many men were working at the defendant’s plant; they were making tiles for road purposes, large and small, and concrete building blocks.

Tandy Moore called as a witness, in substance, stated:

“I was with Joe Guilliams on the night of September 11, 1929, when they searched the Wilson Pipe Company building; found a half gallon of whisky; it was a little northeast of the pipe company’s building, probably not 20 feet; it was under some wood; the defendant was at the building that night; when we first went there he was standing at the door.”

The witness was asked as to the general reputation of the Wilson Pipe Company’s building on the 1st of August, 1929, up until about the 11th of September, 1929, for being a place where intoxicating liquors were kept and where people congregated for the purpose of drinking such liquor, and he stated he knew the general reputation, and it was bad.

On cross-examination he stated he did not know how many people the defendant worked at his pipe company—

“I never knew about any whisky found there prior to this night; there is no fence around the building that I know of.”

Marion Pettigrew also testified he was a deputy sheriff on the 11th day of (September, 1929, and was with the other officers when they went to the building belonging to the defendant, and that the reputation of the building in the community at the time as a place where people congregated for the purpose of drinking intoxicating liquor and become drunk was bad.

“I have seen people go there in the evening and observed the condition of some of them as they came away; I would say they were drunk, not too drunk, feeling pretty good; I live about a block away from the building.” On cross-examination witness stated he had not observed the condition of the parties before they went into the building; “some time they would go there in automobiles, and some times walking; I did. not keep an account of how many went or how many came away; I could not say definitely how many I saw coming away from there who appeared to be in a drunken condition; I did not see any one take a drink in the building.”

Frank Stewart testified fie was on tfie raid with, tfie officers when they made tfie search of tfie defendant’s building—

“When we searched we found a bottle in tfie building and two jars outside tfie building; tfie defendant’s place is not a residence; there is an office, and a place where they make pipe; tfie reputation of tfie place for people to congregate and resort for tfie purpose of drinking is bad.”

On cross-examination fie stated fie was with tfie parties when they made tfie search, and, in substance, testified tfie same as tfie other witnesses as to what they found, and where it was found.

Grover C. Butler testified that the defendant operated tfie Wilson Pipe Company; tfie reputation of tfie place-was bad for being a place where people congregated for tfie purpose of drinking whisky. On redirect examination tfie witness Butler testified this is tfie first time fie ever knew of tfie Wilson place being searched; fie went down there one time with Dr. Gray to get fiis boy; tfie boy was drunk when they found him.

Tfie defendant testified in fiis own behalf and stated:

“I am tfie owner of tfie pipe line company where tfie search was made; my business was located at Tecumsefi, down near tfie oil mill; I was working as high as eight or ten men at tfie time; I manufacture sewer pipe, water meter boxes, concrete building blocks, and specialties in concrete; have been in tfie business 24 years; I never saw any of tfie exhibits here before; if any of these were found in my building I did not know anything about them. On tfie night of tfie 9tfi Dr. Gray’s son came down to my building; I think fie rode down there in a car; when fie came fie was apparently well lit up.”

On cross-examination defendant stated:

“I may have taken a drink that evening; I did not drink out of any of the bottles here in court; if I took a drink I took it before I came to the shop that evening; I had been at the shop about one hour before I was arrested ; Dr. Gray came down and took his son from the building; Dr. Gray did not notify me that the officers were coming and I did not put the whisky out in the wood pile; I had not had several people around there drinking on previous occasions; I had not had lots of drunk men down there during’ the months of August and September, 1929; they did not get drunk at my place of business to my knowledge; I never saw any whisky around my place of business during the months of August and September, 1929; my place had been searched before, but they did not find any whisky at my place that I know of; the business is run by myself, I am the manager; lots of days I am not in the plant during the day; I did not see the officers take the whisky out of my place, nor did I see them take any whisky out of the wood pile; I have seen men around my place of business who looked like they were intoxicated; we did not go down every evening, nor did they get drunk down there; I never heard of the officers arresting any one down at my place of business for being drunk; I was not arrested at my place of business for being drunk; I pleaded guilty and paid a fine for drunkenness up town. On the previous search mentioned by Mr. Lewis they did not find any whisky on the premises, nor was there any charge filed against me. All the laborers have access to the building as well as myself; the men go in and out any time it is open; I have not been there all the time. Gasper Davis and Andy Bobinson work for me; Bobinson is the foreman. I have had two or three other people working there, and my boys worked down there the biggest part of the summer.”

This is, in substance, the testimony.

The defendant has assigned ten error's alleged to have been committed by the court in the trial of this case. The first assignment of the defendant is that the court erred in overruling Ms motion to' suppress the evidence, on the ground that the same was obtained by illegal and unreasonable search of this defendant’s private residence on the 8th day of September, 1929. The affidavit in this case charges almost every crime known to our criminal statutes. It is positive in form and subscribed and sworn to by Koy F. Lewis on the 10th day of September, 1929. After this affidavit was sworn to, the affiant Lewis seems to have passed out of the picture as a witness or complainant in the case, as he is not called to give evidence, and there is nothing to show that he had any knowledge of any of the acts stated in the affidavit.

The affidavit for the search warrant being positive in form, this court cannot inquire into the truth or falsity of the statements contained in the affidavit, but we are constrained to the opinion that the affidavit containing the allegations it does contained many statements that were not within the knowledge of the affiant, and such statements as the affiant should not make unless he did know the facts about which he was swearing. Under the previous holdings of this court the motion to suppress the testimony was properly overruled, as the statements in the affidavit were positive statements.

