text:
    GROVER HAMILTON v. STATE.
    No. A-6150.
    Opinion Filed May 26, 1928.
    (267 Pac. 684.)
    W. L. Chase, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Adair county, Okla., of the crime of having in his possession intoxicating liquors, with the unlawful and felonious intent to barter, sell, give away, and otherwise furnish the same. This being a second offense, the sentence was imprisonment in the penitentiary at McAlester for a period of one year, and to pay the costs of this prosecution. Motion for new trial was filed and overruled, and exceptions duly saved, and appeal to this court perfected.

The information in this case was filed October 15, 1925, charging that the offense alleged in this information was the second offense against the defendant; the defendant having heretofore been convicted of violating the prohibitory laws and paid the penalty. The state introduced the record showing the former conviction of the defendant, and then called Jesse Terrill, who testified, in substance, that he was a deputy sheriff on the date of the alleged offense, and that he went to the defendant’s home with the sheriff.

On cross-examination he said the sheriff wanted him to go down there with him; the sheriff said he had a search warrant. Objection was interposed by defendant’s counsel as to witness testifying as to what the sheriff told him he had, which objection was by the court overruled, and defendant duly excepted. Witness said they made a search of defendant’s premises, and found some whisky; it was concealed in the barn loft among some shock fodder. The defendant on that day was down in the corn field plowing. They did not place the defendant under arrest. Afterwards charges were lodged against him. On cross-examination witness stated:

The reason they did not place defendant under arrest^ “He was already under bond,” so the sheriff said. “I did not have a warrant, and I did not know there was any whisky there before I went there.”

On redirect examination witness was asked these, questions over the objection of the defendant:

“Q. You were searching there under the directions of a search warrant Mr. McCasland had? A. Yes, sir. (Defendant saved an exception to the ruling of the court in overruling the objection.)”

John Palone, called as a witness for the state, testified that he was deputy sheriff, and that he went to defendant’s home with Jesse Terrill and Tom McCasland:

“Q. Some one of the members had a. search warrant, did they? A. Tom McCasland. Gilly Pierson was with us, too, I believe.
“Q. Did you make the search of any premises under that search warrant? A. Yes, sir. (Defendant’s objections were renewed, and were overruled by the court.)”

Witness then stated they found about one-half gallon of whisky in the barn loft, and attempted to identify the whisky. The court permitted the witness, over the objection of defendant, to smell the whisky and attempt to identify it by its smell as being the same whisky that was found in the barn; defendant excepted to the ruling of the court in permitting the witness John Palone to testify that the sample of whisky he examined by smelling was the same whisky found in defendant’s barn.

On redirect examination, the state undertook to show by the witness that they had a search warrant, and defendant told them to help themselves, and that they made the search under the search warrant. This is all the testimony on behalf of the state. The defendant did not introduce any testimony, but elected to stand on the testimony introduced by the state.

The defendant has assigned five errors alleged to have been committed by the court in the trial of his case. The first error assigned is,

“The court erred in overruling plaintiff in error’s motion for a new trial.” ■

This assignment is the only error we deem necessary to consider, as the other errors complained of are included in it.

Section 7013, C. O. S. 1921, is as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some .part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

The defendant in this case was charged with the second violation of the prohibitory statutes, and, if convicted, the punishment imposed would be imprisonment in the penitentiary. The state, in attempting to prove the guilt of the defendant, called two witnesses who testified that Tom MeCasland, the sheriff, in the absence of the defendant, told them he had a search warrant to search the residence and premises of the defendant. Neither of them testified that they saw the warrant, and the state did not offer any testimony to show that a copy of the warrant, as provided by section 7009, C. O. S. 1921, was served on the defendant. The witnesses admit they searched the residence and premises of the defendant, but fail to show any authority for so doing, except that Tom MeCasland had told them he had a search warrant. The statement of the sheriff made to the deputies, in the absence of the defendant, is not admissible to show that the officers had complied with the law by making the proper affidavit under the statute to give the court jurisdiction to issue a search warrant to search the home of the defendant.

The evidence of the state witnesses was inadmissible, and the court erred in overruling the objection of the defendant to the admission of the same. No reason is given why Tom MeCasland was not called by the state when the defendant interposed his objection to the hearsay statements of Terrill and Palone, nor does the state attempt to show by any officer in the county or by the affidavit itself, or the search warrant, that such application was ever made or the writ issued.

This court has repeatedly defined what was necessary for the purpose of securing a warrant to search a residence of a party charged with a crime, and defined what grounds should be contained in the affidavit and warrant.

In Cudjo v. State, 34 Okla. Cr. 199, 245 P. 906, the court said:

“A 'private residence is immune from search or seizure, unless a showing is made by affidavit that such residence” or part “of it is a place of storage * * * or place of public resort.”

In Wofford v. State, 40 Okla. Cr. 18, 266 P. 494, this court in the first paragraph of the syllabus says:

“An affidavit for search warrant must particularly describe the place to be searched, and the search warrant must describe the place to be searched so that it can be ascertained from an examination of the warrant, and with such reasonable particularity that no discretion as to the place to be searched is left to the searching officer.”

In this record we find the usual statement from the witnesses that, when the defendant was told they wanted to search his place, the defendant told them to go ahead, attempting to show by such evidence that the defendant waived his constitutional right, and was willing for them to search. This is not the law, and is usually stated to indicate the defendant does not intend to resist the officer if he has a legal right to search.

A careful examination of the entire record fails to disclose any competent testimony that the officers were acting under a valid search warrant. All the evidence procured was unlawfully procured, and is inadmissible, and defendant’s objection to the testimony should have been sustained.

The case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J. D. RYSINGER v. STATE.
    No. A-6066.
    Opinion Filed May 26, 1928.
    (267 Pac. 686.)
    F. H. Hurst, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, who will be referred to as defendant, was convicted in the county court of Tillman county on a charge of having possession of intoxicating liquor with intent to sell, and was sentenced to be confined in the county jail for 60 days, and to pay a fine of $100.

Only one witness was called, a deputy sheriff, who testified briefly of finding defendant in possession of the gallon and half of choc beer, and that he was apparently negotiating a sale of it to another person. There was no evidence that this choc beer contained as much as one-half of 1 per cent, of alcohol measured by volume, or that it was intoxicating. This court has held many times that, where a liquid claimed to be intoxicating liquor is not made by any standard formula, and that is not per se an intoxicating liquor, this court cannot take judicial knowledge that it contains as much as one-half of 1 per cent, of alcohol, measured by volume. Choc beer is made in many different ways of different ingredients, and may or may not contain as much as one-half of 1 per cent, of alcohol measured by volume. There must be some proof either direct or circumstantial upon this point which will bring it within the inhibition of the statute. When there is no evidence either direct or circumstantial to satisfy this requirement of the statute, a conviction cannot stand.

The case is reversed and remanded.


author: EDWARDS, J.

text:
    GEORGE BAYOUTH v. STATE.
    No. A-5927.
    Opinion Filed May 26, 1928.
    (267 Pac. 687.)
    E. C. Patton, Jos. A. Ramsdale, and Joe Adwon, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

On a petition for rehearing it is earnestly urged that the punishment assessed is excessive and that justice requires that the judgment should be modified. We have again examined the record and are of the opinion that this contention is well founded.

The judgment (39 Okla. Cr. 8, 262 P. 702) is therefore modified to the extent of striking out the imprisonment assessed. The petition for rehearing is overruled. Mandate forthwith.

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


author: DAVENPORT, J.

text:
    JOSEPH HUBKA v. STATE.
    No. A-6747.
    Opinion Filed May 26, 1928.
    (267 Pac. 864.)
    David L. Carter, H. S. Braucht and McLaury & Hopps, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information filed in the district court of Kay county, Okla., on September 30, 1926, charged with the crime of murder by shooting Joe Novot-ny. He was tried and found guilty, and his punishment fixed by the jury at death by electrocution. Defendant has appealed from the judgment of conviction and sentence of death to this court.

The evidence introduced by the state is, in substance, that the deceased and the defendant were brothers-in-law, the deceased having married a sister of the defendant; that the Hubka family had lived for a number of years in Noble county, where they had homesteaded a quarter section of land, the place being the homestead in the name of Anna Hubka, the mother of the defendant; that the father, Joseph Hubka, Sr., died some time during the year of 1919; that shortly thereafter negotiations were conducted for the sale of the quarter section known as the homestead, and that defendant was negotiating with several parties for the sale of the land, and in 1920 the defendant approached Joe Novotny with a proposition for Novotny to buy the land; that in May, 1920, the deceased entered into a contract with Anna Hubka, in the presence of the defendant, for the purchase of the 160 acres, agreeing to pay $18,000 therefor, and on the 29th day of June, 1920, a deed was executed by Anna Hubka to the deceased, Joseph Novotny; that shortly thereafter Novotny took possession of the land and moved on the place; in 1921 oil was discovered upon the land, and the same became very valuable; that, when the oil was discovered, the defendant in this case began to complain that they should have received more money for the land than was agreed upon, and began to demand of the deceased that he pay to his family a sum of money, or divide the mineral rights with them; that in the interim during the time between the time oil was discovered on the land and the date of the homicide the defendant had been demanding of the.deceased moneys for his family, and on more than one occasion had written letters to the deceased. On April 21, 1924, the defendant wrote the deceased a letter, which is in words and figures as follows:

“Oklahoma City, April-21-24.
“Joseph Novotny, Tonkawa, Oklahoma: About thirty days ago I wrote you stating certain facts up to this date I did not receive a word from you. I am not surprised at all because that is the way you have conducted yourself in the past. I have studied you from every angle. And this is the whole thing in a nut shell it is your motto day by day.
“I am doing well and let the others go to hell. I have said to them that they can do me as they like. But to you I say for the last time. That I have been tramped and stomped on all I care to be by you. And before I would have you do this any longer. I would rather see myself in hell. I enclose the five dollars you loaned me.
“I will give you just six days to write or call in person. • Joseph H'ubka.”

