author: BAREFOOT, P. J.

text:
    LAWRENCE J. DIEHL v. CITY OF SHIDLER.
    No. A-10308.
    Jan. 10, 1945.
    (155 P. 2d 269.)

      For former opinion, see 78 Okla. Cr. 434, 150 P. 2d 76.
    John W. Tillman and Fred A. Tillman, both of Pawhnska, for plaintiff in error.
    A. J. Wildman, City Atty., of Shidler, and Bert Law-ton, of Pawhuska, for defendant in error.
   BAREFOOT, P. J.

The original opinion in this case is reported in 78 Okla. 434, 150 P. 2d 76. A rehearing was granted, and oral argument was had, and additional briefs filed by all parties.

The question presented for serious consideration by the court on rehearing is that by the terms of the ordinance it is provided that one convicted “shall be fined in any sum not less than $1.00 and not more than $19.00, and the costs of the prosecution”; and as to whether this provision renders the ordinance unconstitutional and void, for the reason that under it one might be fined more than $20, when the costs are included.

When the motion for rehearing was granted in this case, counsel were requested to appear before the court and orally argue this proposition. This request was complied with, and additional briefs have also been filed by each of the parties to sustain their respective contentions.

It is now contended by the city of Shidler that the constitutionality of this ordinance should not be considered for the reason that the fine and costs did not amount to more than $20, and that it is therefore unnecessary to pass upon the constitutionality of the ordinance.

To support this contention a number of cases, some of them from the Supreme Court of this state, are cited holding that courts will not pass upon the constitutionality of an act of the Legislature if the merits of the case may be finally determined without so doing.

We recognize this general rule of law. From the facts surrounding this case and the authorities presented, if occurs to us that the rights of this defendant under the ordinance should be considered on its merits.

In all of the cases appealed to the Territorial Supreme Court, the Supreme Court, and this court involving the statute, the fines and costs imposed have exceeded the $20 limit. Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537; Ex parte Johnson, 20 Okla. Cr. 66. 201 P. 533; City of Ada v. Bupprecht, 29 Okla. Cr. 227, 233 P. 238; Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233.

In the instant case the fine and costs were less than $20 ($19.50). But in the cases cited, the courts have used language which strongly supports the contention made by counsel for defendant.

In the case of Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533, 537, this court said:

“The test as to whether or not the accused is entitled to a jury is whether or not the punishment will or might he imprisonment., or a fine and costs in excess of $20 for the nonpayment of which the accused may be imprisoned. The dividing line between, mere petit offenses that could be tried summarily without a jury and the graver offense of a criminal character, where the accused is entitled to a jury, must be arbitrarily made at some point. The federal Constitution, the statutes of this state, and decisions of this court have fixed the dividing line at a penalty of $20, ineluding costs. In other words, a municipal court, under the holdings of this court, may summarily and without a jury impose a fine and costs not in excess of $20, and may imprison the accused for the nonpayment of such fine, 'but not where the punishment is or may be in excess of this sum. See, also, Ex parte Bochmann [20 Okla. Cr. 78, 201 P. 537].
“Under the conditions here the petitioner was imprisoned for the nonpayment of a fine and penalties in excess of $20, and following the rule laid down by this court in other decisions, the petitioner was wrongfully denied the right of a trial by jury.”

It will be noted that the court in this case used the words, “will or might be” with reference to the punishment.

In the case of Ex parte Bochmann, supra, [20 Okla. Cr. 78, 201 P. 540], the court said:

“The test as to whether or not the accused is entitled to a jury is whether or not the punishment will or might be imprisonment, or a fine and costs in excess of $20, for the nonpayment of which the accused may be imprisoned. In other words, a municipal court, under the holdings of this court, may summarily and without a jury impose a fine and costs not in excess of $20, and may imprison the accused for the nonpayment of such fine and costs, but not where the punishment is or may be imprisonment, or is or may be a fine and costs in excess of this sum. Ex parte Johnson [20 Okla. Cr. 66], 201 P. 533.”

In this case the ordinance of the city of Lawton had been amended and the maximum punishment provided for a fine of $20 and costs. The fine assessed was $20, and the costs, which amounted to $6. The petitioner in that case ivas granted a writ of habeas corpus because no written complaint was filed and he Avas not given a trial by jury.

In the case of City of Ada v. Rupprecht, supra, the defendant was fined in the sum of $20, and $8.25 costs, for the violation of a city ordinance. On appeal the county court dismissed the case on the following grounds:

“The court finds and holds that inasmuch as the charter of the city of Ada aforesaid provides for no jury trial in cases of violation of its ordinances, where the fine may exceed $20, it is in conflict with the Constitution and the statutes of the state of Oklahoma, and is therefore null and void, in so far as it pertains to trials for violations of the ordinances of the city, and that Ordinance No. 206, being an ordinance defining ‘disturbing the peace,’ and fixing a penalty for violation thereof in excess of $20, is null and void.
“The court further finds that under the Constitution and statutes of the state, the municipal court of the city of Ada could not fine the defendant in a sum, including costs, in excess of $20, and that, inasmuch as said municipal court did fine the defendant the sum of $20, and $8.25 costs, the court exceeded its power and jurisdiction and said judgment was and is null and void. The court finds further that said defendant did not waive his right to a trial by jury by making bond and appealing to the county court.
“It is therefore adjudged and ordered that said motion of the defendant to dismiss the cause be sustained in all things. To which action of the court the said city of Ada excepts and reserves the right of appeal to the appellate court, which exceptions are allowed.”

The case was appealed to this court by the city of Ada. The appeal was dismissed on the ground that the city did not have the right to appeal under Oklahoma Statutes (Tit. 22 O. S. 1941 § 1053). Oklahoma City v. Tucker, 11 Okla. Cr. 260, 145 P. 757, Ann. Cas. 1917D, 984. But Judge Doyle in the closing part of the opinion said:

“It may be well to say, in passing, that we think the judgment of the county court is sustained in Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097, and in Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233.”

In the case of Mar] and Refining Co. v. City of Hobart, 113 Okla. 36, 237 P. 857, 858, the Supreme Court of this state said:

“The following cases hold that, if the penalty clause of an ordinance is admittedly void, the whole ordinance must fail:
“In the case of German-American Fire Ins. Co. v. City of Minden, 51 Neb. 870, 71 N. W. 995, the court said:
“ (A city ordinance imposed an occupational tax, and provided only an illegal method for its enforcement. Held, that the whole ordinance was therefore rendered inoperative.’
“In the City of Omaha v. Harmon, 58 Neb. 339, 78 N. W. 623, it is held:
“ ‘A city ordinance imposing an occupational tax and providing a method for its enforcement which is illegal is wholly inoperative.’
“In the case of Massinger v. City of Millville, 63 N. J. L. 123, 43 A. 443, it is held:
“ Tf a section of an ordinance which provides a penalty for the violation thereof is invalid, the whole of the ordinance becomes nugatory.’ ”

In the oral argument on rehearing, our attention was called to the case of Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233, 236. This case uses language that answers the contention of defendant that the court should not attempt to interfere with the judgment and sentence here rendered for the reason that the fine and costs were less than $20 —$19.50. It was there said:

“Counsel seem to argue that, regardless of the penalty provided by an ordinance, if the police judge should assess only a small penalty against the accused, that would obviate all objection to the jurisdiction and render the judgment pronounced valid. The answer to this is that jurisdiction is fixed by what might, under given premises, be done, and not what actually is done. For instance, if a justice of the peace should try even a civil case, in which the amount in controversy exceeded his jurisdiction, even if he rendered judgment for only $5, that fact would not cure the defect or confer jurisdiction, for jurisdiction depends not on what is done, but on what might be done. And the test of the jurisdiction of a police court in any particular case is not what is done, but what under the ordinance might be done.
“In the case at bar we are of the opinion that under the proceedings had the petitioner was deprived of his liberty without due process of law, and that the writ should be awarded.
“The petitioner is therefore discharged.”

In that case, the judgment and sentence was for a fine of $99, and 90 days imprisonment in the city jail.

After a careful consideration of the motion for rehearing, we have come to the conclusion that the ordinance of the city of Sliidlcr here under consideration is void by reason of the provision that the punishment “might” or “may be” more than $20, and that the judgment of the county court of Osage county should be reversed, and the case against the defendant dismissed.

It is so ordered.

JONES, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    LOUIS SOLOMON v. STATE.
    No. A-10310.
    Jan. 10, 1945.
    (155 P. 2d 272.)

      For former opinion, see 79 Okla. Cr. 93, 151 P. 2d 944.
    W. C. Henneberry and C. Lawrence Elder, both of Tulsa, for plaintiff in error.
    Sanded S. Cobb, Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

The original opinion in this case was handed down on September 20, 1944. In the original opinion it was stated that the defendant had been sentenced to serve a term of “six” years in the State Penitentiary. An examination of the record reveals that it should have read a term of “seven” years. A petition for rehearing, and brief in support thereof, has been filed.

We have again carefully reviewed the record, and find that since this case was decided, a letter has been filed herein by the trial court, in which he states that he has made an investigation of the facts in this case, and is now of the opinion that the case should at least be modified.

While we do not hold that this statement is in any way binding upon this court, we have examined the record, and have decided that by reason of the small value of the stolen property (|3) alleged to have been received by the defendant, and the fact that in the original opinion we found that certain incompetent evidence had been admitted, that the ends of justice demand a modification of the judgment and sentence in this case from seven years in the State Penitentiary to three years in the State Penitentiary.