It is next urged by the defendant that the court erred in overruling his motion for a new trial. The defendant in this case was by information charged with the crime of a public nuisance, under what is generally termed our prohibitory statutes. Section 7870, C. O. S. 1921, defines a “nuisance.” Section 7871, C. O. S. 1921, is a follows:

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

That part of section 7022, material to the issues in this case, is as follows:

“All places where any sprituons, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any malt liquors or compounds of any hind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being-used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

Ruling Case Law, vol. 20, page 380, § 1, defines a “nuisance” as follows:

“The term ‘nuisance’ is derived, it appears, from the French word ‘nuire,’ which means to injure, hurt or harm. And in a broad sense it is true that a nuisance is any- ' thing that works an injury, harm or prejudice to an individual or the public. According to the definition given by Blackstone (3 Black. Com. 216) which has met with general approval, a nuisance is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. A more comprehensive definition, however, must be adopted in order to include everything that is recognized by the law as a nuisance at the present day. The decisions establish that the term nuisance, in legal parlance, extends to everything that endangers life or health; gives offense to' senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.”

It will be seen by the definition of the statute and Ruling Case Law, of a “public nuisance,” under which the defendant in this case was prosecuted, that it is necessary before the defendant can be legally convicted that the proof on behalf of the state should show that the defendant manufactured, sold, bartered, gave away, possessed, or otherwise furnished, in violation of onr statute, vinous, fermented, malt liquors, or imitations thereof or substitutes therefor, or mixtures or compounds of any hind or description whatsoever, containing more than one-half of 1 per cent, alcohol, measured by volume, and capable of being used as a beverage; or the state must show by proof that persons congregated or resorted to the place of business of the defendant for the purpose of drinking such liquor, before the state could sustain a conviction.

There is no testimony in this case which tends to- show that the defendant manufactured, sold, bartered, gave away, or otherwise furnished, in violation of the provisions of the statute, any spirituous, vinous, fermented, or malt ‘, liquor, or any compounds or substitutes therefor. The \ testimony on behalf of-the state fails to show any drinking-in or around the plant of the defendant. One of the state’s witnesses testified that some time during the day, and (prior to the time, the search was made, he had gone down with Dr. Gray to defendant’s place of business, and got a son of Dr. Gray’s, and that the son was intoxicated, or appeared to be intoxicated.

The defendant in his testimony says that the young man was intoxicated when he came to his place of business, and that he did not drink anything at his place, so far as he knew. Some other testimony of an indefinite character was introduced by the state, tending to show that people went to and away from the place of business who appeared to be finder the influence of intoxicating liquor. The place of business of the defendant was a manufacturing plant, where any one desiring to go- might go in at any time during the day when the plant was open, and the defendant had no control over their going and returning from his place of business.

The testimony fails to show what hours in the day or night it is claimed by the state that parties were seen coming and going to and from the place of business. The proof shows that it was not a store, shop, boarding house, or place of business other than a manufacturing plant, and, as stated in the testimony, it was along the right of way of the Rock Island and Sante Fe railroads. There is no testimony tending to- show that on any occasion the defendant had sold, bartered, or given away any intoxicating liquor at his plant, or that he had ever been seen in possession of any. The testimony fails to show that the two' jars of whisky found a short distance outside of the plant was the property of the defendant, or that the defendant owned the wood pile it is claimed the two jars were found in.

The testimony of the state shows that a small quantity of whisky, estimated at something like a half pint, found somewhere in the defendant’s building under some old sacks or some material, belonged to the defendant.

The question then to be determined is, Is the proof sufficient under the law to1 sustain a conviction of maintaining a public nuisance?

The only testimony as to the reputation of the place is the testimony of the officers, and they do' not testify to any specific facts which would tend to' show the defendant’s place to be a place where whisky, wines, beer, or compositions were kept, sold, given away, or otherwise furnished to others, nor does the proof show that anything was done to the annoyance, detriment, or injury to the health of any individual surrounding it. Officers of the law are supposed to do tbeir duty, and they are not supposed to furnish proof sufficient to convict a defendant, unless they know the facts about which they testify. If |the reputation of the defendant’s place of business was such as to amount to a nuisance under the prohibitory laws, certainly some individual other than the officers could have been called to testify as to the general reputation of his place and plant. Reputation is what the people generally say about a person or place, and in proving that reputation, if those living near enough to know what the reputation is have talked about it, or mentioned it, it would seem that some of them should have been called to so testify.

This court has repeatedly held that, where the defendant is charged with keeping and maintaining a place where intoxicating liquor is sold or illegally disposed of, it is competent for the state to prove the general reputation of such place in said community touching this matter. Reputation alone is not sufficient to sustain a conviction of maintaining a public nuisance in the absence of competent testimony that such place is a place where intoxicating liquors were sold, or sales of such liquors were made on the premises. In this case there is a total failure of proof as to any sale of any prohibitory liquors on the premises of the defendant, or that the defendant’s place of business was a place where people assemble or congregate for the purpose of drinking. We do not understand that the finding of a small quantity of whisky in the plant of the defendant on one single occasion is sufficient to support a nuisance conviction, in the absence of proof of the sale of such liquor having been made on the premises. The statute against unlawful possession is intended to cover such instances, and that is the statute upon which prosecution should be based, where the state is unable to supply the additional elements of proof necessary to support a nuisance conviction. Webb v. State, 22 Okla. Cr. 890, 211 Pac. 524 ; Jones v. State, 23 Okla. Cr. 9, 211 Pac. 1075.

There are other errors assigned, but the view we take of this record it is not necessary to consider them. The evidence is insufficient to sustain a conviction of maintaining a public nuisance.