The defendant at the time of the homicide was making his home in Marland, Okla., and on September 22, 1926, he left his home and went to Tonkawa, where he met the deceased.

Edward Daniel, a witness on behalf of the state, testified: That his home was in Tonkawa. That on the morning of September 22, 1926, he was at the corner of Seventh and Tonkawa avenue; and about 10 o’clock that morning he saw Joseph Hubka. When I first saw the defendant, I was sitting in front of the Kruger building on the steps. I did not know the deceased during his lifetime. The defendant came running around the corner of the building and hollowed to another man. The other man looked around and! he came up ifand ¡hollowed, “Hey!” and the man looked around, and a shot was fired, and the man fell. I did not see anything in the hands of the man. The defendant was running as he passed me. The man that was killed was out in the street about the length of an automobile from the curb. He was walking ' around in front of one automobile and behind the other. I heard nothing said by the man that was killed; there wasn’t a word uttered. The man who fired the shots was about 8.feet, the best I can remember, from the man he shot. After he fired the shot, the man reeled and fell. Maybe I could have counted ten before he began to shoot again. X can’t tell how many shots were fired; they were fired so fast. After he was through shooting, I jumped and ran right close to him and says: “My God, man, what have you done? You have murdered this man.” Before that he had thrown his1 gun out on the pavement. I was about 24 feet, as near as I can tell, from the party that fired the shots.

Ralph Stone testified: That he was in Tonkawa on September 22, 1926. That he knew the deceased during his lifetime, and also knew the defendant when he saw him. I was standing on the corner of Grand avenue and Seventh Street, right west of the drug store. While standing there, I heard some gunshots, and saw Joe No-votny reeling right behind a car. Directly after that I saw another fellow come out from the east side of the car. After Novotny fell on his back, the defendant came around up to the side of him and shot him. I don’t know how many shots; they were fired so rapidly, and I didn’t realize what it was. all about. After the shooting, the defendant took his gun and throwed it apparently at the deceased; I could not tell from where I was whether he hit the body of deceased. Defendant just stepped back and put his hands on his hips and stood there. All I heard him say was, “He would have done me the same way.”

L. D. Eastman stated: That he lived in Tonkawa. That he knew Joe Novotny prior to his death; also knew the defendant. He was in Tonkawa the morning of September 22, 1926. When I heard the first shots, I was on the corner at Main and Seventh, right at corner of the drug store with Mr. Stone and Mr. Brown. After I heard the shots, I looked around and saw Mr. Novotny was just staggering back behind a car. Then, as Joseph Hubka followed him up, Novotny fell right behind the car, and Joseph stood there and went to .shooting. When the gun quit firing, he drew it up and looked to me like he drove it at his face. I did not see the gun any more after it struck the pavement.

Ralph E. Patterson testified to seeing the shooting and that he picked up the gun. Thelma Brennan and J. R. Milli-gan testified, in substance, to the same facts as the other witnesses.

The state then called Roy R. Carver, Sam Tulk, Mary Eeating, and Emma Palmer, for the purpose of identifying and proving a statement made by the defendant at Ponca City the afternoon and evening of the alleged shooting, in which statement the defendant stated: Novotny was his brother-in-law, and that trouble had been existing between him an Novotny since 1920. That the difference arose between a $1,800 and $2,200 that was to foe paid on the land. The deceased had threatened my life a number of times. He threatened it a week ago last Monday. That was about the 13th day of September, 1926. We was in Tonkawa at the time. There had been no words between us since the 13th of September, 1926, nor has he made any threat against me since that time, and I had made none against him. I left Marland the morning of September 22, 1926, about 6 or 6:30 o’clock. I had my gun with me. It was a .32 automatic. I have owned it for three or four years. I bought it in Oklahoma City. I brought it over there with the intention of killing Joe Novotny. I just decided to kill him this morning. I don’t know whether I killed him or not, but I shot at him. When I threw the gun, I aimed to hit him in the face with it. He was about 10 feet from his car, northwest, when I shot him. I was about 25 feet from him when I shot first. Novotny was going toward his car, and I said to him, “Here is what you promised me, and I am going to beat you to it.” He started to say something, but I did not understand what it was. I don’t know whether Novotny had a gun on him that morning or not. This is, in substance, the testimony in behalf of the state.

The state, over the objection of the defendant, introduced in evidence a photograph of the body of the deceased, which photograph was taken after the body was removed from the scene of the trouble.

The defendant admitted that he killed Joe Novotny, but his defense was that, on September 22, 1926, at the time the killing occurred, the defendant was what is known as a paranoiac (that is, that he was suffering from delu-sionary insanity) ;■ that at the time he was mentally irresponsible. The defendant’s evidence, tooth expert and non-expert testimony, tended to establish such a mental condition of the defendant as would render him irresponsible, incapable of comprehending the consequences of his acts.

Dr. George E. Niemann, called as a witness on behalf of the defendant, testified, in substance: That he was a physician and surgeon, and was chief of staff of surgeons in the Ponca City Hospital. That he had studied nerves and mental disorders for 24 years. That he had examined Joseph Hubka, who was in the courtroom at the time witness testified. That he had examined him on two different occasions. I examined him possibly a week or ten days after the killing of Joe Novotny, and I examined him since that time, and it is my opinion that the patient was suffering with paranoia or delusionary insanity.

Dr. C. E. Northcutt testified: That he was a physician and surgeon located at Ponca City. The last part of September, 1926, he visited the defendant. It was a few days after the homicide. He examined him eight or ten days before the trial; made an examination of defendant’s menr tal condition. The examination continued for about an hour to an hour and a half. By his examination and patient giving a history of his personal complaints, and his action •in making his complaint, and the evidence as he explained these things to me, ¡brought me to the conclusion in the diagnosis that the defendant was suffering from a mental disease. I found paranoia — paranoia (that is, mental sickness), as we are taught by our past experience and from literature by authorities on mental and nervous diseases. I found the defendant in a stage of delusions of persecutions. He had what We term “delusionary insanity.”

A number of other witnesses testify as to the peculiar actions of the defendant, all'tending to show a deranged mind. The state, in rebuttal on the question of insanity, called Dr. A. L. Hazen and Dr. H. 0. Gowey, who testified, in substance, that the defendant’s action did not show him to be insane, and a number of nonexpert witnesses were also called, who testified that in their opinion the defendant was sane.

The testimony in this case on the question of the sanity of the defendant, both expert and nonexpert, is conflicting — the witnesses for the defendant stating that the action and conduct of the defendant was such as to cause them to believe that the defendant was insane; the witnesses for the state testifying that they noticed no action of the defendant indicating insanity, and that they believed him to be sane. There is no conflict in the evidence as to the facts and circumstances of the homicide. The evidence in this case is voluminous, covering more than one thousand pages of record, and it would serve no useful purpose to set out at length all of the objections urged by the defendant as to the errors committed by the court in the admission of testimony and in the instructions.

The defendant, after the conviction, and upon a motion in arrest of judgment, introduced testimony to show that the defendant at the time of hearing the motion was insane, and that the sentence should not be imposed upon him. Expert and nonexpert testimony in support of the motion in arrest of judgment was introduced, and the court found that it did not disclose sufficient facts and conditions to warrant him in calling a jury to determine the mental condition of the defendant at the time the motion in arrest of judgment was being considered, and overruled the motion in arrest of judgment.

The defendant urges as one of his assignments of error that the introduction of the photograph of the body of the deceased was prejudicial to his rights. Under the evidence •in this case, it was not necessary that this photograph should be introduced, and this court is not inclined to say what effect this photograph, in view of the testimony of the eyewitnesses, had upon the jury. It may have been the means of causing the jury to assess the maximum penalty, but in the view we take of this record we do not deem it necessary to further discuss that question, as the testimony is amply sufficient to sustain the conviction of murder.

The question of sanity or insanity at best presents a question of fact for the jury, and, when the jury has settled that question without passion or prejudice in accordance with the evidence, it is not within the province of this court to disturb the verdict of the jury.

After a careful consideration of this case, and the facts and circumstances surrounding the parties at the time of the homicide, there seems to have been a real or imaginary feeling of the defendant that the deceased had done him and his family a grievous wrong, and the evidence tends to show that the defendant believed the deceased intended to remove him and get him out of the way, that this belief, real or imaginary, so weighed on the mind of the defendant until he armed himself with his gun and sought out the deceased and fired the shots that took the life of the deceased. Under the evidence and the law as given the jury in this case, the jury could not have done other than return a verdict of guilty of murder, if they reached a conclusion that the defendant was sane at the time he fired the shots. We are not unmindful that this is an important case, and we have given it that careful study which its importance requires, and a most careful examination revealed nothing in the record that gives us a right to hold that the interest of justice requires a new trial. One of the grounds of the motion for a new trial, and assigned as error, is that the verdict of the jury is cruel and unusual punishment, and not supported by the law or competent evidence.