As so modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


author: JONES, J.

text:
    AMON JOHNSON v. STATE.
    No. A-10550.
    Jan. 10. 1945.
    (155 P. 2d 259.)

      Mathers & Mathers, of Oklahoma City, and M. A. Cox, of Chandler, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, J.

The defendant. Amon Johnson, was charged in the district court of Lincoln county in case No. 2747, with the dime of murder of Martha Gorski, and was charged by information in the same court in case No. 2748, with the crime of murder of Mrs. Victoria Gorski. The defendant entered a plea of guilty in each of said cases and was sentenced to death in the electric chair at the State Penitentiary for said crimes by him so committed, from which judgment and sentence an appeal was taken to this court.

By agreement, the two cases were consolidated and appealed to this court as one case. The killings occurred at the same time, and the pleas of guilty to the two charges were entered at the same time; and this procedure was followed for the reason that, unless the defendant received relief from the sentences imposed in both cases, it would not avail him anything to secure relief in only one case.

It lias been held that an accused has a constitutional right to appeal to the Criminal Court of Appeals from any judgment rendered against him in a court of record, including a judgment rendered on a plea of guilty. Hardy v. State, 35 Okla. Cr. 75, 248 P. 846; Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857.

The petition in error alleges that the defendant was denied a fair and impartial trial, and that the sentence pronounced against him upon his plea of guilty was not in accordance with due process of law in that he was denied the right of counsel and was forced to enter a plea of guilty by threats.

A transcript of the proceedings before the trial court and at the arraignment of the defendant, including all proceedings connected with the preliminary examination before the committing magistrate, has been filed as a part of the record of this case.

About 4:30 p. m., on April 3, 1944, the lifeless bodies of Mrs. Gorski and her three-year-old daughter, Martha Gorski, were found in the hallway of a barn on the Gorski farm near the town of McLoud. The bodies were found by ten-year-old Helen Gorski when she returned to her home from school. Each of the bodies showed that they had been struck a severe blow on the head with a blunt instrument and that their throats had been cut to such an extent that the head almost severed.

At the time this crime was committed, someone had cut the throat of Roy Schat, a farmer in the northern part of Cleveland county, and had left him in an abandoned house and had stolen his truck.

After the bodies of the two Gorskis and the Cleveland county farmer had been found, the officers in their investigation learned certain facts which pointed the finger of suspicion at the defendant. An intensive manhunt for the defendant was commenced which resulted in his capture in the river bottom near the city of Shawnee, on April 9, 1944.

After his arrest and incarceration in the county jail at Chandler, the defendant gave a written confession detailing his whereabouts during the few days preceding his capture by the officers and relating fully the circumstances surrounding the killing of Mrs. Gorski and her three-year-old child and the farmer in Cleveland county.

Criminal complaints were filed against the defendant in the justice of the peace court in the city of Chandler, charging him with the murder of the two Gorskis. In regard to the appearance of the defendant before the justice of the peace, the following proceedings are disclosed by the record filed herein:

“On the 12th day of April, 1944, the defendant, Amon Johnson, appears in person; state appears by Walter Hill, county attorney, and Walter Wilson, asst, county attorney, for the purpose of fixing the date for the preliminary hearing having been brought before the court heretofore on the 11th day of April, 1944, for arraignment on this charge, and after being advised of his constitutional and statutory rights requested a preliminary hearing in this case. And the following proceedings were had on this day :
“Court: You were before me yesterday and the complaint charging you with the crime of murder was read by the county attorney. The court advised you of your constitutional and statutory rights in this case and you requested a preliminary hearing. However, before fixing the date of the preliminary hearing I want again to advise you of the charge which has been filed against you and your constitutional and statutory rights in this case.
“You are advised that the complaint which was read to you before this court charges you with the crime of murder, which carried a penalty of life imprisonment or death in the electric chair upon conviction.
“You are further advised that I am only a committing magistrate and cannot accept your plea in this case whether it should be guilty or not guilty. However, I further advise you that you are entitled to a preliminary hearing if you want one and you requested a preliminary hearing in this case when you were here before me yesterday.
“You are further advised that the preliminary hearing is to determine whether or not the crime with which you are charged was committed and whether or not there is sufficient cause to believe that you committed it. This must be shoAvn by competent evidence.
“If it is found from the evidence that this crime has been committed Avithin this county and that there is sufficient cause to believe that you committed it, it will be my duty to hold you for trial in the district court of this county without bond.
“You are further advised that you may waive a preliminary hearing if you want to and if you should waive a preliminary hearing it is my duty to hold you for trial in the district court.
“You are further advised that the State of Oklahoma has a right to have a preliminary hearing in this case should the county attorney request it.
“Before fixing the date or before I permit you to waive a preliminary hearing, it is the opinion of this court that you should be advised by a lawyer. I am going to appoint one for you unless you would like to hire one for yourself. Is there any lawyer living in this county you would like for me to appoint for you? Mr. Hill: He is asking if you knoAV a lawyer here that you would like appointed for you. The Defendant: I would like to have a lawyer to plead my case but I don’t know anyone. Mr. I-Iill: You are willing for the judge to appoint some lawyer of his own selection ? The Defendant: I don’t know anyone. The reason I had my pleads rearranged was so that if it wouldn’t be necessary to have a preliminary hearing that I would be before the district judge to plead if I wanted to. So I had my rearrangement made then I wanted to know if I go before the district judge. Mr. Hill: Then you plan on waiving preliminary hearing? The Defendant : Yes, sir, and going before the district judge and have a jury trial. Mr. Wilson: It is the judge’s opinion that he should have a lawyer here. Mr. Hill: The court thinks a lawyer should waive it for you and he is willing to appoint you a lawyer. It won’t cost you anything. The Defendant: Well, I will waive preliminary hearing and the court will appoint me a lawyer. Court: You are entitled to have a counsel before you do anything, and if you haven’t an attorney I will appoint one to guide you. The Defendant: Will you appoint me a lawyer to plead my case before the district judge? Court: No just for this. Mr. Wilson: The district judge said if you appoint an attorney here he would appoint the same attorney. Court: Call Dale Sutton. (Whereupon the court took a recess until counsel talked with the defendant.) (Court reconvened after reappearance of the defendant and his counsel. 1 Mr. Sutton: If the court please, we want to waive our preliminary hearing at this time. Mr. Hill: Is that for the two cases. The information is in both cases. Mr. Sutton: 1 presume there wouldn't be any difference in waiving both cases at this time. Court: Does the state request a preliminary hearing? Mr. Hill: State waives preliminary hearing at this time. Court: The defendant is ordered held for trial in the district court Avithout bail.”

Subsequently, and on the 13th day of April, 1944, informations were separately filed in the district court of Lincoln county, charging the defendant Avith murder. Thereafter, and on April 15, 1944, the defendant was brought before the district court of Lincoln county for arraignment of said charges of murder. At the time of said arraignment, tlie official court reporter was present and a transcript of all the proceedings was made. They are quite lengthy and will not be set forth in detail in this opinion. It is sufficient to say that at the time of arraignment of the accused the district court fully advised him of the nature of the charge against him and of the nature of the procedure then being had and the consequences of his plea, and of his right to have counsel of his own choosing, that in case of his inability to employ counsel that the district court would appoint counsel to advise and assist the prisoner in every stage of the proceeding. Tlie defendant then answered the court that he did not want an attorney, but wanted to enter a plea of guilty. The court then, on his own motion, appointed an attorney to advise with the prisoner. Later, the information was read in full to the accused by the assistant county attorney, after which a plea of guilty was entered. The court then fixed April 26, 1944, at 10 a. m., as the time for pronouncing judgment and sentence and directed both the state and defendant to be ready to present any evidence they might desire concerning the commission of the crimes by the defendant.

Thereafter, and on April 26,1944, in pursuance to the order of the court, a summary hearing was held, at which hearing the defendant appeared in person and by his counsel. The state introduced several witnesses who testified concerning the commission of the crime and identifying the defendant as the perpetrator. These witnesses were cross-examined by counsel for defendant, but no proof was offered on behalf of the accused in mitigation of the offense or for any other purpose.

The following is a summary of the evidence presented at this hearing:

Helen Gorski, age 10, testified that when she came home from school about 4 :30 p. m., she went to the barn to gather the eggs and saw her mother and her baby sister laying in the hallway as if they were asleep and each of their necks had been cut through the middle; that she hoJIered for help and her older sister came and, later, one of cheir neighbors went after her daddy who Avas at a farmer’s meeting at Midway, a short distance away from their home.

Walter Gorski testified that he was the husband of Victoria Gorski and the father of Martha Gorski, deceased; that while he was attending a meeting at Midway, one of his neighbors advised him that his wife and baby had been killed; that he immediately returned home and saw their bodies still lying in the halhvay of the barn. Each of their throats had been cut. Two coavs and a two-year-old heifer that had been in his barn Avere missing and some cotton seed that did not belong to him had been left in his barn. He srav some tracks Avhere a truck had backed up to his place and unloaded the cotton seed and where apparently the cattle had been loaded; that the next day, his cattle were recovered from the Livestock Commission Company in Oklahoma City.

Pearl Gorski. age 14, testified that she heard her little sister, Helen, hollering Avhen she discovered her mother’s body at the barn; that she notified the neighbors and, later, she went to Oklahoma City to the stockyards and identified their cattle.