The judgment is reversed.

EDWARDS, J., concurs.

CHAPPELL, J., dissents.


text:
    W. H. McCARTY v. STATE.
    No. A-7671.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 521.)
    Walter Mathews, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county upon a charge of possession of a still for the purpose of manufacturing whisky, and his punishment fixed by the jury at a fine of $150 and imprisonment in the county jail for a period of 60 days.

The defendant has appealed by transcript. The charging part of the information is as follows:

“One Bill McCarty then and there being, did then and there willfully and unlawfully possess a still, and still worm, in the state of Oklahoma, for the purpose of manufacturing distilled liquor, to wit: whisky, the sale, barter, giving away and otherwise furnishing of which is prohibited by the laws of the state of Oklahoma.”

To this information defendant entered his plea of guilty, and thereafter, by permission of court, withdrew such plea and filed his demurrer to the information, alleg-i log that such information charges more than one offense, that the act charged is not stated with a sufficient degree of certainty, and that the facts do not constitute a public offense.

This demurrer was overruled, and defendant thereupon entered his plea of not guilty, and trial was had to a jury, which jury, under the instructions of the court, found the defendant guilty.

Defendant contends, first, that the information is insufficient to charge an offense.

Section 2, ch. 42, .Session Laws 1923-24, provides:

“It shall be unlawful for any person to keep, or have in his possession, or knowingly permit any other person to keep, or have in possession upon any premises under the ownership or control of such first party, any still worm or still without that he first register the same with a proper United States officer and obtain from said officer a certificate of said registration and that he also' first file said certificate of registration or a certified copy thereof Avith the ; county clerk of the county in which said worm or still is lo-1 cated, and it shall be unlawful for any person to set up to 1 be used as a distillery, a still worm or substitute therefor, whether kettle, washpot, metal tank or any other vessel of any kind, whether for the purpose of using same, or which after being set up, may be used for the manufacture, production or fermentation of distilled spirits, or liquor, the sale, barter or giving away of which is prohibited by tbe laws of tbe state of Oklahoma. It is tbe duty of each county clerk in Oklahoma to file said registration certificates or certified copy thereof upon tbe presentation of tbe same in the same manner and for tbe same fees as chattel mortgages.”

It is not necessary for the state to allege in tbe information that tbe still worm or still had not been registered as required by law. It is for tbe defendant to show, if be can, that be had legal authority to possess and operate tbe still.

It was not error for the trial court to overrule the defendant’s demurrer to tbe information.

Defendant next complains of instruction No. 2, wherein tbe trial court quoted from sections 2 and 3 of chapter 42, supra, and there advised the jury that it was unlawful to possess a still without having filed a certificate of registration with the county clerk, for the purpose, or which might be used in the manufacture of distilled spirits or liquors prohibited by such sections.

The information charges the defendant with the unlawful possession of a still for the purpose of manufacturing whisky. The verdict of the jury is as follows:

“We, the jury duly empaneled and sworn to' well and tvuly try the issues in the above entitled cause, do upon our oaths find the defendant, W. H. McCarty, guilty of possession of a still and worm as1 charged in the information, and fix and assess his punishment at a fine of $150 and imprisonment in the county jail for a period of 60 days.”

The instruction complained of evidently did not mislead the jury, since their verdict is in conformity with the charge in the information.

For the reasons stated, the cause is affirmed.

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


text:
    BILL HAYDEN et al. v. STATE.
    No. A-7652.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 522.)
    C. L. Clearman, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   EDWABDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Beckham county on a charge of having the unlawful possession of whisky; defendant Nichols was sentenced to' pay a fine of $50 and. to serve 30 days in the county jail; defendant Hayden was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The record discloses that defendants were operating a filling station near the town of Sayre. Certain officers with a search warrant went to the place and made a search. Nothing was found in the building, but some twenty steps from the rear a bottle containing a small quantity of whis-ky was found, and in the building were found, two cases of empty new pint bottles, and. about forty yards north of the filling station in the field the officers found a sack with seven pint bottles of whisky in it. There was a trail leading from the filling station near to the spot where the whisky was found. There was some other evidence tending to show intent.

The principal contention made is that the evidence is not sufficient to show that defendant had possession of the whisky found. The evidence is circumstantial, but is sufficient from which the legal and reasonable inference of guilt arises.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    E. L. GORE v. STATE.
    No. A-7674.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 522.)
    Corn & Corn, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county of the crime of transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $150 and imprisonment in the county jail for 30 days.

The only evidence offered by the state was given by Marvin Compton, deputy sheriff of Dewey county. He testified that he saw the defendant and two other men standing behind a car; that defendant had a bottle in his right band; that some one hallooed “look out,” and defendant took a step and kicked the bottle under the car; that this bottle contained whisky; that he did not know where defendant brought this whisky from or where he got it.

At the close of the state’s evidence, defendant moved the court to instruct the jury to find the defendant not guilty, for the reason that the evidence was insufficient to support a verdict of guilty, and now alleges the overruling of such motion as ground for reversal of the case.

In Ivey v. State, 34 Okla. Cr. 202, 245 Pac. 908, this court said:

“Where a bottle of whisky belonging to another is thrown from a car by the accused to prevent its seizure by approaching officers, such act alone does not constitute an illegal transportation by the accused.”

In Wilder v. State, 34 Okla. Cr. 291, 246 Pac. 660, this court said:

“ 'Place’ as used in Comp. St. 1921, § 7002, forbidding conveying intoxicating liquor, means region or locality.”

Measured by these authorities, the evidence of the state was wholly insufficient to support the verdict of the jury.