It is urged that the jury abused its discretion in assessing the death penalty, and that the judgment and sentence should be modified to imprisonment for life. Counsel for both state and the defendant have briefed the question of excessive punishment; the defendant urging a modification of the judgment and sentence, and the prosecution objecting to it.

In a capital case, the law of our state allows the jury, after it has determined the question of guilt, to assess the punishment, which may be death or imprisonment for life, at its discretion. Section 1739, C. O. S. 1921; and, after the jury has returned a verdict saying the defendant shall suffer death, this court, in furtherance of justice, has the power to modify the judgment to life at hard labor. Section 2820, C. O. S. 1921; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; Wilson v. State, 17 Okla. Cr. 47, 183 P. 613.

The duty imposed upon the court of protecting the taking of human life is a grave and solemn one; to take the life of a human being, even when taken by the law, is a trying and grievous task. Considering the whole testimony in this case, we feel constrained to say that we find few palliating circumstances in behalf of the defendant. From the statement of the defendant introduced by the state, it appears that the deceased had threatened to kill defendant or to injure him, and that considerable animosity and enmity existed between the parties with reference to the purchase of a farm of the mother of defendant. In this respect the actions of the defendant differ from murder committed in the perpetration of another crime.

Taking all the facts into consideration and the enmity and feeling that seems to have existed between them, we are of the opinion that the punishment imposed i§ excessive, and that justice requires a modification of the judgment and sentence of death to that of imprisonment at hard labor in the state penitentiary for life, and, as so modified, the judgment herein is affirmed.

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


text:
    DAVE MYERS v. STATE.
    No. A-6165.
    Opinion Filed May 26, 1928.
    (267 Pac. 867.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Oklahoma county on a charge of possession of intoxicating liquor, to wit, 20 gallons of wine, a substance containing more than one-half of 1 per cent, of alcohol capable of being used as a beverage, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

Before the case was called for trial the defendant filed his motion to suppress the evidence, alleging that the justice of the peace was without authority to issue the warrant under which the search and seizure was made, and that said warrant is insufficient in form and wholly void, and further that the complaint on which the said purported warrant was issued is insufficient in form and substance to authorize the issuing of any warrant, the premises searched being the private residence of the defendant. Motion to suppress the evidence was overruled and defendant duly excepted.

The defendant in his argument urges that the affidavit upon which the search warrant is based is insufficient to authorize the officers to' search the residence of the defendant. Section 7013, C. O. S. 1921, is as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

Nowhere in the affidavit is it stated that any part of the residence of the defendant .is used as a store, shop, hotel, boarding house, or place of storage, or that said residence is a place of public resort. The affidavit, containing only general allegations, does not comply with the statute when it is desired to search the private residence of the defendant.

This court has many times held that a search of a private residence, not coming within the language of the Compiled Statutes. 1921, § 7013, is illegal. Cosby v. State, 30 Okla. Cr. 405, 236 P. 906; McClure v. State, 31 Okla. Cr. 60, 237 P. 145; Buxton v. State, 37 Okla. Cr. 402, 258 P. 814.

It is further urged by the defendant in this case that the search warrant, based upon the affidavit herein referred to, is void because it does not run in the name of the state of Oklahoma. An examination of the warrant upon which the officers relied to justify their search shows that the warrant does not run in the name.of the state of Oklahoma, but, after the caption,' which only shows the venue of the court, the warrant is addressed: “To any sheriff, constable, marshal, or policeman in the county of Oklahoma, greeting.” McAdoo v. State, 36 Okla. Cr. 198, 253 P. 307.

We therefore hold that the allegation in the affidavit is insufficient to give the justice of the peace jurisdiction to issue the search warrant, and the search warrant is void for failure to run in the name of the state of Oklahoma, as required by law.

There being no evidence except the evidence secured by the unlawful search of defendant’s premises, the case is reversed and remanded.

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


text:
    HENRY CORNETT et al. v. STATE.
    No. A-6062.
    Opinion Filed May 26, 1928.
    (267 Pac. 869.)

      See, also, 32 Okla. Cr. 326, 240 P. 1116.
    Matson &' Mathers, Henry Sitton, John Roberts, and M. Bristow, for plaintiffs in error.
    Edwin Dabney, Atty, Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, who for brevity will be referred to as defendants, were convicted in the district court of Caddo county on a charge of robbery, and were each sentenced to serve a term of five years in the state penitentiary. Defendant Evinger having left the state and becoming a fugitive, his appeal was dismissed.

On the morning of February 11, 192)4, three persons in a Dodge roadster car drove up' to the First National Bank of Gracemont. Two of them got out and went into the bank, in which the only officer at the time Was J. L. Cummings, bookkeeper, with a customer, C. L. Fowler. The two robbers who entered the bank covered Cummings and Fowler with pistols, forced them to lie down on the floor, and then took about $2,900 in money and $3,200 in bonds, after which they forced Cummings and Fowler in the vault. The other person with them remained in the car, and, after the robbery, the three drove away.

The theory of the ‘state is that the actual robbery was committed by defendants Jack Newman, Paul Evinger, and one Happy Bohannon; that Evinger and Newman, who were not known in the vicinity of Gracemont, entered the bank, and Bohannon, a youth about 21 years of age, remained in the car; that defendants Henry Cornett and Walter O’Quinn planned and staged the robbery, and were the master minds of the transaction. The evidence is somewhat voluminous, and it is, in substance, that O’Quinn was running a hotel at Oklahoma City. Cornett was familiar with the country, and had Bohannon working for him on some land he controlled in Osage county. Both Cornett and O’Quinn had previously been convicted of bootlegging. Bohannon became a a witness for the state, and testified, •in substance, that he had been working for Cornett, as had Newman and Evinger. There was some talk in Osage county of bank robbing, and the parties assembled at the hotel of O’Quinn at Oklahoma City, where the plans were finally made. Bohannon was sent to Enid to get a Ford coupe at the place of John Roberts, which he did, and drove it to the home of Ed Dubois a few miles from Gracemont, and there also came Evinger and Newman. On Friday before the robbery on Monday, Cornett and O’Quinn arrived at Dubois’ driving a Dodge roadster. They drove about the neighborhood looking out the roads and selecting a place to put the “get away” car. Early Monday morning Bohannon, Newman, and Evinger left Dubois’ place. They went to Packard Chapel Church. In some brush near the building they parked the Ford coupe where it would not be observed from the highway, and they then drove into Gracemont with the Dodge roadster, robbed the bank, and fled back to Packard Chapel, concealed the Dodge car, and defendants Evinger and Newman concealing themselves for the time being, and Bohannon drove the Ford coupe to Dubois’ place, where he remained until night. The defendants Cornett and O’Quinn on the morning of the robbery, soon after the other defendants left Dubois’ place, also left, leaving word with Dubois to have the others of the party meet them that night at the Stansberry schoolhouse. That night Bohannon drove back near the Packard Church, got Evinger and Newman, and then went to the Stansberry schoolhouse and got Cornett and O’Quinn, and drove to the place of one Littrel, near Marlow. At Littrel’s they made a partial division of the proceeds of the robbery, but left the Liberty bonds with O’Quinn to be disposed of, a further division to take place later. Dubois corroborated the testimony of Bohannon on several points, that is, that Cornett and O’Quinn came to his place on Friday before the robbery, later left and returned, were there on Monday morning of the robbery, and left word for the parties to meet them that night at the Stansberry schoolhouse; that, when they came there, they were driving a Dodge roadster; that Evinger, Newman, and Bohannon left on Monday morning with the two cars, as testified to by Bohannon. Bohannon later returned, and spent Monday afternoon after the robbery at his place, and left there that night. There is also evidence in part admitted by defendant O’Quinn that, after the prosecution had been instituted, he sent word of an incriminating nature to' Bohannon, and with it his ring. In this particular he was running parallel to Sir Walter Raleigh in his ring episode with Queen Elizabeth. Also defendant Cornett wrote a letter, and sent it by a convicted prisoner to an inmate of the Granite penitentiary, threatening the accomplice Bohannon, closing the letter with an admonition to “tear this up.” Both Newman and Evinger denied that they were at the Dubois home, and denied any connection or knowledge of the robbery.

Cornett and O’Quinn admit they were at Dubois’ place on Sunday before the robbery on Monday, and both say they were at Gracemont the day of the robbery. One Thompson testified that he saw the car of Cornett and O’Quinn not far from the bank just before the robbery. Other witnesses corroborate on other points. Taken altogether, there is no question but that the testimony of the accomplice Bohan-non is amply corroborated by other evidence tending to connect the defendants here, Cornett, O’Quinn, and Newman, with the commission of the offense charged.

The first assignment of error argued is that the court erred in instructing the jury that the minimum punishment for the offense charged is confinement in the penitentiary for a term of five years. The law in force at the time of the robbery, to wit, February 11, 1924, was article 24 of chapter 6, Comp. Stat. 1921, as amended by chapter 85, Session Laws 1923. There has been since a further amendment by chapter 44, Session Laws 1925. It has been held by this court several times that the Statutes of 1923’ and 19'25 are not statutes of definition but of classification, which provide an enlarged punishment for robbery by the use of firearms. Wells v. State, 34 Okla. Cr. 179, 245 P. 1007; Wissinger v. State, 39 Okla. Cr. 324, 264 P. 631; Simpson v. State, 40 Okla. Cr. 58, 266 P. 783.