Louis Drew testified that he was a mechanic at Harrah; that on the afternoon of April 3, 1944, the defendant drove up to his place of business in a 1934 Chevrolet truck. He had something wrong with his starting cable. The witness fixed the starting cable for the defendant. He described in detail the clothes which were worn by the accused on that occasion and was positive in his identification of the defendant as the person who stopped at his place of business on that date. He also identified a picture of the Roy Sehat Chevrolet truck as being the same truck which he serviced. It ivas a large truck with a livestock bed on it, with one wheel missing from the dual wheels on the rear. The place where this defendant stopped to have his cable fixed was not far from the Gorski home.

Lige McLaughlin testified that he saw the truck which he identified from the picture and which was being driven by the defendant about 12:30, on April 3, 1944, about two miles west of Midway and one and three-quarters miles north. Later, that afternoon, he saw the defendant and the same truck coming from the south and it was loaded with three cows and headed toward Oklahoma City. It was then about 4 p. m. The truck was coming from the direction of the Walter Gorski home and was being driven by the defendant.

Earnest Reust testified that he lived one-half mile from the Gorski place; that he passed the Gorski place on Monday afternoon, April 3, 1944, and saw a truck sitting by the barn and he saw a man talking to Mrs. Gorski by the truck. He described the appearance of the truck but he did not make a positive identification of the truck as was done by other witnesses.

Bob Lackey testified that he worked at the stockyards ; that on the afternoon of April 3, 1944, the defendant brought in three cattle for sale. He identified the truck and the license number of the truck in which the cattle were hauled and it was the same truck which was identified by the other witnesses. The cattle which he helped unload in the stockyard were the same ones which were identified by Pearl (lorski the next day as belonging to her father.

Raymond Devis testified that he lived southwest of Moore; that late in the afternoon of April 3, 1944, he saw a truck pass his place; that one dual wheel was missing on the left side; that the person driving the truck left it about one-eighth mile south of his place.

L. C. Fishburn testified that he lived southwest of Moore; that he drove the school bus; that he saw a colored man going north about 5:15, walking. He described his appearance and the clothing he wore and the description tallied with the description made of the defendant by other witnesses. The witness later saw the truck at Moore, after it had been brought to that town.

C. W. Jefferson testified that he picked up the defendant south of Oklahoma City, in the evening of April 3, 1944, and let him out on Southeast 29th street and Walker avenue, in Oklahoma City; that he hauled the defendant approximately seven miles from a place west of Moore. He described his personal appearance and the description tallied with that related by other witnesses.

Viola Jones and Elmo Jones, negroes, testified that they had a home in Oklahoma City; that Amon Johnson and Eloise Chandler, a negro girl, had been living with them for about a month' prior to April 3, 1944. and were living with them on that date; that Amon Johnson left home about 8 o’clock in the morning of April 3, 1944; that they next saw him about dark that same day; that they were awakened later in the night by the defendant and Eloise Chandler having a fight. They heard the defendant say he had already killed three people and that if he could blow breath ba.ck into them he would do it again. That he was threatening to cut Eloise’s throat. That Elmo told them to shut up and the defendant put up the knife and went with Elmo to the pool hall. That the next morning the defendant burned something in two bags.

E. E. Jones and Nathan Baker, two negro policemen, testified concerning their investigation of the murder of the Gorskis and of the man who had been slain in northern Cleveland county. They found where the farmer from Cleveland county had driven to a cotton seed oil mill in the negro section of Oklahoma City, and that they later learned that when the man left the oil mill a colored man rode on the truck with him. Their investigation showed that this colored man was Amon Johnson. That they checked on his record and found that he had a criminal record for stealing cattle. That it was their investigation which led to talking to Elmo Jones, who told them of the conversation which he and his wife overheard between the defendant and Eloise Chandler, and the further statement of Elmo Jones that when the defendant came home on the evening of April 3rd he had blood on his sleeve.

Robert Travis testified that he was the state finger printer with the Department of Public Safety. That he went to the Gorski home and made photographs of certain truck tracks which were plainly seen in the dirt near the Gorski barn. That later that day he accompanied the officers southwest of Moore, near the Canadian river, where an abandoned truck was found. That the truck which they found made tracks identical with those which he photographed at the Gorski farm. An investigation showed that the truck belonged to Roy Schat, who was the slain farmer from Cleveland county, who had driven the truck to the cotton seed oil mill in Oklahoma City. This was the witness who made the photographs of the Schat truck which were exhibited to the various witnesses for identification.

The sheriff and a notary public of Chandler testified concerning the making of the confession by the accused. This confession was taken down in writing and signed and sworn to by the defendant before the notary public. The substance of the confession will hereinafter be detailed.

Dr. A. J. Williams testified that he was called to the Gorski home about 6 p. m. to examine the bodies of Victoria and Martha Gorski. That each of them had received a blow on the head of sufficient force to crush the skull and cause their death. That each of them had been cut across the neck deep enough to sever the cord and all arteries. That the neck was about one-half severed. That the blow or the cut on the throat either would have caused the death of either of the persons which he examined.

The confession signed and sworn to by the defendant was very lengthy and covers about eight pages in the record. In substance, the defendant states that he is 29 years old. That he had been living in Oklahoma Oity from February, 1944, until his arrest on April 9, 1944. That on April 3, 1944, about 10 a. m., he saw a man in a truck getting some cotton seed hulls at the cotton seed mill on East 4th street, in Oklahoma City. That he got in the truck with the man and asked the farmer who was driving the truck to take him to where some whisky had been stored and to haul it back to the city for him. That they drove to a vacant house and while there got into an argument and the defendant pulled his knife and cut the man. That after he had cut him, he drove the man’s truck away. (This man was the fanner, Roy Schat, whose body was found in northern Cleveland county in an abandoned house, where his throat had been cut in the same manner as had been done to the two Gorskis.) Defendant drove the truck east of Oklahoma City to Harrah and stopped at a filling station to have the battery cable fixed. That he drove on a few miles after leaving Harrah and turned into a farm house and started unloading the cotton seed hulls and the cotton seed meal in a barn on the place. That he drove the truck off the bank at the side of the road and started to load some cows that were on the place. That a woman with a little girl came out of the house and asked what he was doing, and defendant replied that her husband had sold him the cows for the cotton seed meal and hulls. That the woman commenced arguing that the cows belonged to her and that she did not want him to take them. That he then hit her on the head with a part of a neck yoke. After he had struck the mother, the little girl started crying, and he then hit her over the head with the same part of the neck yoke. That the woman started to fight him and he took his knife and cut her throat. After she had fallen, he reached down to where the child lay and also cut her throat. That after he had killed the mother and child, he finished loading the cows in the truck and then drove on to Oklahoma City and sold the cows to the American Commission Company. That he sold the cows under the name of Robert Jackson. That after selling the cows, he turned south of Oklahoma City and drove the truck to the bank of the Canadian River, where he abandoned it and caught a ride with a man and his wife in their car back to Oklahoma City. He also describes the places that he had been since the commission of the crime until his capture by the officers while he wras hiding in the North Canadian river bottom near Shawnee. The confession of the defendant tallied in most respects Avith the physical facts shown by the testimony of the Avitnesses for the State.

At the conclusion of the summary hearing, the court sentenced the defendant to suffer death by electrocution on each of said charges.

We have detailed rather fully the record on the arraignment of the accused on each of the charges of murder, for the reason that this case is now before the court on an appeal from a plea of guilty entered by the defendant and the question has been presented to us whether all the formalities of the law have been fully complied with. At the time of the oral argument in this case, counsel for defendant stated to the court that he did not know of anything that the trial court should have done in connection with advising the defendant of the nature of the charge against him and of the consequences of his plea which was not done. No contention was presented at the hearing before this court that defendant was denied his right to counsel or that the confession was made through threats or duress.

The infliction of the death penalty should not be imposed except in extreme cases. It is not hard to conclude from the viciousness shown by the defendant in his .attacks upon his victims that he had forfeited his right to live in a society of his fellow men. His brazen and cold-hearted assertion that “I have killed three people and if I could blow breath back into their bodies, I would kill them again,” shows absolute depravity and a fiendish disregard for human life. His murderous acts were prompted by an evil-minded and hell-born desire to slash the throats of his victims.

The trial court was very careful in all of the proceedings to see that the accused fully knew what was being-done. He appointed counsel to fully advise with accused and after the guilty plea was entered the court postponed the pronouncement of the sentence for eleven days and directed a hearing concerning the details of the crimes charged to defendant. A careful consideration of the Avhole record discloses no error in the proceedings before the trial court and it is apparent that the judgment and sentence of death Avas fully justified and that said judgment in each of said cases should be affirmed.

The original time for execution having passed, OAving to the pendency of this appeal, it is considered, ordered, and adjudged by the court that the judgment and sentence of the district court of Lincoln county be carried out by the electrocution of the defendant on the 23rd day of March, 1945, in the State Penitentiary, at McAlester, Oklahoma.

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


text:
    C. W. ABBOTT et al. v. STATE.
    No. A-10306.
    Jan. 10, 1945.
    (155 P. 2d 267.)

      For former opinion, see 78 Okla. Cr 407, 149 P. 2d 514.
    George H. Giddings and T. Jack Tellegen, both of Oklahoma City, S. E. Dunn, of Tulsa, and David Tant, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Original opinion in this case is reported in 78 Okla. Cr. 407, 149 P. 2d 514, 521. Petition for rehearing was granted, and defendant has filed a brief in support thereof. The state was granted time to file reply brief, but has not done so.