For the reason stated, the cause is reversed.

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


text:
    FRANK LOFTON v. STATE.
    No. A-7643.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 523.)

      Percy Powers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, and one C. F. Taylor, were charged jointly with the possession of intoxicating liquor, to wit, seven pints of beer, with the unlawful intent to barter, sell, give away, and otherwise dispose of the same to others. The defendant Frank Lofton was convicted and sentenced to pay a fine of |50 and be confined in the county jail for 30 days. From the judgment the defendant has appealed.

E. W. Reeves, called as a witness for the state, testified :

“I was driving along the highway about three and a half miles southeast of Mangum, Oklahoma, and saw the defendant and C. F. Taylor sitting under some cotton wood trees eating a lunch; after I passed I saw one of them raise a bottle to their head and drink; I stopped, turned around and went back, and while I was turning around I saw them throw a sack out in the weeds, and throw the bottle to the side of the road; there were six or seven bottles in the sack when I got back to where they were; I did not taste the contents of the bottles; I smelled the bottle they had thrown away and brought the rest of them to town and turned them over to Mr. Tittle. The defendant was not intoxicated.”

On cross-examination, in response to the question the witness Reeves was asked:

Q. Was it home brew? A. I call home brew and beer all the same.”
“I did not taste any of it; I smelled it; I do not know how much alcohol it contained; I could not say whether or not it was capable of being used as a beverage; it was what they called home brew, home brew in bottles, that is all I can say.”

S. H. Tittle, called as a witness for the state, testified to the witness Eeeves bringing some bottles to him and telling him where he found them; the witness identified the bottle that E. W. Eeeves brought in. On cross-examination witness stated:

“I never made an examination of the bottles; about all I know is that Mr. Eeeves brought the bottles in and told where he got them; I don’t know whether the bottles contained beer or some other concoction; I do not know when these parties were arrested, the papers will show.”

The bottles were introduced in evidence. This is, in substance, the testimony. •

At the close of the state’s testimony, the defendant demurred to the evidence of the state and moved the court to direct the jury to return a verdict of not guilty, for the reason that the evidence wholly fails to' prove that the defendant was guilty as charged in the information, or to show that he had violated any law of the state. It is clear from the testimony in this case that the state failed to prove the material allegations in the information. The allegations in the information are that the defendant was found in possession of beer with intent to sell, barter, give away, or otherwise dispose of the same in violation of law. The proof shows that the concoction found in the bottles near where the defendant and other parties were eating lunch was what is called home-brew, the witness stating he called home-brew beer. There was no chemical analysis offered in evidence, nor does the witness Reeves testify as to tbe intoxicating effect of the home-brew found by Mm; he says the defendant was not intoxicated at the time; that he did not taste the contents of the bottle; that he smelled the bottle, but he could not say whether it was intoxicating or not. The motion of the defendant should have been sustained. The proof fails to sustain the allegations in the information. For the reason that there is no evidence to sustain the allegations in the information, the judgment is reversed and remanded, with directions to dismiss the case.

EDWARDS and CHAPPELL, JJ., concur.


author: •DAVENPORT, P. J.

text:
    MORRIS SWEENEY et al. v. STATE.
    No. A-7581.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 524.)
    Crowe & Crowe and L. C. McLean, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   •DAVENPORT, P. J.

The plaintiffs in error, for convenience referred to as the defendants, were convicted in the county court of Garfield county of petit larceny; each was sentenced to pay a fine of $100 and costs, and be imprisoned in the county jail for a term of 30 days1, from which judgment the defendants have appealed.

The testimony on behalf of the state shows that Arthur Anderson was driving along the highway from Cov-ington to his home, on the 22d day of April, 1929, and saw a light down at an old abandoned place, and left his car on the highway and went down to near where the light was, and he saw the defendants working around a binder belonging to Henry Fiene, the prosecuting witness. The witness Anderson further testified he waited by the side of the road until the defendants came away from the binder to- the road where his car was parked, and placed them under arrest, they had portions of the binder belonging to the prosecuting witness in their possession, and dropped them down by the side of the road. The defendants were taken to the home of the prosecuting witness Fiene, and then to Anderson’s home, where they phoned for the sheriff and he came and took the defendants to jail.

The testimony further tends to show that the defendants were seen with a flash-light taking parts off of the binder which belonged to Henry Fiene.

The defendants deny they had anything to do with taking, any parts from the binder and state they had been driving around in the oil field for the purpose of getting some pipe to be used by them on the farm. This is in substance the testimony.

Several errors have been assigned by the defendants as grounds for reversal. The only error that is deemed necessary to consider in this case is the sixth assignment, which is as follows:

“That the court erred in overruling plaintiffs in error’s motion for a new trial.”

There is a conflict in the testimony as to the guilt or innocence of the defendants. The testimony on behalf of the state is positive that the defendants were taking parts from the binder, and that they were arrested by the witness Anderson at the scene, or near where the binder was located, as they were coming from the binder to the highway. On the other hand, the defendants deny any connection with the binder. The owner of the binder and other parties went to where they claim the defendants returned to the highway, and there near the highway found certain parts which fit the binder of the prosecuting witness. Where there is conflict in the testimony, this court will not undertake to settle that question; that is a question within the exclusive jurisdiction of the jury, and in this case the jury found against the defendant.