The information in this case pleads robbery by the use of firearms, and the punishment should have been assessed under chapter 85, Session Laws, 1923, at not less than 25 years in the state penitentiary. Even though the minimum punishment fixed for robbery by firearms was at the time 25 years, yet a robbery by firearms might have been so pleaded that the general statute, article 24, would have applied as to punishment, and not the enlarged punishment, as provided by chapter 85, Session Laws 1923, supra, but here the pleading brings the case within the law of 1923, and it was error for the court to submit as a minimum punishment confinement at 5 years instead of 25 years. In the record before us no exception to the instruction was taken, no requested instruction submitted, and the matter was not called to the attention of the trial court at the trial, nor by the motion for a new trial. No error other than fundamental error will therefore be considered by this court.

It is well settled in this state that an appellant will not be heard to complain of errors which are made in his favor and are harmless to him. In the case of Coleman v. State, 6 Okla. Cr. 252, 118 P. 594, a defendant was charged with perjury, the punishment for which was fixed by statute at not less than 5, nor more than 10, years. The trial court erroneously instructed the jury that the punishment could not exceed a term of 5 years. The jury found defendant guilty, and fixed his punishment at a term of one year. This was assigned as error, and the court in affirming the judgment said:

“* * * Suppose we concede that appellant’s punishment should have been inflicted under the second subdivision of section 2184, which would have required the jury to assess his punishment at not less than 5 nor more than 10 years’ imprisonment, and that the court erred in instructing the jury that they might affix his punishment under the third subdivision of this section, which provides that the punishment should not exceed five years; would this error on the part of the court be one which appellant could complain of? Here, again, appellant is confronted with the doctrine of harmless error, because, if it was an error, it did not deprive him of any right, but clearly inured to his benefit. Upon this feature of the case we are supported by the following authorities: ‘Accused, who was charged with the offense of selling liquor in violation of a city ordinance, cannot complain that the penalty imposed by the police court was that prescribed by the state statute for the same offense, instead of the greater penalty prescribed by the ordinance, as he was not prejudiced thereby.’ Orme v. Commonwealth, 55 S. W. 195, 21 Ky. Law Rep. 1412. In the case of Nichols v. State, 127 Ind. 406, 26 N. E. 839, the court said: ‘Finally, it is contended by appellant that the court erred in rendering judgment against them on the verdict because the jury failed to assess a fine against them as part of the punishment. The verdict, with this exception, is perfect on its face. Of this objection we think it sufficient to say that the appellants should not be heard to complain of the fact that they did not receive all the punishment contemplated by the law which the jury found they had violated. In the case of Griffith v. State, 36 Ind. 406, it was said by this court: “It will hardly be contended we presume that the prisoner can successfully object that the punishment imposed was less than might legally be inflicted.” While it is true that the jury might have imposed a fine in this case in addition to the punishment fixed by their verdict, their failure to do so was error- in favor of the appellants and gives them no cause for complaint in this court.’ The Supreme Court of Arkansas held: ‘A sentence to a fine less than the minimum fixed by statute is an error of which the accused cannot complain; Mansfield’s Dig. Ark. § 2468, providing that a judgment shall be reversed only for error to the prejudice of the accused.’ Bishop v. State (Ark.) 14 S. W. 88.
“In McQuoid v. People, 8 Ill. [3 Gilman] 76, the Supreme Court of that state said: ‘Properly the plaintiff should have been imprisoned as well as fined. No imprisonment is imposed upon the plaintiff. We consider the law upon this point as settled by this court that a defendant in a civil or criminal prosecution cannot assign for error a decision, order, or judgment of a court which is manifestly in his favor,’ —citing cases. In the case of Covy v. State, 4 Port. (Ala.) 186, the court said: ‘The only objection that can be assigned for error on the latter motion (in arrest of judgment) is that the fine assessed by the jury was less than the law of 1826 authorized. To this it may be replied that defendant cannot complain if the fine is less than what the law considers, their just deserts. No one can allege error in his own favor.’ In the case of Ooton v. State, 5 Ala. 465, the court said: ‘The judgment in the present case is for the fine assessed by the jury, and 30 days imprisonment as a punishment for the offense. * * * The defendant cannot object to the irregularity of the judgment; for instead of injuriously affecting his legal rights, it is certainly more beneficial to him than the law authorized.’ In the case of People v. Bauer, 37 Hun (N. Y.) 407, the court said: ‘It had jurisdiction of the person of the defendant and of the subject-matter, and the sentence conforms to the provisions of the statute. The only objection being that the length of term is insufficient, there was therefore no attempt to exert power beyond its jurisdiction. It did not exceed the time authorized by the statute.’ In the case of People v. Rouse, 72 Mich. 59, 40 N. W. 57, it was held: ‘It is no ground of error that a sentence is less than it might have been, so long as it does not involve a different kind of punishment than that allowed by law. * * * In Wattingham v. State, 37 Tenn. (5 Sneed) 64, the respondent was convicted of larceny, and sentenced to two years’ imprisonment. The minimum fixed by the statute was thfiee years. The court held that the rule that a party cannot assign for error that which is for his own advantage applies as Well to criminal cases as to civil proceedings: that the error was formal merely, and could not avail the prisoner. Other cases to this effect are the following: Barada v. State, 13 Mo. 94; People v. Burridge, 99. Mich. 343 (58 N. W. 319); Harmison v. City of Lewiston, 153 Ill. 313 (38 N. E. 628, 46 Am. St. Rep. 893); State v. Evans, 23 La. Ann. 525; People v. Trainor, 57 App. Div. 422, 68 N. Y. Supp. 263.’ ”

See, also, 16 C. J. pp. 1311, 1312, §§ 3092, 3093.

Complaint is also made that the court erred in refusing certain instructions requested by defendants. One of these requests which is particularly stressed submits to the jury the question whether or not Ed Dubois, one ¡of the main witnesses for the state, was an accomplice, and, if so, a conviction could not be had on his testimony. The question as to whether or not a witness is an accomplice is usually a question of fact arising from the evidence, and in such case must be determined by the jury. Where the facts are undisputed, it is ordinarily a question of-law for the court. Where it is a question of fact and a request that the matter -be submitted to the jury is made, the question should be submitted to the jury under appropriate instructions. It is not required, however, that the question be submitted to the jury where there is no evidence that the witness is an accomplice. Shields v. State, 32 Okla. Cr. 344, 240 P. 661; Perdue v. State, 40 Okla. Cr. 9, 266 P. 514.

There is no evidence in the record on the -part of the state that Dubois had any connection or knowledge of the eomtemplated robbery of the bank. It is not the theory of any of the defendants, nor does their testimony support the contention, that Dubois was an accomplice. Defendants were therefore not entitled to an instruction submitting this matter to the jury.

¡Some other contentions are presented by the briefs, all of which have had attention, but none of which disclose any material error.

The case is affirmed.

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


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    ED TURNAGE v. STATE.
    No. A-6156.
    Opinion Filed May 26, 1928.
    (267 Pac. 1038.)

      Clyde H. Wyand,.for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried by a jury and found guilty of transporting intoxicating liquor, and his punishment fixed at a fine of $100 and 60 days’ imprisonment in the county jail. Motion for new trial was filed and overruled, exceptions saved, and an appeal to this court perfected.

Defendant demurred to the -information on the ground that the information shows that the offense charged against the defendant is alleged to have occurred on March 27, 1925; the information was filed on the same date, and fails to allege that the offense occurred anterior to the filing of the information — which demurrer was overruled and defendant duly excepted.

John W. Bayless, a witness for the state, in substance testified as follows:

That he was an undersheriff and knew the defendant ; that he had started to dinner on March 27, 1925, and saw defendant drive his car by the Quick Lunch and get out; saw him put a bottle in his pocket, and noticed he kept holding it; he came up the street to his car, which was parked west of the Woodward Hospital; Mr. Turnage, Mr. Richards, and Mr. Turnage’s little boy were in the car. “I asked Turnage to give me the whisky, and he said he did not have any, and stepped on the gas. I lit on the running board, and was holding on with my right hand, and ordered him to stop. He tried to push me off the running board. I pulled my gun and he found the brakes; stepped off about three feet from the car and said, ‘Now, give me the whisky.’ While I was on the car, Mr. Richards tried to get him not to resist an officer. He reached back in the car and got a bottle and threw it on the ground, and said, ‘There it is.’ Exhibit 1 is remnants, of the bottle Ed Turn-age had in his possession on the 27th day of March, 1925. I investigated, and the contents of the bottle was whisky.’

On cross-examination the undersheriff testified that he did not have a warrant for the arrest of the defendant, nor to search his automobile. The defendant then moved to strike from the record, and the consideration of the jury, all of the testimony of the witness Bayless concerning the bottle, and any testimony in connection with that, which motion was overruled, and defendant duly excepted. Further on witness stated:

That he had seen a package, but that ne nad. not seen the bottle. “The package looked like it contained a bottle. The bottle was wrapped in newspapers, and I could not have sworn what was in it; that is why I wanted to see it. I could not see the bottle through the paper.”