We consider it necessary to refer to only one of the questions presented. It is urgently contended that by reason of the holding of the court that the closing argument of the county attorney was error, if this case is not reversed by reason thereof, it should at least be modified.

As stated in the original opinion, the closing argument of the county attorney was a “strong appeal for the conviction of the defendant.” We did not give the statements in the original opinion, but here quote some of them:

“Gentlemen, in the ten years that I have been in the office of the county attorney of this county, I have seen a lot of rottenness, I have seen a lot of meanness, and I have seen a lot of vileness, but I say to you in all sincerity, when a couple of fellows like that take bread out of the mouths of little crippled broken bodied babies, on the pretense of buying crutches for them through a rotten, stinking subterfuge like those two birds did, then I say in my ten years’ experience here, we have reached an all-time low in rottenness, and an all-time low in degraded perfidious human conduct, and those are the gentlemen about whom I speak. That is the way I am going to treat them in the next seventeen minutes; that is what I think of them, from the record in this case. Mr. Tant: Mr. Gilmer, pardon me, we wish to take exception to the remarks of the county attorney, and ask that the court instruct the jury to disregard them, as being prejudicial and not within the issue. The Court: Gentlemen of the jury, you will bear in mind that the county attorney makes his deductions based on the facts in the case. That will be a question for you to determine. ... Now from the record in this case, who was capable of making up a story like was told to you, Nancy Dickinson or Jim Fletcher? You saw him on the witness stand; smart, let me tell you, and in my opinion, from the record in this case, I think we are dealing with two of the slickest confidence men probably in the entire United States of America today. Mr. Tant: We object— Mr. Gilmer: That is my opinion from the record in the case, and here is where the real— Mr. Tant: We object to those remarks, if the court please, and ask the court, to instruct the jury not to consider them. The Court: Overruled. That will be a question for the jury. Mr. Tant: Exception. Mr. Gilmer: It hurts, I know it hurts, and I don’t blame them. But it is pay day now, it is pay day now.
“Gentlemen, let me tell you something. Let’s figure out if we can what kind of fellows we are dealing with. We didn’t know them until they got on the witness stand, we twelve jurymen, so about the best we can do is to base our conclusion on what we have seen and what we have heard from the testimony of these witnesses here under oath.
“What do we know about this Jim Fletcher, for instance? He is in the oil business. Bless your soul, he knows all about it! He is in the oil business and has been in it for years. He is drilling a well in Shackelford County, Tes. He knows all about the oil business, Jim Fletcher, and Nancy Dickinson not a crying thing. Does that make sense to you? Certainly and certainly.
“Here is what I think, from the record in this case, happened. I think Abbott heard — I don’t know how he heard — ‘there is a widow with somé money, over there at Pawhuska. I will go up and contact her and see if she is ready for picking.’ And he did, and he thought she was, so he can act accordingly.
“And then he got on the phone and called his old buddy and partner in crime, Jim Fletcher, and says, ‘Jim, come on up here to Pawhuska, I have got a woman here and we can take her for a little cash.’ And that is what happened, the record shows that from start to finish. So he came. Slick! He is the slickest operator I have seen up to date.
“Here comes a good story that he had to fool this poor woman, don’t you see? Jim says, ‘I want, to help you, I want to help you. I love little bity crippled broken bodied kiddies, I want to help them all to have crutches, I want to help you.’
“Oh, you rotten, rotten rascal, from the record in this ease, you shouldn’t have done that, that wasn’t fair, it wasn’t decent; it wasn’t even, from the record in this case I submit to you, human.
“Mr. Tant: If the court' please, we want to make an objection to the remarks of the county attorney, and ask the court to instruct the jury to disregard them.
“The Court: All right.
“. . . if they did it for that reason, then you wrap them up in celophane and send them down to McAlester, where they belong, and not for any thirty days or thirty months, but for five years, and it is just a pity that you can’t give them more than that. . . .
“I hope to heaven, I hope to heaven that when this jury, before you go home, I hope you don’t let one of them start talking to yon this afternoon, because he is liable to sell you and me an oil lease. When this ease is over I am going down and lock my door because I want to make myself safe if I can. So don’t give them a chance at you, because they are slick.
“Now let me tell you, confidence men all over the United States— I mean this seriously, and I sure believe it is true — by nightfall tonight every confidence man in the United States will know just what the verdict of this jury was. It will be important to them, because it is a thoroughly systematic and business-like crowd, as witness the way they handled this deal with this woman.
“I say again, gentlemen, I believe that every important confidence man in the United States—
“Mr. Dunn: If the court please, we object to that as prejudicial, and not a fair deduction from the evidence in this case.
“The Court: The jury has heard the evidence, and they are the triers of the facts. They doubtless will make their own deductions from the facts. Overruled.
“I believe tbis from the record in this case. I believe that before nightfall, every important confidence man in the United States Avill know about your verdict, and you can tell them what yon think of the whole rotten, mean, stinking thing by convicting these two parties and putting them out of circulation for five years at least.
“NOAAr, gentlemen, A\rhen yon go to yonr jury room, don’t waste any time, don’t Avaste two minutes, but come back in here with a verdict of guilty, and this sort of confidence men Avill never come back to Tulsa county again.”

The statute under which these defendants were charged pnmded for a maximum penalty of five years in tiie penitentiary (Tit. 21 O. S. 1943 § 1705), and this was the penalty assessed by the jury in this case.

After rereading Cue closing argument of the county attorney, and the cases of Hall v. State, 68 Okla. Cr. 367, 99 P. 2d 163, and Anderson v. State, 79 Okla. Cr. 194, 153 P. 2d 245, we have reached the conclusion that by reason of statements made by the county attorney in his closing argument, and the failure of the court to instruct the jury not to consider the same, justice demands that the judgment and sentence imposed upon each of these defendants be modified from five years to three years in the State Penitentiary.

As so modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


author: JOEES, J.

text:
    Ex parte JAKE HINLEY.
    No. A-10568.
    Jan. 17, 1945.
    (155 P. 2d 265.)
    George B. Forrester, of McAlester, for petitioner.
    Randell 8. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JOEES, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Jake Hinley, to secure his release from confinement in the State Penitentiary at McAlester.

In the verified petition filed herein it is alleged that the petitioner, on November 27, 1938, was sentenced to serve a life term in the Oklahoma State Penitentiary for the crime of rape. Neither the information nor the judgment and sentence is attached to the petition.

The petition further alleges that the restraint is illegal because petitioner was not given a fair and impartial trial in that the verdict of the jury was rendered without any competent evidence which could establish the guilt of defendant; that testimony was introduced against said petitioner in the trial of said case in disregard of the rules of law pertaining to the admission of evidence. A complete copy of the evidence introduced at the trial of the defendant is attached to the petition and made a part of the petition. ■

The Attorney General, on behalf of the warden of the State Penitentiary, has filed a demurrer to said petition.

It is established law that the writ of habeas corpus does not serve as an appeal and review of the facts. Ex parte Noble, 78 Okla. Cr. 105, 144 P. 2d 122; Ex parte Whitson, 70 Okla. Cr. 79, 104 P. 2d 980.

We have read the transcript of the evidence attached to the petition. It presented a conflict of testimony between the defendant and his daughter.

There is no allegation in the petition making any attack on the jurisdiction of the court. There is no contention that the trial court did not have jurisdiction and power to convict and sentence for rape.

In the case of Ex parte Newman, 67 Okla. Cr. 401, 94 P. 2d 556, 557, it is stated:

“If the court has jurisdiction of the person of the defendant and of the crime charged, and does not exceed its lawful authority in passing sentence, its judgment is not void, whatever errors may have occurred during the trial.”

In the case of Ex parte Frazier, 78 Okla. Cr. 230, 146 P. 2d 849, 850, it is stated: “In a habeas corpus proceeding only jurisdictional questions may be considered. The writ cannot be invoked for the purpose of reviewing the acts of courts of record, where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal.”

It follows from the foregoing that the writ of habeas corpus should be denied. It is so ordered.

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


text:
    KENNETH GEORGE ROOTS v. STATE.
    No. A-10342.
    Jan. 17, 1945.
    (155 P. 2d 258.)

      Mauntcl & Spellman, of Alva, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Kenneth George Roots, was charged in the district court of Woods county with the crime of murder; was tried, convicted, and sentenced to serve life imprisonment in the State Penitentiary, and has appealed.

This is one of the most tragic cases to be presented to this court. The defendant, a 17-year-old high school senior, shot and killed a 21-year-old boy, who was the brother of defendant’s sweetheart, because of a statement made to him by the girl that her brother had raped her. The defendant was an honor student in school, a boy of excellent reputation. His family and the family of the deceased boy lived on neighboring farms near the small town of Capron, in Woods county. Up to the time of this tragedy, the two families had been cordial friends.

After the appeal had been lodged in this court and the case set for oral argument, the defendant, through his counsel, filed a written motion to dismiss the appeal, in which they stated that the defendant, since his incarceration in the State Penitentiary, had been a model prisoner and would soon be eligible for a parole. That if the cause were reversed, the defendant would remain in the county jail pending a new trial, and that in all probability he again would be sentenced to serve a long term in the penitentiary and would lose the good time which he had earned since being incarcerated in that institution.