There is some question raised in the record as to the action of the court, after the jury had retired to consider its verdict, but after a careful examination of the question raised it does not possess sufficient merit to warrant a reversal. The record shows that up to the time of this a¡l-leged offense the defendants were hard working young men, and had never been accused of any crime before. Considering the circumstances and evidence in the case, we believe the sentence imposed by the court upon the verdict of the jury is excessive, and that it should be modified from $100 and costs and 30 days in jail for each defendant, to a fine of $100 and costs, and as modified the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDW ADS, J.

text:
    BONNIE WEST v. STATE.
    No. A-7788.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 506.)
    Jas. A. Emir /, for plaintiff in error.
    J. Berry Aing, Atty. Gen., for the State.
   EDW ADS, J.

The plaintiff in error, hereinafter called d ^endant, was convicted in the county court of Lin- ^ coin /iinty on a charge of having the unlawful possession i of vhisky, and was sentenced to pay a fine of f 100 and to serve 60 days in the county jail.

The record discloses that at the time charged certain officers with a search warrant went to the residence of defendant and made a search, finding about a quart of whisky. There was considerable evidence that this place of resi-Idence was a place where persons both black and white resorted for the purpose of buying and drinking intoxicating liquor, and also that it bore a reputation as a place where liquors were sold.

The principal contention made is that the evidence is insufficient, and that the court erred in admitting evidence of the reputation of the place. A predicate having been laid by showing the residence of defendant was a place of resort, the evidence of reputation was admissible.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    JACK WHITE v. STATE.
    No. A-7623.
    Opinion Filed Feb. 7, 1931.
    (296 Pac. 503.)
    J. Q. A. Harrod and L. W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information with maintaining and operating a certain two-story frame building wherein intoxicating liquor, to wit, whisky, was kept, 'bartered, sold, and given away and otherwise furnished to divers persons unknown, to- the common nuisance of the public; was tried and convicted; and sentenced to pay a fine of $100 and to be confined in the county jail for 90 days. Prom the judgment the defendant has appealed.

The testimony on behalf of the state shows that the officers had a search warrant and went to- the home of the defendant and searched the same, and the witness stated they found about a gallon of whisky, but further in the testimony it was disclosed that the whisky was found in a toilet on property adjoining where the defendant lived where there were two- or three other houses. There is no testimony in the record showing that the whis-ky claimed to have been found by the officers in the toilet was in the possession of the defendant or ever had been in his possession. There is some testimony showing that some people had been seen in and around the defendant’s house at different times, but there is no testimony showing any bartering, selling, giving away, or furnishing any whisky by the defendant to any one, or that any one was on the premises drinking at any time, and there is no testimony which tends to show any complaint from the neighbors claiming to- have been disturbed or annoyed by the defendant.

The wife of the defendant stated that she learned from the officers where they claimed to have found the whisky, and that it was found on an adjoining lot to their property, and the houses on the lot where they claimed the whisky was found were occupied, and her family did not use the toilet where the officers claim the whisky was found. This is in substance the testimony.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The seventh, eighth, and ninth assignments will be considered together. The defendant urges that the court erred in overruling his motion for a new trial; that the • verdict is contrary to the law and to the evidence.

Section 7870, C. O. iS. 1921, defines the different kinds of nuisances. Section 7871 defines a public nuisance as follows:

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

Section 7872 defines private nuisance as follows:

“Every nuisance not included in the definition of the last section is private.”

The information in this case charges the defendant with doing certain things amounting to a common nuisance to the public. Evidently the pleader intended to' charge the defendant with a public nuisance.

In Sullivan v. State, 36 Okla. Cr. 95, 252 Pac. 442, this court in the syllabus said:

“On the trial of a charge of maintaining a public nuisance where intoxicating liquors are sold, proof of general reputation as such is admissible, but such proof alone is not sufficient to sustain a conviction, and where, in addition to general reputation, there is evidence of the finding of a small amount of whisky in a bottle, not sufficient * * * of intent to violate the law, and no proof of any violation of the liquor law at such place is made, the evidence is not sufficient to sustain a verdict of guilty.”

The defendant urges that the testimony is wholly insufficient to- maintain a charge against him of a public nuisance. The contention of the defendant is well founded, for the reason that there is no competent testimony to sustain the allegations of the information.

The defendant has urged a number of other errors alleged to have been committed in the trial of his case, and especially that the court erred in permitting the witness Eads to testify to the general reputation of the defendant’s place at 710 North Stonewall, in Oklahoma City, as being a place where intoxicating liquor was bartered, sold, given away, and otherwise furnished to divers persons, and where people congregated for the purpose of drinking intoxicating liquor, on April 26, 1929, being bad.

A careful reading and study of the testimony tends to create a suspicion that the defendant in this case may have been handling intoxicating liquor, but the proof falls far short of that required by the statute to show beyond a reasonable doubt that the defendant was guilty of maintaining a public nuisance as charged in the information. The court permitted considerable testimony to go into' the record with reference to a phone call for the defendant, while the officers were at the defendant’s home, which related to a real estate transaction, and shed no light whatever upon the charge in this case; one of the witnesses stating that when he answered the phone he thought it related to another place the defendant was supposed to be maintaining.

The defendant in this case may be guilty, but there is no competent testimony sufficient to sustain the charge ' for which he was convicted.

The judgment is reversed.

EDWARDS, J., concurs. CHAPPELL, J., dissents.


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    L. C. BUTLER v. STATE.
    No. A-7772.
    Opinion Filed Feb. 14, 1931.
    (296 Pac. 507.)
    S. A. Fowler, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter referred to as defendant, was convicted of selling one pint of whisky to one W. L. Wormington, and was sentenced to pay a fine of $50 and to imprisonment in the county jail for 60 days, from which judgment the defendant has appealed.