Witness Lesley F. Carrithers testified that he came to town with the defendant that morning, and on the road they picked up a bottle that had a little watery substance in it; it looked like muddy water; that he spoke to defendant about getting the cork out of the bottle, which was pushed down in the bottle a bit; any one would have been foolish to have tasted or tried to drink it, but I think the defendant put the bottle ■ in his car. The defendant admitted picking up the bottle out there, as testified to by witness Carrithers, and also testified that he did not know what was in the bottle, and did not? try to find out.

That were other witnesses in this case, but we do not deem it necessary to consider their testimony.

The defendant urges that the court erred in overruling his motion or demurrer to quash the information. Section 2559, Compiled Statutes 1921, is as follows:

“The precise time at which the offense was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.”

Wharton, Criminal Procedure, vol. 1, p. 216, § 163, lays down a rule and says:

“To assign the day as that of the finding of a bill (unless there be a specific averment that the offense was prior to the finding) is bad.”

Where the offense is alleged to have been committed on the same day the information is sworn to and filed in court, the information should contain the allegation that the offense committed was committed anterior to the time of the filing o'f the information. The court erred in overruling the demurrer and motion of the defendant.

The defendant further urges that the court committed error in refusing to permit the defendant to inquire of the jurors on their voir dire as to their membership in the Ku Klux Klan, and insists that the refusal of the court to permit the jury to' be interrogated as to whether they were members, or had been members, of the Klan, was an error, and deprived the defendant of a fair and impartial trial under the law. Under the law, a defendant in cases of this character would be entitled to three peremptory challenges, and in order that he may properly exercise his challenges it was the duty of the court to permit him to ask the jurors whether they belonged to the Ku Klux Klan, for the purpose of laying a foundation for the peremptory challenge of the jurors.

In Menefee v. State, 30 Okla. Cr. 400, 236 P. 439, we hold that:

“Refusal to permit jurors to answer the defendant’s question whether they belonged to the Ku Klux Klan, for the purpose of laying a foundation for peremptory challenge of jurors, held reversible error.”

This court has repeatedly held that the trial court, in refusing to permit the defendant to question the jurors as to their membership in the Ku Klux Klan, was error. Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Raymer et al. v. State, 32 Okla. Cr. 385, 241 P. 499; Cooley v. State, 34 Okla. Cr. 281, 246 P. 650.

It is further urged by the defendant that the court erred in overruling his demurrer to the evidence, for the reason that the evidence of the witness, the undersheriff, John W. Bayless, was unlawfully obtained. This demurrer of the defendant should have been sustained. A careful reading of the testimony of the witness Bayless shows that he had no authority whatever to stop the defendant, who was pursuing his quiet and peaceful way along the streets of Woodward, and demand of him to know what was in the package in the car; nor did he have any right, when the defendant started away, to get on the running board of defendant’s car, and demand him to stop it, and to go to the extreme, he testified he did, of drawing his gun on the defendant.

The conduct of witness Bayless in this case, who admits he had no warrant for the arrest of the defendant, or to search his car, was without authority of law, was unlawful, and any evidence procured by him was unlawfully procured, and was inadmissible against the defendant.

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

For the reasons stated herein, the case to reversed and remanded.

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


author: DOYLE, P. J.

text:
    JERRY GRIMM et al. v. STATE.
    No. A-6449.
    Opinion Filed May 26, 1928.
    (267 Pac. 1043.)
    L. C. McLean, for plaintiffs in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error Jerry Grimm and Jean Grimm were jointly tried and convicted on an information charging that in Garfield county, on or about the 23rd day of January, 1926, they did then and there unlawfully possess a compound mixture, mash, wort, or wash fit for distillation and for the manufacture of distilled spirits and alcoholic liquor, with the unlawful intent to use the same for the purpose of manufacturing and distilling spirits and alcoholic liquors, and in accordance with the verdict of the jury they were each sentenced to pay a fine of $500 and to imprisonment for a period of 6 months in the county jail.

From the judgment rendered on the verdict on October 9, 1926, an appeal was perfected by filing in this court, on November 30, 1926, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground that plaintiffs, in error have become fugitives from justice. Attached to said motion is the affidavit of Dan Mitchell, sheriff of Garfield county, to the effect that said plaintiffs in error were in his custody and were being held in the Garfield county jail pending a trial on felony charges pending in the district court of said county, and that on the 17th day of February, 1928, they did break and escape from the Garfield county jail and are now fugitives from justice; that their whereabouts are unknown ; and that the officers of Garfield county have been unable to locate either of said plaintiffs in error since their escape from Garfield county jail.

Said motion to dismiss was filed May 7, 1928, and notice duly served on L. G. McLean, counsel of record, and no response has been filed to said motion.

It has been repeatedly held by this court that, where a convicted defendant perfects an appeal, this court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and where a defendant makes -his escape from the custody of the law and becomes a fugitive from justice, pending the determination of his appeal, this court on motion will dismiss his appeal. Belcher v. State, 9 Okla. Cr. 50, 130 P. 515; Williams v. State, 11 Okla. Cr. 35, 141 P. 453; Glover v. State, 12 Okla. Cr. 287, 155 P. 199; Young v. State, 16 Okla. Cr. 116, 180 P. 872; McNutt v. State, 28 Okla. Cr. 176, 229 P. 845.

Upon the uncontroverted facts, the plaintiffs in error have waived their right to have their appeal in this court considered and determined. The appeal herein is therefore dismissed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JERRY GRIMM et al. v. STATE.
    No. A-6450.
    Opinion Filed May 31, 1928.
    (267 Pac. 1044.)
    L. C. McLean, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error Jerry Grimm and Jean Grimm were jointly tried and convicted on an information charging that they did have in their possession a certain still worm and still which might be used for the manufacture of alcoholic liquors, and in accordance with the verdict of the jury they were each sentenced to pay a fine of $500 and to imprisonment for a period of 6 months in the county jail. The judgment was rendered October 9, 1926. An appeal therefrom was filed in this court November 30, 1926.

The Attorney General has filed a motion to dismiss the appeal on the ground that plaintiffs in error have become fugitives from justice.

No response to said motion has been filed. Upon the uncontroverted facts, plaintiffs in error have waived their right to have their appeal in this case considered and determined. The appeal herein is therefore dismissed.


text:
    CLAUD FAULKNER et al. v. STATE.
    No. A-6439.
    Opinion Filed May 31, 1928.
    (267 Pac. 1037.)
    W. C. Hall, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information charges that in Hughes county, March 4th, 1926, Claud Faulkner and John Pierce did have possession of three gallons of ginger, twenty four two-ounce bottles of Jamaica ginger, three quarts of whisky, and one gallon of alcohol, with the unlawful intent of them the said defendants to sell the same. On the trial the jury found them guilty, and assessed the punishment of Claud Faulkner at a fine of $500 and imprisonment in the county jail for 60 days, and the punishment of John Pierce at a fine of $50 and imprisonment in the county jail for 30 days.

The case is here on appeal from the judgments rendered in pursuance of the verdict.

The evidence shows that on the date charged in the information Joe Cotton, chief of police at Holdenville, and another officer, in executing a search warrant, searched the place of business of the defendant Faulkner, known as the Sweet Shop, and wherein the defendant Pierce was employed as a salesman, and found one-half gallon- of corn whisky, two or three gallons of ginger, one gallon of alcohol and several small bottles of Jamaica ginger.

No brief has been filed and no appearance made in behalf of plaintiffs in error in this court. An examination of the record convinces us that the defendants were accorded a fair trial; that the evidence is sufficient to sustain the verdict, and judgments thereon rendered.

Finding no reversible error in the record, the judgments appealed from are affirmed.

EDWARDS and DAVENPORT, JJ.', concur.


text:
    Ex parte J. H. WIGGINS.
    No. A-7035.
    Opinion Filed May 31, 1928.
    (267 Pac. 868.)

      O. T. Shinn and John J. Carney, for petitioner.
    Edwin Dabney, Atty. Gen., and L. D. Mitchell, Asst. Co. Atty., for respondent.
   PER CURIAM.

This is an original application for a writ of habeas corpus. The petitioner, in substance,^ alleges that he is illegally restrained of his liberty by Ben B. Dancy, sheriif of Oklahoma county, setting out that a charge of felony, the crime of incest, had been filed against petitioner before A. W. McWilliams, a justice of the peace of Oklahoma county, and that thereafter the proceeding was transmitted to the district court of Oklahoma county without petitioner having had or waived a preliminary; that petitioner had duly challenged the jurisdiction of the district court by motion to quash, which had been overruled, and thereafter petitioner was tried in the district court, and had been sentenced to serve a term of five years in the state penitentiary; that the district court was without jurisdiction in said cause, and restraint of petitioner illegal. A rule to show cause was issued in this court. The sheriff has filed his return and a hearing had, at which there was introduced in evidence a transcript of the proceedings and the files and records in said cause.

The record discloses that petitioner was duly charged before a justice of the peace; that he appeared by his counsel, John J. Carney, a member of the bar, waived a preliminary; that a certified copy of the transcript was duly filed in the district court. These records import verity, and from them it is clearly made to appear that the district court had jurisdiction of the case, and that the restraint of petitioner is legal.