Notwithstanding the motion presented by the defenddant to dismiss his appeal, the court has read the voluminous record concerning this case. No person could read this record without being deeply moved because of the facts surrounding this tragic killing. The trial court stated at the time sentence was pronounced against the accused that he felt more badly in having to sentence the accused than in any case he had ever tried.

In the case of Huber v. State, 13 Okla. Cr. 209, 163 P. 329, it is stated:

“The right of appeal is a privilege granted by the laws of the state, to persons who are convicted of crime. The option of exercising and discontinuing the same, when the statute and rules of the court are complied with, ordinarily rests in the discretion of the party appealing.”

See, also, Nash v. State, 13 Okla. Cr. 211, 163 P. 330; Caudill v. State, 9 Okla. Cr. 66, 130 P. 812.

The right of appeal is a privilege granted to one convicted of crime which he may exercise at his option. After an appeal is perfected, this court has uniformly permitted the defendant to dismiss his appeal at his election. Since the defendant and his counsel have filed a written request that this appeal be dismissed, it is the order of the court that the motion to dismiss the appeal be sustained and the appeal is accordingly dismissed.

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


text:
    WILBUR J. HOLLEMAN v. CITY OF TULSA.
    No. A-10334.
    Jan. 17, 1945.
    (155 P. 2d 254.)
    Walter L. Kimmel and Floyd E. Whitlatch, both of Tulsa, for plaintiff in error.
    E. M. Gallaher, City Atty., C. Lawrence Elder, Philip J. Kramer, and L. A. Justus, all of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Wilbur J. Holleman, was charged in the municipal criminal court of the city of Tulsa with the crime of malicious mischief; was tried before tlie court without the intervention of a jury; was convicted and sentenced to pay a fine of $18 and $2 costs. From such judgment and sentence he has appealed to this court.

The ordinance under which defendant was charged is as follows:

“Malicious mischief is hereby defined as an injury or destruction done to the property of another person and prompted by malice or hatred toward another or an injury or destruction done to the property of another in a wanton and malicious manner. Malicious mischief is hereby declared to be an offense.”

Defendant, for the first time on appeal, urges that the information filed in this case is insufficient, for the reason that it is alleged: “ . .. in wanton, or malicious manner”, instead of “ ... in wanton and malicious manner.”

The defendant entered his plea of not guilty at the time of trial. He did not file a demurrer to the information, and this question was not raised in the motion for new trial. It is first assigned as error on appeal.

When the city introduced its first witness, counsel for defendant objected to the introduction of any evidence, for the reason that the information was not properly verified. This was overruled, and no question as to the sufficiency of the information was raised.

It has often been held by this court that it is necessary to demur to, or file a motion to quash the information in order to attack the same. Willis v. State, 64 Okla. Cr. 213, 78 P. 2d 840, and Clasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430, and cases cited therein.

It is nest contended that the court erred in refusing to sustain the demurrer or motion for judgment at the close of the case; and in not discharging the defendant.

This contention necessitates a brief statement of the facts upon which this conviction is based.

Defendant is an attorney in the city of Tnlsa. He owned a home, in which he was residing with his family, in that city. His home was located in a residential section of that city which had been designated by city ordinance as a U-l district. That portion of the ordinance defining the uses to which dwellings located in a Class U-l district might be put is as follows:

“Class U-l Uses: (1) Dwelling. . . .
“Sec. 4. Residence Districts, (a) Dwelling. In a class U-l district no building or premises shall be used, and no building shall be erected, which is arranged, intended or designed to be used for a Class U-2, Class U-3, Class U-4, or Class U-5 use, except as herein otherwise provided.
“Section 5. Accessory Uses in Residence Districts. An accessory use customarily incident to a Class U-l or Class U-2 use shall be permitted in, respectively, a Class U-l district. . . .” A bill-board, sign-board, advertising sign, or window display shall in no case be permitted as an accessory use. ... In a dwelling or apartment occupied as a private residence, one or more rooms may be rented, or table board be furnished, provided no window display or sign board is used to advertise such use.
“Sec. 32. Penalty. Any person, firm or corporation violating any provision of this chapter shall be deemed guilty of a. misdemeanor, and upon conviction thereof, shall be fined not less than $25.00 and not more than $3 00.00 for each offense, and each day’s violation thereof shall be deemed a separate offense.”

The prosecuting witness, May Eversole, occupied a home owned by her sister, Adda Eversole, across the street from, the home of the defendant, and in the same district. She rented rooms and served meals in her home, chiefly to servicemen and their wives. Prior to the charge in this case she displayed a small sign, placed on a post of her porch, which read: “Rooms meals.” Defendant, on July 24, 1942, left his home, haying with him his six-year-old son, crossed the street, went upon the premises of the prosecuting witness, tore down the sign, and tore it into pieces. When asked by the sister of prosecuting witness, who was the owner of the premises, why he did not come and talk with them about the sign, he replied that he did not have to talk with her about it, and stated that he tore the sign down and that if she put up another, he would tear it down. She testified that the defendant talked in a loud voice, such as to be heard by the neighbors, and that he shook his fist. He also spoke of its being in a prohibited district.

As to the. tearing down of the sign, the testimony of the defendant, of the prosecuting Avitness, and her sister, Adda E versóle, is practically the same.

It is the defendant’s contention that his acts did not justify the filing of a charge of “malicious mischief” under the ordinance above quoted. That he did not act with malice. That he did not even know the prosecuting witness prior to tearing doivn the sign. That the displaying of the sign was a violation of the law under the ordinances of the city of Tulsa. That the police officers had been notified of the existence of the sign, and had failed to take any action toward removing the same, or prosecuting the witness May Eversole for a violation of the ordinance, and that he as a private citizen had the right to tear it down. He claims that it ivas a private nuisance and that he had the right to personally abate the same.

With reference to the abatement of a private nuisance, counsel cites 50 O. S. A. 1941 §§ 13, 14, and 15, which are as follows:

“§ 13. The remedies against a private nuisance are:
“1, A civil action; or,
“2, Abatement.”
“§ 14. A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury.”
“§ 15. Where a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it.”

Attention is called to the case of Hummel v. State, 69 Okla. Cr. 38, 99 P. 2d 913, where this court had under consideration the question of the owner of a red bull allowing it to run upon the open range in violation of a state law. In that case, certain citizens finding themselves aggrieved by reason of the animal mixing with their blooded stock, proceeded to castrate the bull, and we held that they could not be convicted under the state “malicious mischief” statute. This case came under a direct and specific statute, 4 O. S. 1941 § 96, making it unlawful for the owner of certain livestock to permit the same to run at large in this state.

Defendant bases his main contention upon the ground that the act of the prosecuting witness in placing the sign upon the porch created a nuisance, and that it was a direct violation of an ordinance of the city of Tulsa, and, as a private citizen, he had the right to abate the same by tearing it down and destroying it.

We have read many cases bearing upon the right of a private citizen to abate a nuisance. A full discussion is given in 46 C. J. 755 et seq. We shall not quote the text. It deals mostly with the action of a court of equity, and has reference to civil procedure. The right of an individual to abate a nuisance is recognized, hut a careful reading of the entire text reveals that distinctions are made even by a court of equity, and that such courts will take into consideration the nature of the nuisance to be abated, its direct or harmful results to the party, and whether the nuisance may be abated without a trespass upon the land or premises of another.

This distinction ivas clearly drawn in the case of Hummel v. State, supra. There an injury was being inflicted that was irreparable, and demanded immediate action, and did not necessitate the entering upon the premises of another. It was recognized as a damage to the property, as distinguished from a damage to the person.

It is generally recognized by all the authorities that notice shail be given before the abatement of a nuisance where it is necessary to enter upon the property of another to abate the same. The statute above quoted, 50 O. S. 1941 § 15, provides that “reasonable notice must be given to him before entering to abate it.”

The fact that the defendant is an attorney at law does not affect the merits of this case, except that it may be assumed that he knew the law and should have respected the same. We are justified in finding from the record that the prosecuting witness did not know of the existence of the city ordinance; that she had no notice from the city authorities to remove the sign and that the defendant had made no such request of her before summarily removing the same, tearing it into pieces, and informing her that he had a right to do so, and that he would tear up any other sign she might place there in the future.

Defendant insists that he did not act with malice, and for this reason the charge against him could not stand. We have examined a number of authorities and it is generally held that malice may be inferred from the conduct of the party. It is generally held that this is a question of fact for the jury, and the court should instruct the jury as to this issue. In the instant case, defendant was tried before the court without a jury. Therefore, no instructions were given. Under .these facts, the presumption is that the court considered the law as applicable to the facts in a proper manner. At the time the court pronounced judgment and sentence, he said:

“There is no doubt about it at all — Miss Eversole was committing a misdemeanor by having the sign up there, but there was a remedy at law, and the defendant, being a lawyer, well knew, better than any other class of people — he would know. He failed, neglected and refused to avail himself of the legal process which he was entitled to use to have that sign removed.
“Among other principles of law, there is one very basic one, that I hope will never be abated in this country, and that is, you don’t dare to use more force in the defense of yourself and your property than is necessary, and you must not use that force yourself when you can summon the law to do that for you.
“There is not a scintilla of evidence here to show that the defendant at bar ever went over to the place where this sign was and talked to anybody at the place. There is not a scintilla of evidence before me to show he ever came to court and filed any kind of instrument to enforce this law which he says and alleges Miss Eversole violated by having this sign up, and bringing the matter to issue before the proper tribunal here in a pacific manner and let if be decided according to law, as to what should be done about that matter.
“I am very sorry that these matters have to come up. I cannot understand, exactly, how these intelligent people would ever have such a misunderstanding as that. Both of these parties I consider very high grade people. I am sorry that these things do come np, bnt where the evidence shows it, I cannot do anything else. I find the defendant guilty of the charge and assess a fine of $18 and costs.”