W. L. Wormington, the party to whom it is alleged the defendant sold the pint of whisky, was called as a witness on behalf of the state, and said in substance that on the date alleged he met the defendant on the street shortly before the arrest. That he had gone into' the warehouse in the rear of the place of business of a man by the name of Parks, and the defendant came in shortly after he went into- the warehouse, and in a very few minutes an officer came in and wanted to’ know what they were doing. Witness stated :

“I do' not know what the defendant was arrested for. I had some money in my hand when the officer came in. I didn’t give the money to anyone. I hadn’t had anything to pay for. I had not seen any whisky at the time the officers came into the warehouse. After the sheriff came in and looked around I saw some whisky.”

On cross-examination the witness stated:

“The warehouse is located right behind Joe Parks’ tin shop. I was working for Joe Parks at the time and was managing the warehouse to a certain extent. I did not know there was any whisky in the warehouse until after the sheriff came in. I had not seen any whisky. I hadn’t paid Mr. Butler any money. I did not buy any whisky from Mr. Butler. Didn’t pay him any money. Mr. Butler didn’t tell me he had any whisky in the warehouse nor did I tejll Butler I had any whisky in there.”

The officers testified to going into the warehouse and finding a short distance from where the witness Worming-ton was standing a pint of whisky, and also testified to searching the building and finding some more bottles with some kind of red liquid in them. They did not know who had taken the pint of whisky into the warehouse. Did not see the defendant in possession of it or handling it.

The defendant assigns several errors alleged to have been committed. The only error necessary to be considered is No: 4, which is that the verdict is not sustained by sufficient evidence and is contrary to law in such cases made and provided by the laws of the state of Oklahoma. After careful examination of the testimony, we hold that \ there is no testimony showing a sale by the defendant { to Mr. Wormington or any one else. The party to whom ! the sale is alleged to have been made says that he made no . purchase from the defendant. The evidence is wholly insufficient to sustain the allegations in the information.

The judgment is reversed.

EDWARDS and CHAPPELL, JJ., concur.


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    HARVE BURR v. STATE.
    No. A-7675.
    Opinion Filed Feb. 14, 1931.
    (296 Pac. 768.)
    Corn & Com, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, Avas convicted in the county court of BeAvey county of the crime of selling intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for six months.

The evidence of the state is that the defendant sold a gallon of whisky to one Mont Corey, and on cross-examination he admitted that he had previously been convicted of setting up a still. This evidence Avas sufficient to justify the jury in returning a verdict of guilty and in fixing the punishment at the maximum.

I

The defendant contends that the court erred in giv- j ing instruction No. 5, in that such instruction placed the i burden of proof upon the defendant.

His defense was that he did not sell the whisky. The / court told the jury, in substance, that, if from the evidence ' in the case they found the defendant did not sell said liquor, or if there existed in their minds a doubt as to whether he did sell the same, it would be their duty to find the defendant not guilty.

Defendant in support of his contention cites Brennon v. State, 27 Okla. Cr. 286, 226 Pac. 1062, wherein the court told the jury that, if from the evidence the jury believed “the defendant did not sell the whisky,” they should find him not guilty. To the same effect is Jay v. State, 42 Okla. Cr. 32, 274 Pac. 487; Lowe v. State, 42 Okla. Cr. 313, 275 Pac. 1066; and Thomas v. State, 45 Okla. Cr. 424, 283 Pac. 1037.

The instruction in the case at bar is different from the authorities above cited, in that it requires the jury to find the defendant not guilty if they have a reasonable doubt of his guilt. The instruction was not in proper form. But, as given by the court, the same is not reversible error.

Defendant next complains that the court erred in allowing the county attorney to' go outside of the record in his argument.

The county attorney said there was considerable trouble over the witness Corey getting drunk. Defendant’s counsel objected to this as being outside of the record. The court promptly sustained the objection and admonished the jury not to consider the statement. There was evidence in the record that Corey was frequently drunk, but no evidence that he obtained his whisky from the defendant.

The guilt of the defendant being clearly established, he was not injured by the remark of the county attorney.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    MACK JAMES v. STATE.
    No. A-7312.
    Opinion Filed Feb. 16, 1931.
    (296 Pac. 526.)
    Claud Briggs, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

It appearing to the court from the records in the pardon and parole office that a parole was granted the plaintiff in error on January 10, 1981, it is therefore ordered and adjudged that the appeal of plaintiff in error be dismissed.


text:
    Ex parte E. R. LEWIS.
    No. A-6849.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 1116.)
   PER CURIAM.

It appearing to the court that the petition in this case was filed on November 15, 1927, and that no one appears for the petitioner to prosecute said petition, it is therefore considered and ordered by the court that for failure of the petitioner to prosecute his case the same is dismissed.


text:
    Ex parte RUPERT SNEED.
    No. A-8039.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 1118.)
   PER CURIAM.

This is an original petition filed in this court in which the petitioner alleges he is unlawfully restrained of his liberty by Mr. Bradley, sheriff of Payne county, Okla., that his restraint is illegal for the reason that he has been in custody of the sheriff for a period of more than 48 hours without an opportunity of a preliminary hearing; that bond has been fixed by Judge L. H. Woodyard of Payne county, at $5,000; that he has made a good and sufficient bond in the sum of $1,000 and submitted to the judge for approval; and that the date set for a preliminary hearing was made on same two weeks later than the statutes require it should be made.

No proof is offered in support of petitioner’s prayer for relief, nor has any response been filed. After a careful examination of the petition filed, we bold that the petitioner is not entitled to the relief prayed for, and the writ is denied.


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    GEORGE MANCHESTER v. STATE.
    No. A-7817.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 525.)
    Harry C. Kirkendall, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county on a charge of murder and his punishment fixed at life imprisonment.