The application for writ of habeas corpus is denied, and the ease dismissed.


author: DAVENPOET, J.

text:
    J. C. JONES v. STATE.
    No. A-6427.
    Opinion Filed May 31, 1928.
    (267 Pac. 867.)
    E. E. Eittenhouse, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of having possession of intoxicating liquor, and was sentenced to pay a fine of $50 and imprisonment in the county jail for a period of 30 days. From the judgment and sentence defendant appealed.

The defendant has filed no brief supporting his assignment of errors, although the time for filing the brief has expired. Where no briefs are filed, the court will examine the record, and, where no prejudicial errors are apparent, the judgment of the trial court Will be affirmed.

The state’s testimony was positive in character. The defendant in his own behalf denied any knowledge of the Whisky. The jury seemed to be satisfied with the testimony, notwithstanding the defendant’s testimony to the contrary. It is the exclusive province of the jury to pass on the credibility of the witness and the weight of the testimony, and when, as in this case, there is substantial evidence to support their finding, even though the testimony is conflicting, this court will not interfere.

From a careful examination of the record, it appears that the defendant was accorded a fair trial. The judgment of the trial court is affirmed.

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


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    RAY FINCHUM v. STATE.
    No. A-6082.
    Opinion Filed May 31, 1928.
    (267 Pac. 688.)
    Sherman M. Smith and Mauntel & Spellman, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

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

The principal witness for the state was one Ora Warren, who, as an accomplice, testified that he and defendant in the nighttime took two steers from the pasture of James Hastings to defendant’s ranch and butchered them and early the next morning took the eight quarters to Moore-land and sold them to Miller Bros., meat dealers there. This witness was charged with defendant, .put under bond, and made arrangements with the prosecuting authorities to become a witness for the state. The sole ground relied upon for a reversal is that there is no sufficient corroboration of the testimony of Warren, who, according to his testimony, is an accomplice. There is considerable evidence in the record. Two hides found in the hide house at Woodward on August 12 purport to be the hides from the two stolen steers. The description of the hides is minutely testified to and there appears no question but what the hides mentioned in evidence were from the steers belonging to Hastings. These hides were traced to the town of Mooreland and the evidence tends to show that one Miller sold them to a local merchant in Woodward, in whose possession they were found. The name of Miller was indorsed on the information as a state’s witness, but was not called. There is a hiatus in the proof. The hides are not traced to defendant. Aside from the testimony of the accomplice, Warren, it is not shown that defendant sold them to Miller or delivered them to any one else by whom they were delivered to Miller, or that he ever had possession of them. We have searched the recrod with care and are not able to find that there is any testimony corroborating the accomplice tending to connect defendant with the commission of the offense charged as required by section 2701, Comp. St. 1921. Under this section of the statute and by many decisions of this court there must be corroboration of the testimony of an accomplice in the particular stated. It is not necessary that the corroborating evidence cover every material point in the accomplice’s testimony, but it must be of some substantial fact or facts tending to connect defendant with the crime. It need not be direct, but may be circumstantial. When there is such corroboration its sufficiency is for the jury. Where there is not such corroboration it is the bounden duty of this court to prevent a violation of section 2701, by a reversal of the judgment.

The case is reversed and remanded.

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


text:
    JESS BOWMAN v. STATE.
    No. A-6423.
    Opinion Filed May 31, 1928.
    (267 Pac. 686.)
    A. M. Stewart, W. M. Williams, and Ross Cox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Upon information charging that in Harmon county, May 25, 1926, Jess Bowman did then and there unlawfully sell one-half gallon of whisky to one A. E. Bridgewater for and at a price of $5, he was tried, convicted, and, in accordance with the verdict of the jury, Was sentenced to pay a fine of $50 and to confinement in the county jail for 40 days.

The errors assigned question the sufficiency of the evidence to support the verdict, but no brief has been filed.. The state’s case was made by direct and positive evidence. As a witness in his own behalf the defendant denied making the sale. Obviously the jury were satisfied of his guilt, notwithstanding his testimony to the contrary.

It is the exclusive province of the jury to pass on the credibility of witnesses and the weight of the testimony, and when, as in this case, there is substantial evidence to support their finding, this court will not interfere.

The judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WALTER GARRETT v. STATE.
    No. A-6399.
    Opinion Filed May 31, 1928.
    (267 Pac. 683.)

      Arnold & Woodruff, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information charges that in Adair county, on or about June 15, 1926, Walter Garrett did have in his possession about one-half gallon of whisky, with the unlawful intent to sell the same. On the trial, the jury returned a verdict finding him guilty and assessing his punishment at imprisonment in the county jail for 30 days and a fine of $50. To reverse the judgment rendered on the verdict, he appeals, and assigns as error the admission of evidence obtained by an unlawful search of his home, admission of incompetent and prejudicial evidence, and refusing to direct a verdict of acquittal.

The evidence shows that J. W. Ferguson, city marshal of Stilwell, accompanied by Bill Rat, and armed with a search warrant, visited the defendant’s residence and searched the house, finding about one-half gallon of whisky.

The record shows that the testimony was admitted over the defendant’s objections that the search warrant was invalid, having been issued on an affidavit made on information and belief.

Several witnesses were permitted to testify as to the general reputation of the defendant’s home as being a place where intoxicating liquors were sold without laying a proper predicate showing that such residence was a place of public resort.

By numerous decisions of this court, it is held that an affidavit for a search warrant, made upon information, belief, or suspicion, is invalid, and a search made upon a search warrant based upon it is illegal. Sprinkle v. State, 36 Okla. Cr. 36, 251 P. 614; Hancock v. State, 35 Okla. Cr. 96, 248 P. 1115; Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106; Hall v. State, 34 Okla. Cr. 344, 246 P. 642; Magin v. State, 25 Okla. Cr. 361, 220 P. 666.

It is well settled that, before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession of intoxicating liquor, it must be shown that the place itself was a place of public resort. Moore v. State, 34 Okla. Cr. 411, 246 P. 1112; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113; Beatty v. State, 34 Okla. Cr. 418, 246 P. 1103.

For the reason stated, the judgment of the lower court is reversed, and the cause remanded, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


text:
    EARL MIDDLETON v. STATE.
    No. A-6138.
    Opinion Filed May 31, 1928.
    (267 Pac. 682.)
    Don Cameron, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Okfuskee county, April 29, 1925, Jim Mitchell and Earl Middleton did then and there unlawfully have in their possession a still and worm, which, after being set up, could be used for the production of distilled spirits. A severance was granted, and on the trial of appellant the jury returned a verdict finding him guilty and fixing his punishment at a fine of $500 and imprisonment in the county jail for six months.

To reverse the judgment, he appeals and assigns as error the insufficiency of the information and the insufficiency of the evidence to support the verdict.

The assignment that the information fails to state a public offense is not well taken. It follows that the defendant’s demurrer thereto, was properly overruled.

The state’s testimony, which is undisputed, the defendant not having testified as a witness, is substantially as follows :

Frank Gaghagen, deputy sheriff of Okfuskee county, testified that, accompanied by Billy Boots and George Luttes, he left Henryetta and proceeded 5 or 6 miles south, and there in the brush found a still in operation, and it was running whisky, and near by a jug containing whisky; that the place was about half a mile from Mr. Mitchell’s house and about 30 or 40 yards from another house, and you could see the still in operation from this house; that he did not have a search warrant or any warrant of arrest for the defendants.

C. W. Boots, deputy sheriff of Okfuskee county, testified that they found a still running, and Jim Mitchell and Earl Middleton and a boy were there at the still; that there was a bucket under the drip of the still about half full of whisky; he identified the still found and the same was offered in evidence; that the still Was found in Okfuskee county; that the defendant, Middleton, said the still belonged to him; that be had put all his money in the still and mash, and that left him flat broke.

At the close of the evidence for the state, the defendant moved the court for a directed verdict of acquittal, because all the evidence was illegally obtained, which motion was overruled.

We are unable to agree with counsel for appellant that the evidence is insufficient to support the verdict. Upon the undisputed facts and the admission of the defendant, the evidence is without a doubt sufficient to sustain the verdict and judgment.

It is also urged that the evidence for the state was unlawfully obtained. In the companion case of Mitchell v. State, 38 Okla. Cr. 167, 259 P. 661, it is said:

“No search warrant was necessary for the investigation that led to the finding of the still. It was in a brushy woods pasture, an unfrequented place, one-quarter to one-half of a mile from the residence.”

See Merck v. State, 35 Okla. Cr. 160, 249 P. 163; Penney v. State, 35 Okla. Cr. 151, 249 P. 167.

Upon the whole case it appears that the defendant was accorded a fair trial.

The judgment of the lower court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    MART KILLION et al. v. STATE.
    No. A-6536.
    Opinion Filed May 31, 1928.
    (267 Pac. 681.)
    Wieck & Armstrong, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, Mart Killion and Claud Henderson, hereinafter called the defendants, were convicted of having in their possession narcotics, to wit, about 90 cubes, or about 200 grains, of morphine sulphate, and their punishment fixed at confinement in the state penitentiary for a period of 7 years. From the judgment and sentence so rendered, the defendants appeal.

No briefs have been filed by the defendants in support of their assignment of errors, although the time for filing the same has long since passed. Satisfactory showing being made as to the death of the defendant Mart Killion, the case as to the said Killion is abated.