In the case of Commonwealth v. Byard, 200 Mass. 175, 86 N. E. 285, 287, 20 L. R. A., N. S., 814, it is said:

"We are of opinion that a manifestly injurious act, done willfully in reckless disregard of the rights of others, is done wantonly within the meaning of the statute. National Folding Box [& Paper] Co. v. Robertson’s Estate, C. C., 125 F. [524], 525; Werner v. State, 93 Wis. 266, 67 N. W. 417; 30 Am. & Eng. Enel, of Law (2d Ed.) 2-4. The jury were further instructed that if the defendant, acting as a reasonable man, was justified in believing and honestly believed that he had the authority that he exercised, he was not guilty; but if they found that if he had taken a.ny proper precaution to learn of his rights and duties as tree warden he would not have acted as he did, and found that he was grossly negligent in the performance of his duties as tree warden, they might find that he acted wantonly. Willfully to do an irreparably injurious act without trying to ascertain what his rights and duties were, and to go on in gross negligence of his duties, indicated a spirit of wantonness and reckless disregard of right and wrong in his conduct affecting others. We are of opinion that the instructions on this branch of the case were substantially correct, and that the defendant’s requests were rightly refused.”

See, also, the case of Lewis v. State, 55 Okla. Cr. 182, 27 P. 2d 363.

We have carefully examined the record in this case, and the law as applicable thereto. Cases may be cited upholding the contention of the defendant, and also that of the city. We have reached the conclusion, however, that it would be unwise for this court to establish the principle that one has the right to take the law into his own hands as the facts in this case reveal, and thereby attempt to enforce the law himself, without having appealed to the officers to enforce the same, or without having given any notice to the parties to remove what he considered to be a nuisance. To uphold this procedure could very easily result in serious trouble in the future, in this state. Defendant had the right to present this matter to the public officers whose duty it is to enforce the law. He also had the right to enter the courts in a civil case and ask for redress and relief. There is very grave doubt in our mind that a court of equity ivould have granted him injunctive relief under the facts as here presented. If this be true, how much less would be the reason for granting relief from a direct violation of the city ordinance in a criminal case.

We are of the opinion that the judgment and sentence of the municipal criminal court of the city of Tulsa should be affirmed; and it is so ordered.

JONES, J., concurs. DOYLE, J., not participating.


text:
    HOWARD LANCASTER v. STATE.
    No. A-10330.
    Jan. 24, 1945.
    (155 P. 2d 548.)

      Wyatt, Wyatt & Edwards, of Shawnee, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty Gen., for defendant in error.
   JONES, J.

The defendant, Howard Lancaster, was charged in the district court of Pottawatomie county with the crime of rape in the first degree; was tried, convicted, and sentenced to serve 35 years in the State Penitentiary, and has appealed.

It was the theory of the state that the defendant was guilty of having sexual intercourse with a 13-year-old girl Avho was employed to work at his home taking care of three small children while the defendant and his wife were working. Tbé particular offense relied upon by the state for conviction is alleged to have occurred during the noon hour on May 27, 1941. The prosecutrix gave birth to a child on December 31, 1941, allegedly as a result of the acts committed by the accused.

It is first contended that the testimony of the prosecutrix is so improbable and incredible as. to require corroboration by other evidence as to the principal fact to sustain a conviction, citing the rule laid down by this court in a large number of cases including McDonald v. State, 61 Okla. Cr. 287, 67 P. 2d 806; Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Howard v. State, 79 Okla. Cr. 247, 153 P. 2d 831; De Witt v. State, 79 Okla. Cr. 136, 152 P. 2d 284.

We do not think from an examination of the record that the testimony of the prosecutrix herein is such as would be described as almost incredible or inherently improbable so as to come within the rule of law announced in the above cases. In addition, Ave find corroboration of much of the testimony related by prosecutrix, although there were no eyewitnesses to the principal act charged.

The prosecutrix testified that she commenced working after school hours and on week ends taking care of three minor children of defendant and his wife, the oldest of which ivas nine years old, during the month of March, 1941. The wife of defendant was a sister to the prosecutrix’ stepmother. All of the parties concerned lived in the toAvn of St. Louis. Prosecutrix stated that the defendant had sexual intercourse with her at various times after she commenced working at his home. That as quickly as the school ended on May 16, 1941. she started working daily at defendant’s house, doing the housework and talcing care of tbe small children. She was unable to fix any definite date that the acts were committed by the defendant, except the date of May 27, 1941. which she fixed because it ivas the birthday of her half-sister. The prosecutrix stated that the defendant came home during the noon hour on that date and sent the small children outside the house and locked the door. That he took her into a bedroom and accomplished the act with her at that time. She described in detail just Avhat was done. She stated afterward that her clothes were bloody and she washed them. That she did not tell anybody because she was afraid to tell, as she was scared of what the defendant might do to her. The prosecutrix further testified that she had never gone with any boy in her life and had never had sexual intercourse with any other person than the defendant. That the defendant and his ivife separated on January 18th, and she quit Avorking for them on that date and returned to her home. That her last menstrual period was on April 21st, and she finally told her father what had happened in July when it became apparent that she was in a pregnant condition. The prosecutrix stated that the defendant had sexual relations with her about four or five times.

Dr. Gallaher testified that he examined the prosecutrix at the request of the county attorney, on July 31, 1941, which was the date the complaint was filed against the defendant. That in his opinion, the prosecutrix Avas about two or tAVO and one-half months pregnant at that time. That he gaA'e her tests for both syphilis and gonorrhea and the tests Avere negative, which indicated that she had neither A'enereal disease.

The father and stepmother of the prosecutrix each testified that prosecutrix had started working for the defendant after school hours and on week ends before school was out, and that she started staying at the defendant’s house ail of the time as quickly as school ended on May 10th. Each of them corroborated the statement of the prosecutrix that she had not had dates with boys and that she was never away from home after night.

The contention of the defendant that the testimony of the prosecutrix implicating the defendant is incredible is based chiefly on the testimony showing that the baby was born to prosecutrix 219 days after the act of May 27th was committed. The testimony of the doctor was that the normal period between the date of conception and the date of birth of a normal child is approximately 280 days from the last menstrual period, or 266 days from the date of contact.

The physician who attended the prosecutrix at the birth of her child stated that he considered the baby prematurely born, That in his opinion, the baby was born about eight months after conception.

The record discloses that the child was born 254 days from the date of the last menstrual period, which would place the birth just 26 days before the normal period of 2S0 days described by the doctor, which is sufficiently close so that contention of the defendant that testimony of prosecutrix is incredible cannot be sustained on that theory.

The defendant further contended that he has the syphilis and that, since both doctors testified that prosecutrix was not infected, it conclusively showed that he did not commit the acts related by the prosecutrix. In this connection, defendant testified that his wife gave him the syphilis in the latter part of 1940, and that he commenced taking treatments for said disease at that time.

To rebut this testimony of defendant, the state recalled one of the doctors who testified that a male who had been on steady treatment for syphilis for three months would no longer be considered infectious and could not transmit the disease by sexual intercourse. That the medical profession generally considered that a person would be out of the infectious stage of syphilis after three months’ treatment. Under the testimony of the defendant, he had been treated for syphilis for about five months before the prosecutrix started staying at his house.

After a full consideration of the entire • record, it is our conclusion that the testimony of the state and the defendant raised disputed issues of fact which were in the exclusive province of the jury to determine. That the testimony of the state was sufficient, if believed by the jury, to sustain the conviction.

It is next contended that the punishment assessed the defendant is excessive and so unusually severe and cruel that this court in the furtherance of justice should modify it to the minimum punishment of 15 years. Attached to the brief of defendant is a copy of a letter written by the county attorney in which he states that there was considerable tension developed at the trial and that the jury’s fixing of the penalty of 35 years was a shock to him, as he thought it should have been fixed at 15 years or 20 years.

Regardless of how great a shock it was to the county attorney to see a jury give a grown man 35 years for raping a 13-year-old girl, by taking advantage of the fact that she was employed in his own home, we can find no mitigating circumstances that would impel us to say that in the furtherance of justice the punishment should be modified. We have just recently sustained a conviction for 37 years for attempted rape. Collins v. State, 59 Okla. Cr. 18, 55 P. 2d 790; Ex parte Collins, 76 Okla. Cr. 163, 135 P. 2d 61.

I'Ve feel that under the circumstances, if we should modify this judgment, we would be exercising the power of clemency instead of performing an act in the furtherance of justice.

The judgment and sentence of the district court of Pottawatomie county is affirmed.

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


text:
    MACK PRITCHETT v. STATE.
    No. A-10356.
    Jan. 24, 1945.
    (155 P. 2d 551.)

      Dennis Bushyhead, of Claremore, Frank Leslie, of Tulsa, and W. Lee Johnson, of Pawnee, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Mack Pritchett, was charged in the district court of Tulsa county with the crime of murder, was granted a change of venue to Pawnee county, where he was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of ten years in the State Penitentiary. From this judgment and sentence he has appealed.