The record discloses that at the time charged defendant shot and killed his wife, Louise Manchester. Defendant at the time of the homicide was about 30 years of age and bad been married to deceased for about a year. He bad formerly served some time in tbe army, but became insane in 1916 and for a time was in a government hospital for tbe insane. He was discharged in 1917. After bis discharge be followed various occupations, but for some time prior to tbe homicide was a cook. Just prior to tbe homicide bis wife bad not lived with him for some time and she was at a disreputable hotel or rooming bouse at Enid, probably engaged in part in prostitution. Defendant bad attempted to have her leave this place and live with him. On tbe day of tbe homicide, having previously procured a pistol and ammunition at a hardware store, be went to this place, procured bis wife to go out with him, and while walking along tbe street, bolding her with bis left band, be emptied tbe pistol, firing sis shots into her body. He then left tbe scene, but was soon arrested. Tbe defense was insanity. Defendant testified fully and apparently was a fairly intelligent witness. Tbe substance of his testimony as to the act of homicide was that be went to tbe rooming house where bis wife stayed, got her to go- out with him, and as they were walking along be observed that she waved to a negro porter. That he questioned her about it, and it made him so mad that be did not kno w what be did then and did not remember anything further until be was arrested. Tbe complete record of tbe government hospital relating to tbe previous insanity of defendant is in the record and some physicians testified as experts. No exceptions were taken and no complaint is made of the court’s instructions which cover fully the law of insanity.

Tbe contention is made that a witness was permitted to testify whose name was not served on defendant nor bis name indorsed on tbe information. This witness was used in rebuttal and it was not necessary that bis name be either served or indorsed. It is also' urged that the sheriff who was a witness was permitted to summon tales-men for the jury. The record shows nothing as to the summon or impaneling of the jury. It does not appear that any talesmen were summoned or used. An assignment of error not supported by the record is of no avail. Error is not presumed; on the contrary, this court will presume that all proceedings in a court of record were regular. The burden is on the defendant to show clearly the irregularity complained of and that he was prejudiced thereby.

The contention made is largely one of fact. That is, that the insanity of defendant is so conclusively shown the judgment should not be permitted to stand. While the evidence is that the jury might have concluded that defendant was insane at the time he committed the homicidal act, yet we cannot say from the record that the jury was not fully justified in finding defendant sane to the degree rendering him responsible for his criminal act.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    I. L. BROWN et al. v. STATE.
    No. A-7418.
    Opinion Filed Feb. 7, 1931.
    Rehearing- Denied Feb. 28, 1931.
    (297 Pac. 303.)

      Prentiss E. Rowe, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Pottawatomie county of the crime of burglary, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years for each of them.

The evidence of the state was that on October 13, 1928, the home of Julius Oneal, in Pottawatomie county, was broken into and several articles of personal property stolen therefrom; that on October 17th, the officers with a search warrant searched the premises of the defendants and found the shoes, tea cloths, egg pan, and four yards of new ducking cloth; that the home of the Oneals had been robbed on the 13th day of May, and that some of the articles stolen at that time were also found in the home of the defendants.

That a blue car was seen at the Oneal residence, and that a woman resembling the defendant was in the car; that the license number on the car was 658 — 384; that a man resembling the defendant was seen at the Oneal home at about the time of the burglary; that the defendants were the owners of a blue coupe and that tag No. 658384 bad been issued by the state highway department to the defendant I. L. Brown; that at the time defendants’ home was searched many articles were found which had been stolen from other homes in the same neighborhood.

Mrs. Brown testified in her defense that the articles had been purchased from a peddler. They also' offered evidence tending to establish an alibi. Mr. Brown did not testify.

Defendants contend first that the trial court erred in forcing them to trial without having an opportunity to subpoena witnesses.

The information was filed in the district court on the 24th day of November, 1928, and the case set for trial on December 17th. On December 5th, on motion of the county attorney, the case was transferred to the superior court of Pottawatomie county and set for trial on the 13th day of December. On the 12th day of December the county attorney filed notice asking leave to indorse the names of additional witnesses on the information, which notice was duly served on the defendants and their counsel. On December 13th, leave was given the state to indorse the names of these witnesses on the information, and on the same day the cause came, on regularly for trial, the state appearing by the county attorney and his assistant and the defendants appearing in person and by their attorneys, Prentiss E Rowe and D. 0. Clements, and, both sides announcing ready for trial, a jury was duly called, impaneled, and sworn to try the cause.

In the case of State v. Frisbee, 8 Okla. Cr. 406, at page 420, 127 Pac. 1091, 1097, in the body of the opinion, this court said:

“When a defendant voluntarily announces ready for trial, this operates as a waiver of all preliminary steps prescribed for preparation for trial.” Ex parte Hudson, 3 Okla. Cr. 401, 106 Pac. 540, 107 Pac. 735; State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

Tbe case bad been pending in tbe district and superior courts for 19 days. Due notice bad been served on tbe defendants of tbe time of tbe trial and of the intention of the state to ask to indorse additional names of witnesses on tbe information, and subpoenas bad been duly and timepy issued for defendant’s witnesses.

This court has held that tbe requirement that tbe defendant be given 10 days is not an arbitrary one, and is within tbe discretion of the court, but that no defendant should be brought to trial, over his objections, within 10 days of tbe date of arraignment. Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Jacobs v. State, 29 Okla. Cr. 140, 232 Pac. 861; Morris v. State, 48 Okla. Cr. 354, 292 Pac. 79.