Where no briefs are filed, the court will examine the record proper, and, if no prejudicial error is apparent, the judgment of the trial court will be affirmed.

After a careful examination of the record, the court finds, as to the defendant Claud Henderson, that the information was sufficient to charge an offense; that the testimony is sufficient to support the verdict; that the instructions to the court correctly advise the jury as to the law; and that otherwise the defendant was accorded a fair trial.

The judgment and sentence as to Claud Henderson is affirmed.

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


text:
    L. KINTER v. STATE.
    No. A-6403.
    Opinion Filed May 31, 1928.
    (267 Pac. 680.)
    W. L. Chapman, for plaintiff in error.
    Edwin Dabney,'Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered upon the verdict of a jury finding the defendant, L. Kinter, guilty of assault with a dangerous weapon as charged in the information, and fixing his punishment at confinement in the state penitentiary for the term of one year. The judgment and sentence was rendered on April 10, 1926. An appeal by case-made was filed in this court October 7, 1926, but no brief has been filed.

The information, in substance, charged that in Pottawatomie county, on the 23'd day .of December, 1925, L. Kin-ter did feloniously, with intent to do bodily harm to one Milton Eaves, and without excusable or justifiable cause commit an assault upon the person of Milton Eaves with a dangerous weapon, to wit, a pistol.

Without the aid of oral argument or brief, we have carefully examined the record, and are satisfied that he has had a fair trial. Finding the evidence sufficient and no prejudicial error of law occurring at the trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WILL PEEVEE v. STATE.
    No. A-6424.

    Opinion Filed May 31, 1928.
    (267 Pac. 680.)
    A. M. Stewart, W. M. Williams, and Ross Cox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Upon an information charging that in Harmon county, June 19, 1926, Will Peevee did then and there unlawfully keep and have in his possession a still for the purpose of manufacturing intoxicating liquors, he was tried and found guilty, and his punishment assessed at a fine of $50, and imprisonment for 80 days in the county jail.

From the judgment rendered on the verdict on July 29, 1926, an appeal was perfected by filing in'this court on October 26, 1926, a petition in error with case-made, but no brief has been filed and no appearance made in behalf of plaintiff in error in this court.

The evidence for the state shows that under authority of a search warrant officers visited the premises occupied by the defendant, where they found and seized a copper still, concealed about 22 steps from the corner of the house occupied by the defendant.

As a witness in his own behalf,' the defendant denied any knowledge of the still, and denied ever having manufactured or sold intoxicating liquor, and denied any knowledge of the fact that the still was buried near his house.

It is obvious that the case was one for the consideration of the jury. The trial was in all respects fair, and we are unable, after a careful examination, to find anything in the record sufficient to create a doubt as to the correctness of the result or warrant us in interfering with the verdict.

The judgment of the lower court is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    RAY THOMAS et al. v. STATE.
    No. A-6193.
    Opinion Filed June 2, 1928.
    (267 Pac. 1040.)

      Nowlin, S'pielman & Thomas, for plaintiffs in error.
    Edwin Dabney, Atty Gen., Smith C. Matson, Asst. Atty. Gen., and W. P. Morrison, Co. Atty., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Canadian county on a charge of subornation of perjury, and were each sentenced to serve a term of five years in the state penitentiary.

The defendants, with their father, W. F. Thomas, and two brothers, Sam Thomas and Ernest Thomas, were jointly charged. A serverance was granted to some of the defendants. Ernest Thomas was tried first and was convicted, and appealed to this court, and the case was reversed. Thomas v. State, 36 Okla. Cr. 209, 253 P. 514. The case against W. F. Thomas was dismissed. Sam Thomas was acquitted. The defendants here were tried last.

The case arose in this manner. In December, 1924, certain officers made a search of the premises of W. F. Thomas where he and his four sons just named resided. They found a five-gallon jug of whisky buried on the premises, and a charge of unlawful possession was filed in the county court against all the Thomases named, except Sam Thomas. That case was tried in February, 1925; the .state presented its evidence; the defendant then produced one J. 0. Dorsey, who testified, in substance, that about two weeks before this jug of whisky was found he and a boy named Smith found a five-gallon jug of whisky about a half mile from the Thomas farm, and moved it about three-quarters of a mile, and buried it about one-quarter of a mile northeast of the Thomas house, he supposed where the officers found it. This charge of subornation of perjury was then filed against all of the Thomases alleging they had procured Dorsey to testify falsely in the county court liquor case as just stated. The two defendants here were tried together, and from their conviction prosecute this appeal.

It is the theory of the state that the Thomases conspired together to frame a defense of the liquor charge by procuring some one to testify falsely to the possession of the five-gallon jug of whisky found by the officers, or to raise a reasonable doubt of the possession of it by the Thomases, and thus bring about an acquittal. A brief review of the evidence of the state is that Wesley Wright, Ted Huntley, and Elmer Hill were farm hands living on the Thomas place at the time the whisky was found. They all testified for the state in this subornation case that the Thomases offered Ted Huntley $25 and to pay his fine if he would claim the whisky found by the officers. Huntley refused, and the proposition was then made to Elmer Hill. After several conversations, Hill agreed to claim the whisky, and the Thomases were to pay him $100 and his fine. After, making this agreement two of the Thomas boys took Hill on two occasions to the office of their attorneys at Oklahoma City, and the plans were laid before these attorneys, and discussed by them with Hill. (These attorneys are not the counsel who appear for defendants in this appeal.) Pursuant to the arrangement with Hill a few hours before the liquor case was called for trial, the balance of the money to be paid Hill was paid by the Thomases, but Hill either got “cold feet” or became intoxicated, and failed to appear to testify, as he had agreed. Then Sam Thomas, who was not charged in the liquor case, and Dorsey went out to hunt Hill. Not being able to find him, and the trial being in progress, Dorsey agreed with Sam Thomas to take Hill’s place and testify as Hill had agreed. He was then called as a witness, and testified in substance as hereinbefore stated.

At the trial of this case, Dorsey testified for the state in substance and effect that all his testimony in the county court liquor case was false. There was also some circumstantial evidence of its falsity, as well as the testimony of Hill, Wright, and Huntley of the attempt to procure them to give the testimony in substance as • testified to by Dorsey. The defendants did not take the stand nor offer any testimony, nor make any defense, except technical objections.

Numerous assignments of error are argued, all of which have had the attention of the court, and some oi which will be separately set out in disposing of the questions presented.

It is first argued that the information is insufficient, in that it does not appear by allegation in either general ■terms or specific terms that the county court had jurisdiction of the case in which the alleged false testimony was given.

In is not necessary to set out the lengthy allegations of the information. It alleges that defendants procured Dorsey to commit perjury in a case on trial in the county court of Canadian county wherein they were charged with having possession of intoxicating liquor, and that Dorsey, after being duly sworn as a witness in said court, falsely and cqrruptly testified “in substance” that he transported^ the jug of whisky 'which the Said Thomases were charged with the possession of, and had buried the same at the point where it was found by the officers on the premises of the said Thomases in Canadian county, then alleging that the evidence was material, was false, and known by the Thomases to be false, and that Dorsey so testified falsely.

The rule of strict construction in criminal law and criminal cases is not in force in Oklahoma. Price v. State, 9 Okla. Cr. 359, 131 P. 1102; State v. Underwood, 17 Okla. Cr. 443, 190 P. 281.

An indictment or information for subornation of perjury is sufficiently pleaded where the subject of the controversy in which the offense was committed is alleged, and in what court or before whom the oath alleged to be false was taken. Section 2570, Comp. St. 1921.

It is said that the averments necessary to charge a criminal offense are of two kinds, one setting out the foundation for the conviction of the offense and one pleading the offense itself. The former is generally called the inducement, and may be pleaded in general terms. It need not be made by direct charge or in detail. A part of this inducement in a perjury case is the fací of an issue before some tribunal having jurisdiction. These things are not the charge against the accused, but the foundation for the charge. The charge is the false testimony. 3 Bishop’s New Criminal Procedure, 2d Ed. §§ 904, 905; Williams v. State, 14 Okla. Cr. 100, 167 P. 763. There is no material difference in the application of this rule where the charge is subornation of perjury. The recitals in the matters of inducement in the information here sufficiently show that the county court of Canadian county had jurisdiction of the proceedings pending in which the alleged false testimony was given, and it sufficiently conforms to the statutory requirement.