All assignments of error may be considered together. This necessitates a review of the evidence.

The charge in this case was the outgrowth of the death of Donald Roland Lloyd, age 18 years. The deceased and Sam Bellmard, age 16 years, were residents of the city of Tulsa. On January 24, 1942, about 1.0 o’clock in the morning, they left their respective homes for the purpose of going to the country. They both carried 22 rifles. They went into a field which adjoined'the home of defendant, located at the edge of the city of Tulsa. Situated in the field, in a “draw” in close proximity to the Pritchett home, was an old abandoned automobile top. These boys were seen taking something from the automobile top, which later proved to be five pints of whisky. They also took a pint of gin from a gunny sack, which they found in the field nearby. The wife of defendant went out and frightened the boys away, but seeing they had guns, she did not speak to them. About noon her son, Lee G-lenn (step-son of defendant), came home, and being-told by his mother of the presence of the b.oys, he went in his car until he found them in a nearby field, and demanded that they return the liquor they had stolen. They went to a haystack where they had hidden the liquor, and gave him the one pint of gin, but not the whisky, which they left hidden in the haystack. Glenn had a 22 rifle with him.

The two boys then decided to go fishing in Mingo creek, which was near by. Late in the evening, they returned to the hay stack to get the whisky and found that it had been taken away. They then decided to steal some more, but to wait until it got dark so that they Avould not be detected. They finally left the haystack and crawled out toward the Pritchett home, but heard the dogs begin to bark, and laid down on the ground to wait until it got darker.

The defendant was a professional bird dog trainer, and had a number of fine bird dogs in his pens near his home. He also raised game chickens, and other chickens which ho and his wife sold to the market.

According to the testimony of Sam Bellmard, after the boys had waited on the ground for a short while, they heard a screen door slam, and then saw a form pass in the light of a window of the Pritchett home, and immediately afterwards two shots were fired. Another shot was fired, and later several more. He testified that he and Lloyd were talking, hut after the third shot was fired, Lloyd did not answer when he spoke to him. That on examination he found that Lloyd’s head was bleeding, and he attempted to pick him up, but could not, on account of his weight. He then “hollered — I hollered as loud as I could. I hollered, ‘You shot a boy out here and please quit shooting.’ ” He testified that he “laid there quite a while,” and then got up and ran to the Mack Pritchett home, and advised Mrs. Pritchett that a boy had been shot.

About this time Nellie Roberts and John Glenn, daughter and son of Mrs. Pritchett, returned from the grocery store, and upon being informed that someone had been shot, Nellie Roberts telephoned for an ambulance, secured a flashlight, and she and John Glenn went in search of the boy. They could not find him, and returned to the house, and Sam Bellmard, who was still in the Pritchett home, went with her and they found the deceased lying in the field, just 206 yards from the Pritchett home. Sam Bellmard testified that he told them that he had accidentally shot his companion. He went in the ambulance to the hospital in Tulsa, and young Lloyd died before reaching the hospital as the result of a shot in the head by a 22 rifle.

At the time Sam Bellmard came to the Mack Pritchett home after the shooting, the defendant testified that he had gone into the chicken coops and dog kennels for the purpose of looking after the chickens and dogs. He returned to the house just at the time his step-daughter, Nellie Roberts, came into the house and reported that she could not find the body of the boy who had been shot. He started to go in search of the boy, but was called into the house by his wife, who ivas very nervous, and afraid to stay alone. He remained in the house until the body was found, and the ambulance left. Later he and his stepson, John Glenn, went to Shell creek, in Osage county, where a chicken pit was located, and where game chickens were fought. Later in the night, the defendant and his step-son; John Glenn, were arrested there, and placed in the Tulsa county jail. Defendant was charged with the murder of Donald Roland Lloyd.

It was disclosed by the evidence and admitted by the defendant that just before leaving for Shell creek, on the night of January 24th, John Glenn picked up the 22 rifle, which the defendant had shot and left on or near the concrete porch, and stated to defendant that he was going to dispose of the gun; and that when he and defendant started to get in the car to go to the chicken fight, about 20 minutes after the ambulance left, John said he was going to throw the gun away. That when they got to Mingo creek, John got out of the car, took the gun apart, and threw part of it on one side of the bridge, and part of it on the other side. This gun was later found by the officers and introduced in evidence, and defendant admitted it was the gun he picked up in his home and fired on the night of January 24, 1942.

The witness Sam Bellmard admitted on the witness stand that he and deceased had stolen the whisky as above stated, on January 24, 1942, and that they had on other occasions stolen other whisky from this place, which they had sold in the city of Tulsa. He admitted that when he went to the Pritchett home after the shooting he told them he had accidentally shot the deceased. He also told the ambulance driver the same story, and told the officers of Tulsa county and the assistant county attorney that he accidentally shot him. It was not until later in the evening, in the office of the county attorney, when confronted by the assistant county attorney, who said, “This boy did-n’t shoot him,” that he changed his statement and denied firing' any shot. His explanation was that they had stolen the whisky and he thought that if he said he killed Donald Lloyd accidentally he would not be prosecuted for stealing the 'whisky. This is the evidence he gave at the trial of the case.

The two 22 rifles carried by the boys were found by the officers in the field near where the body of Donald Lloyd was found. They were both loaded and had loaded shells both in the magazines and in the barrels. A number of loaded shells were found by the officers on the ground, and although search was made, no empty shells were found.

Defendant, testifying in his own behalf, stated that he was 48 years of age; that he had married his wife, Mrs. Martha Glenn, when he was 46. That she had four children, three of whom, Nellie Roberts, John Glenn and Lee Glenn, testified in the case. That she owned the home where they were living at the time of this marriage, and Lee Glenn lived with them. That Nellie Roberts lived at a different address, and in the home where the Glenns had lived prior to his marriage with Mrs. Glenn. That his wife and her daughter, Nellie Roberts, had been engaged in the illegal sale of intoxicating liquor in the city of Tulsa prior to his marriage with Mrs. Glenn, and he knew of such illegal business. That his wife had been convicted in the federal court at Fort Smith, Ark., and had served her sentence after they were married. That upon her release from prison, they had returned to their home, and she had not been engaged in the liquor business since that time. That he personally had never engaged in the illegal sale of liquor, but his step-daughter, Nellie Roberts, and her brother had brought whisky to his premises and concealed the same, and that he had known of this. That the whisky and gin stolen by the boys from the abandoned automobile on January 24, 1942, had been placed there by his step-daughter, Nellie Roberts, but he had no personal knowledge of its being there, and that he had not been informed by anyone that the boys had stolen the whisky until after the Lloyd boy was found shot.

He testified that he had been engaged in the business of training bird dogs for many years. That he'trained them for field trials, and showed that this business was not only legitimate,' but remunerative. He also raised chickens which he and his wife sold on the Tulsa market, and raised game chickens which he sold to those engaged in fighting them. On the morning of January 24, 1942, he was engaged in training a bird dog near Claremore, for the purpose of entering field trials in Texas. He returned home about 4 o’clock in the afternoon.

The time element as to when Donald Lloyd was shot, and as to whether it was dark, was one of the issues in this case. Two disinterested witnesses, R. L. Fesemeyer and L. B. Holt, testified that they were interested in bird dogs, and that the defendant was training and boarding three dogs belonging to Mr. Fesemeyer. That they left Tulsa on the evening of January 24, 1942, and arrived at the home of defendant about 6:30. That they stayed there about 45 minutes, and that it was between 7:15 and 7:30 when they left. They gave in detail their actions while there. Both testified that it was dark when they got there, and when they left, and'that it was necessary for them to turn on their headlights. Mr. Fesemeyer testified that he turned on the side lights of his car so that he could locate it when leaving.

Mrs. Martha Pritchett, the wife of defendant, Nellie Roberts, John Glenn, and the defendant all testified that it was dark at the time these parties left, and that it was dark at the time the shots were fired by the defendant. We have heretofore stated that the Avitness Sam Bellmard testified that they Avaited until about dark before moving from the haystack, and that they laid on the ground for 15 minutes before the shots Avere fired.

The officers testified that they measured the distance from the Pritchett, house to AAdiere the body of the deceased AATis found, and it Avas 206 yards.

The defendant testified that Avhen he heard the dogs barking and the chickens making a noise, he picked up a 22 rifle and stepped to the porch and fired it twice in a northwesterly direction. That he did not see or hear anyone at the time he fired, and that the shots were fired only for the purpose of frightening away any dog, or any one, causing the disturbance. He testified that chickens and other property had been stolen from him on different occasions prior to this time.

The witness Sam Bellmard testified that as he went to the house, and when he crossed the yard fence, he looked back and could see a light object Avhich he thought was the body of Donald Lloyd. The evidence revealed that Bellmard was wearing a light blue shirt, and that Donald Lloyd, Avas Avearing a light tan shirt. An almanac was introduced in evidence, Avhich showed that the sun set at 5:25, and that the moon rose at 12:20, on January 24, 1942.

From the above evidence it is almost conclusive that it was dark at the time the shots were fired by the defendant, and is somewhat doubtful whether an object such as the deceased would have been visible to the eye at a distance of 208 yards at that time.