There is nothing in tbe record to indicate that there is any merit in the contention of defendants, even if timely objection bad been made.

Defendants next contend that tbe court erred in re- ¡ fusing to' permit their counsel to make bis opening statement to tbe jury immediately following tbe opening statement of tbe state.

Section 2687, C. O. S. 1921, provides as follows:

“First. If tbe indictment or information is for a felony, tbe clerk or county attorney must read it, and state the plea of tbe defendant to tbe jury. In other cases this formality may be dispensed with.
“Second. Tbe county attorney, or other counsel for tbe state, must open tbe case and offer tbe evidence in support of tbe indictment or information.
“Third. The defendant or his counsel may then open his defense, and offer his evidence in support thereof.”

It was within the power of the court to permit defendants’ counsel to make the opening statement immediately following the opening statement of the state, but it was not reversible error for him to refuse to do so1.

Defendants next contend that it was error for the court to permit the state to introduce proof of the finding of other stolen articles in the home of the defendants at the time defendants’ premises were searched and the property in the case at bar was found.

Where property recently stolen is found in the possession of defendants under circumstances like the case at bar, this evidence is admissible for the purpose of showing a plan or scheme to’ commit this character of crime. Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; Zeligson v. State, 43 Okla. Cr. 24, 276 Pac. 791; Lordi v. State, 47 Okla. Cr. 102, 287 Pac. 1083, 1084; Paramore v. State, 47 Okla. Cr. 140, 286 Pac. 811.

The defendant Mrs. Brown took the witness stand and attempted to explain the possession of the stolen property by saying that she purchased it from a peddler.

In the case of Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560, this court said:

“In a prosecution for larceny of certain cattle, where the evidence for the defense tended to explain the defendant’s possession of the cattle by purchase from persons other than the owner, it is competent, in rebuttal, to show the defendant’s contemporaneous possession of other stolen cattle.”

The trial court did not err in admitting evidence of other stolen property found in the home of the defendants shortly after the property in the case at bar was stolen.

The defendants complain of other errors, but they are without substantial merit.

It appears from the record that the defendants had a fair trial, and that the evidence overwhelmingly establishes their guilt.

For the reasons stated, the cause is affirmed.

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


text:
    ROY WOMBLE v. STATE.
    No. A-7667.
    Opinion Filed Feb. 28, 1931.
    (296 Pac. 515.)

      Ellmore Pinnick, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Cro-ssland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of murder and sentenced to life imprisonment.

The record discloses a state of facts about as follows: Defendant, with George Lampos and Pete Amos, two Greeks, drove from Miami, Fla., to Oklahoma in a Rick-enbacken car which belonged to Pete Amos with a load of whisky. They arrived at Tulsa October 18, 1926, where ; they remained that week, except that defendant came to Oklahoma City one day and returned the next. On October 25, defendant and the two Greeks left Tulsa in the Rickenbacker car for Oklahoma City. There is no tes-Itimony of any one who saw the Greeks alive after that time. Defendant was at Oklahoma City with a quantity of whisky for sale about the time the parties drove from Tulsa to Oklahoma City. The car was found burning a short distance from the North Canadian river near El Reno in the latter part of October. A quarter of a mile from the place the dead body of Pete Amos was found, I and two or three months later the dead body of George Lampos was found in the North Canadian river in Oklahoma county near the town of Choctaw, with several wounds in the head sufficient to have caused death. There ' are some other circumstances not detailed. Defendant admits he made the trip from Florida with Amos and Lampos in the Rickenbacker car; that they were at Tulsa several days; that he came to Oklahoma City one day and returned the next; that on his return he found one Baker with them; but denies that he came to Oklahoma City with them. He admits he saw Baker with the car in Oklahoma City and that he assisted Baker to dispose of the whisky; that he then went to Amarillo and from there to Los Angeles. Baker was a witness for the state and testified he bought three cases of whisky from defendant at that time.

It is contended that there is no proof of venue. That is, that there is no evidence the crime was committed in Oklahoma county. There is no- proof of venue other than the circumstances recited. It is well settled that venue may be proven by circumstantial evidence and need not be proven beyond a reasonable doubt. The circumstances proven are sufficient. Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232; Jentho et al. v. State, 19 Okla. Cr. 434, 200 Pac. 251; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427; Groh v. State, 30 Okla. Cr. 396, 236 Pac. 435; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026; Hatfield v. State, 49 Okla. Cr. 41, 292 Pac. 1058.

Complaint is also made that the court permitted to testify a. witness whose name was not indorsed on the information and who remained in the courtroom during the trial after the rule had been invoked. This refers to the testimony of Mrs. Charles G. Athens, a witness who' testified in rebuttal and without objection at the time and without any notice that she remained in the courtroom. The names of rebuttal witnesses need not be indorsed. Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026; Pollock v. State, 26 Okla. Cr. 196, 223 Pac. 210. Even where a witness willfully violates the rule, it is discretionary with tbe court to allow or to exclude the testimony of such witness. Kilgore v. State, 10 Okla. Cr. 446, 137 Pac. 364; McCarty v. State, 21 Okla. Cr. 365, 207 Pac. 1069. The error, if any, cannot avail defendant under this state of facts.

It is also urged the court erred in permitting the jury to separate after the close of the testimony and before the case was finajlly submitted. This was done by agreement of the state and the defendant. It is within the discretion of the trial judge to permit the separation of the jury before the case is finally submitted. Section 2716, Comp. Stat. 1921; Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683; Chappell v. State, 44 Okla. Cr. 268, 280 Pac. 639.

Upon an examination of the entire record, we are satisfied defendant had s. fair and impartial trial.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.