The court instructed the jury upon murder, manslaughter in the first degree, and manslaughter in the second degree: ■

“You are instructed that homicide is manslaughter in the first degree in the following cases:
“First: When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second: When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is committed under circumstances as constitute justifiable homicide.
“Third: When perpetrated unnecessarily while either resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.” Tit. 21 O. S. 1941 § 711.

In addition to this instruction, the court gave the following:

“Instruction No. 13. You are instructed that any person ivho wilfully discharges any species of firearm, airgun, or other v eapon, in any public place, or in any place where there is any person to be endangered thereby although no injury to any person shall ensue, is guilty of a misdemeanor.
“Instruction No. 14. You are instructed that if you believe and find from the evidence in this case beyond a reasonable doubt that the defendant, Mack Pritchett, at and in the County of Tulsa, State of Oklahoma, on the date alleged in the information, unlawfully and wilfully shot off his 22 rifle, and you further believe and find from the evidence beyond a reasonable doubt, that the deceased, Donald Roland Lloyd, was killed by the discharge of said 22 rifle in the hands of the said defendant, Mack Pritchett, although without any intention or premeditated malice or design on the part of the said Mack Pritchett to shoot and kill the said Donald Roland Lloyd, and you further believe and find, beyond a reasonable doubt, that said act was wilfully and unlawfully done, in violation of the law making it a crime to shoot or discharge any species of firearm, airgun, or other weapon, in any public place, or in any place where there is any person to be endangered thereby, then and in that event you will find the defendant guilty of manslaughter in the first degree, and so say by your verdict; on the other hand if, after a careful and fair consideration of all the evidence in this case, you have a reasonable doubt of the guilt of the defendant, you will give him the benefit of such doubt and acquit him.”

It is contended that the court erred in giving these instructions, for the reason that the evidence did not justify the giving of the same, it not having been shown that the defendant had committed a misdemeanor, as defined by the statute.

We have been unable to find a case from this court passing upon the identical question raised by counsel, and counsel failed to cite any.

The above statute seems to be divided into two parts: First, a “public place;” and, second, “any place where there is any person to be endangered thereby.”

It may well be conceded by all that the evidence does not justify the finding that the gun in the instant case was fired in a “public place.” The defendant lived in the country. He was on or near the porch of his own home. Tlie gun was fired into an open field. Certainly this was not a “public place.” The phrase “in a place where there is any person to be endangered thereby” to our minds means that the party discharging the gun would have to either be possessed of some information, or liaise reasonable grounds to believe that some person was in the “place” where the firearm was discharged. If this were not true, any person who discharged a firearm, as described by the statute, where one was injured, would be guilty. The mere firing at a bird, or at an animal, if some one were injured, wounded or killed, would make one guilty, even though he be ever so innocent. There can be no question that the defendant in this case was convicted of manslaughter in the first degree by reason of the fact that the above instructions were given, and that under such instructions the jury came to the conclusion that the defendant was committing a misdemeanor at the time he fired the shot. We do not think the statute can be so construed, and the giving of the instructions was prejudicial to the defendant.

The case of Palmer v. State, 78 Okla. Cr. 220, 146 P. 2d 592, although not exactly similar, is somewhat like the case here under consideration. In that case the defendant and deceased were fighting, and the deceased was knocked or fell to the ground. His head struck the pavement, and as a result he died. The defendant was convicted of manslaughter in the first degree, and sentenced to four years in the penitentiary. That case was reversed for the failure of the court to properly instruct the jury upon the question of excusable homicide and the commission of a misdemeanor.

Here the court submitted an instruction giving the words of the statute as to excusable homicide, but also gave an instruction upon the commission of a misdemeanor, which in our opinion.ivas not justified by the evidence. In the instant case this instruction was duly excepted to by the defendant, and defendant’s conviction of manslaughter in the first degree was, in our opinion, the result of this instruction.

We now consider the record with reference to manslaughter in the second degree. The jury, under the circumstances of this case, could have found the defendant guilty of culpable and criminal negligence in firing the shot Avhich killed the deceased. It could have found that the defendant Avas guilty of culpable or criminal negligence in not firing the gun into the air, instead of straight ahead; or that he was guilty by reason of firing it at all, under the circumstances. Such a verdict under the manslaughter in the second degree statute could have been upheld, but under the facts here presented, a judgment and sentence of first-degree manslaughter by reason of the commission of a misdemeanor cannot be sustained.

A post mortem examination of the deceased Ayas performed, and a piece of lead was taken from the brain. It was mashed, and weighed 2.1 grams, which was seven grams less than its original weight. The state did not offer any expert testimony, but the defendant offered a witness, Edward J. Mace, A\rho was employed by the J. W. Megee Sporting Goods Company of Tulsa as a gunsmith, and Avho testified as to bullets fired from 22 rifles, both longs and shorts, and who testified that the shot taken from the brain of deceased could not have been fired from the gun owned and shot by the defendant.

This testimony, together Avith all the testimony in the case; Avas a question for the jury, and the judgment and sentence would not be set aside upon this evidence alone. The question of whether defendant fired the shot that killed the deceased was a question of fact for the jury, from all the facts and circumstances in the case.

Defendant presents as error the refusal of the court to give requested instructions which presented to the jury the question of the right of the defendant to protect his property, and, under certain circumstances, the right to kill in defense thereof.

In the first place, the deceased was not upon the property of defendant, but in an open field adjacent thereto. No demonstration was being made by deceased toward the defendant, and the facts did not justify the court in presenting this issue to the jury. Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375; Armstrong v. State, 11 Okla. Cr. 159, 143 P. 870; Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046; Jackson v. State, 49 Okla. Cr. 337, 293 P. 567; Jones v. State, 59 Okla. Cr. 53, 56 P. 2d 423.

A reading of this record convinces one that this defendant was convicted of manslaughter in first degree upon the mistaken belief that this killing was brought about by defendant’s commission of a misdemeanor at the time of the shooting. And also by the reputation of defendant’s wife, her daughter Nellie Roberts, and sons John and Lee Glenn. The records of this court reveal that Nellie Roberts had been convicted upon numerous occasions for violation of the prohibition laws in Tulsa county, and her reputation as a violator of the prohibition laws was bad. The evidence revealed that she often hid and concealed intoxicating liquor on the premises of her mother, the wife of defendant, during the time she was operating a place of business in the city of Tulsa. The liquor stolen by deceased and his young companion on the date of the killing had been placed in the abandoned automobile just a short time prior to the time it was stolen by the boys. It is further revealed that defendant’s wife had been engaged in the sale of liquor prior to her marriage to defendant, and that she had been indicted in the federal court at Fort Smith, Ark., for conspiracy in connection with a violation of the liquor laws, and served her sentence in the federal prison after her marriage to defendant. The evidence reveals that defendant knew all of this at the time of his marriage, and with this knowledge his acts may not be condoned.

The defendant had been convicted in Tulsa county of the crime of unlawful possession of intoxicating liquor, and at the time of his trial in the instant case, that case was on appeal to this court. Since that time we reversed the ease, for the reason that the officers making the raid did not have a search warrant, 78 Okla. Cr. 67, 143 P. 2d 622. By reading the record in this case, one can but be convinced that the liquor for which defendant was being prosecuted in that case and which was found hidden near the chicken house was the property of, and had been concealed there by his step-daughter, Nellie Boberts. Yet it might be observed that it was concealed on his premises with his knowledge and consent.

In his argument to the jury, and while that case was on appeal, the assistant county attorney referred to the matter of defendant’s conviction. This, of course, was error, but alone probably not sufficient to reverse the case under the holdings of this court. His exact words were :

. . and yet from the record in this case, twelve jurors in Tulsa county found him guilty of possession of intoxicating liquor. Mr. Johnson: Object to that statement as not borne out by the record and not true. The Court: I will have to state to the jury that the record does not bear that situation out, as you have made, Mr. Lassiter. Mr. Lassiter: A conviction. The Court: You went further to say before a jury.”

After a careful review of this record, we have come to the conclusion that this case should be reversed and remanded, and that unless the state has additional testimony which would justify the court in presenting the issues of murder, or manslaughter in the first degree, that the only issue to- be submitted would be that of manslaughter in the second degree. We do not feel justified in modifying the judgment and sentence. The punishment for manslaughter in the second degree runs from a fine and jail sentence to a maximum of four years in the penitentiary. If the defendant is retried on that charge and should be found guilty, we think it best that a jury should decide the punishment to be given after hearing all the evidence presented. Of course, if the defendant is found not guilty, there will be no punishment.

For the reasons above stated, the judgment and sentence of the district court of Pawnee county is reversed, and the case remanded.

JONES, J., concurs. DOYLE, J., not participating.


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    W. M. HOEHN v. STATE.
    No. A-10349.
    Jan. 31, 1945.
    (155 P. 2d 730.)

      Zink & Cunningham, of Hobart, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, W. H. Hoehn, was charged, by information in the county court of Kiowa county, on August 27, 1942, with the crime of selling intoxicating liquor, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and pay a fine of $50 and the costs, and he appeals.

Petition in error and case-made Avere filed in this court on November 7, 1942. No brief has been filed in this case and no oral argument presented.

Where defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of selling intoxicating liquor. The eiddence is sufficient to sustain the judgment and sentence, and the court’s instructions were applicable to the Iuav and facts. On the record before us Ave have discoArered no error Avhich would warrant a re-Arersal of the judgment, and it appears that the defendant Avas accorded a fair and impartial trial.

Tbe judgment of the trial court is accordingly in all tilings affirmed.

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