It is next argued that the evidence is insufficient to show that Dorsey testified as alleged. The information charges that Dorsey testified he conveyed the jug of whisky which the Thomases were charged with having the unlawful possession of, and buried it at the point where found by the officers on the premises of the Thomases. Dorsey was somewhat cautious in his testimony. When asked if he had seen the jug exhibited, he answered “I think I have seen that jug.” Asked if it was the jug he buried, he answered, “I presume it is.” Asked to positively identify it, he stated he could not positively do so, there were too many jugs alike. He testified, however, that he found the jug about a half mile north of the Thomas place. He weakened that somewhat by saying he could not tell just how far it was, nor the exact direction, but that he and Smith found it, carried it three-, quarters of a mile, and buried it a quarter of a mile northeast of the house; that he had heard the testimony of the officers, and supposed the officers found it where he buried it; that he was in the courtroom, heard the officers testify where they found the whisky; that lie went to the place where he buried it and it was gone; and that, after the Thomases were arrested, he told Sam Thomas he buried some there. Despite his use of th« words “think” and “presume,” the plain import ana meaning of this testimony? is that Dorsey found the whisky, carried it about three-quarters of a mile, and buried it about one-quarter of a mile northeast of the Thomas house; that he heard the officers testify where ■jthey found it, and they found it where he buried it. All the testimony of this witness in the liquor case was introduced in evidence in support of this charge of subornation, and it seems clear to us that “in substance” the testimony of the witness is as alleged;

On a trial for perjury, it is not necessary that the proof show defendant made literally the statements alleged, but to sustain the charge it is necessary to prove only that he testified in the substance of the language alleged in the prior judicial investigation. McLaren v. State, 4 Ga. App. 643, 62 S. E. 138; Taylor v. State, 48 Ala. 157; People v. Burroughs (N. Y.) 1 Parker Cr. R. 211; Com. v. Terry, 114 Mass. 263; Wheeler v. People, 63 Colo. 209, 165 P. 257.

In the latter case the court held:

“In a prosecution for perjury, there was no fatal variance between an information, charging that defendant testified, ‘in substance and effect,’ that he did not know the defendants then on trial were among those who went with him in his wagon to the point near where an assault with intent to murder was committed, and the transcript of defendant’s testimony, from which it appeared that he attempted to convey the impression that such defendants might or might not have been with him at that time, but that he was unable to state positively either way.”

Counsel for defendant next contend that perjury cannot be established by the uncorroborated testimony of the perjurer, and in a criminal case, where subornation of perjury is charged, the proof of the perjury must conform to the requirements of the quantitative rule as announced by this court in perjury cases. Metcalf v. State, 8 Okla. Cr. 605, 129 P. 675, 44 L. R. A. (N. S.) 513; Goltry v. State, 24 Okla. Cr. 127, 216 P. 485; Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489; Wright v. State, 30 Okla. Cr. 425, 236 P. 633.

Counsel concede that, where the charge is subornation of perjury, the subornation may be established by the ordinary rules, of evidence; that is, by the testimony of a witness without corroboration, but that the perjury upon which the subornation is predicated cannot be established by a single witness, but insist there is no evidence except the testimony of Dorsey that he did not find and bury the jug as he testified in the liquor case. The following cases are cited in support of his contention: Bell v. State, 5 Ga. App. 701, 63 S. E. 860; State v. Renswick, 85 Minn. 19, 88 N. W. 22; Com. v. Douglass, 5 Metc. (46 Mass.) 241.

This court has not had occasion to pass upon the identical question here presented. The case of Hammer v. U. S. (C. C. A.) 6 F. (2d.) 786, in passing upon this question, holds that the requirement of corroboration in perjury cases has no application in cases of subornation, and cites numerous authorities in support of the rule announced. This case is enlightening, but we think it unnecessary to pass on the question here, for the reason that, if it be conceded that the fact of perjury in a charge off subornation ¡of 'perjury mus^ ¡be proven with the strictness required where the charge is perjury, there is ample corroboration of the evidence of Dorsey to satisfy this requirement.

The contention is next made that the court admitted incompetent evidence prejudicial to defendant. This assignment is directed to testimony of Huntley, Wright, and Hill that the Thomases attempted to procure Huntley and Hill to claim the whisky found; that, since the information charges that defendants did procure another person, to wit, J. O. Dorsey, to commit perjury, and ¿here is no charge of any conspiracy to procure another person other than Dorsey, evidence of the attempt to procure some person other than Dorsey is not competent as being evidence of an independent offense. The state takes the view: That the conspiracy was to procure some person to testify that he had placed the jug on the Thomas premises where found by the officers, and the attempt to procure Huntley and Hill and .the procuring of Dorsey are all pursuant to the common design and purpose. That it was immaterial, so far as the conspiracy was concerned, who was procured to swear falsely to the possession of whisky; and all the evidence made to procure some person is competent, and the acts and declarations of any of the persons in pursuance of the common design are the act and declaration of all. Ex parte Hayes, 6 Okla. Cr. 321, 118 P. 609. That the the offer to Huntley, the agreement with Hill, and the final agreement and procuring of Dorsey is a- part of the common design, and all the evidence along this line admissible. It is not necessary that the conspiracy be charged in the information. Irvin v. State, 11 Okla. Cr. 301, 146 P. 453; Thomas v. State, 34 Okla. Cr. 288, 246 P. 658; Gandy v. State, 34 Okla. Cr. 350, 246 P. 887; Mathews v. State, 19 Okla. Cr. 153, 198 P. 112.

Conspiracy to commit a crime ordinarily Is not proven by direct and positive evidence, but generally must be proven by circumstances, and a wide latitude in the examination of witnesses to show a conspiracy to commit a crime is permissible. Crawford v. State, 35 Okla. Cr. 135, 248 P. 880.

Some evidence of a conspiracy is essential, and it is frequently said that slight evidence of collusion is all the law requires to admit evidence of the acts and declarations of a conspirator against his coconspirators. When there is such evidence, though slight, then both the acts and declarations of a, coconspirator not upon trial are admissible against a defendant.

The testimony of Dorsey is of an agreement by him with Sam Thomas, who was not on trial, and not charged with the possession of the whisky, to testify as to Dorsey's possession of the jug of whisky involved. The fact that, after making this agreement with Sam Thomas, Dorsey was called by defendants, and testified as he had agreed with Sam, is evidence that Sam Thomas was acting for defendants, and the fact that other of the Thomases had sought to procure Huntley and Hill to testify to the same effect was admissible as tending to prove ¡a common design and purpose, and tended to explain and throw light upon the procuring of Dorsey to give the testimony he did. The evidence supports the theory that there was a conspiracy to procure some person to commit perjury, and that after different efforts, Dorsey was procured, and did testify as charged. Under this assignment, complaint is also made that the court admitted evidence that a day or so before the finding of the five-gallon jug of whisky on the Thomas place, they had other five-gallon jugs of whisky on said premises. It is insisted that this evidence is of an independent offense, and prejudicial. This evidence was competent as tending to establish the falsity of Dorsey’s testimony, and as tending to show the knowledge of defendants of the falsity of his testimony. Underhill, Criminal Evidence (3 Ed.) § 683; Hunter v. State, 3 Okla. Cr. 533, 107 P. 444.

Defendants also argue that, since Sam Thomas was tried and acquitted on a separate trial upon the same charge as these defendants, the law should operate to acquit-them. This contention directly conflicts with the provisions of sections 2574 and 2575, Comp. St. 1921. Under these sections all those concerned in the subornation were principals, without regard to whether they were what might be termed accessories or principals, and. might be prosecuted, tried, and punished, although the principal be neither prosecuted nor tried, or, if tried, acquitted.

Some complaint is also made of the court’s instructions. We have reviewed these instructions carefully, and, while some of the criticism made may be more or less just, yet, taken altogether, they sufficiently state the law applicable and there is no such prejudicial error in any of them as requires a reversal.

The case is affirmed.

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


author: EDWARDS’, J.

text:
    H. E. SNIDER v. STATE.
    No. A-6198.
    Opinion Filed June 2, 1928.
    (267 Pac. 687.)
    John L. Ward and L. O. Todd, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS’, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of rape in the first degree and was sentenced to serve a term of 15 years in the state penitentiary.

The defendant is charged with having committed rape by force upon the person of one Opal Bean, k female above the age of 18 years. Several assignments of error are argued. None of them have any particular merit except the assignment that the evidence is insufficient to sustain the verdict and judgment. An examination of the record discloses that at the time charged defendant was the driver of a jitney or service car in the city of Tulsa, of the age of about 25 years, and the prosecutrix was between the age of 18 and 19. At the time charged the prosecutrix was & passenger' in the service car of defendant and when she reached the end of his run went with him for a drive. -They drove some distance out of the city on a side road and there defendant had sexual intercourse with the prosecutrix. The act of intercourse is admitted by defendant, who testified that the same was accomplished without force and with the consent of the prosecutrix. In this state to constitute rape by force it is not essential that resistance be to the utmost, but need be only such as to make nonconsent and actual resistance reasonably manifest. Bulls v. State, 33 Okla. Cr. 64, 241 P. 605.

The state’s case rests on the testimony of the prosecu-trix and we believe that no impartial person after an examination of her testimony can conclude that any act of intercourse was had with her by force. In a prosecution for rape by force, where the testimony of prosecutrix is uncorroborated and her testimony is inconsistent with the claim of rape by force, but to the contrary discloses an act of intercourse by consent, the judgment of conviction should be reversed.

We think no good purpose would be served by setting out in detail the facts as testified to by prosecu-trix. We are clearly of the opinion that they are wholly insufficient to sustain the judgment.

The case is reversed and remanded.

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


text:
    TOM MURRY v. STATE.
    No. A-6205.
    Opinion Filed June 9, 1928.
    (267 Pac. 1057.)

      W. W. Holloway, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter Called the defendant, was convicted in the county court of Okmulgee county upon a charge of transporting intoxicating liquors jointly with Homer Hart. A separate trial was had, and defendant was convicted and sentenced to imprisonment in the county jail for a term of 6 months and to a pay a fine of $500. Motion for new trial was filed, considered, and overruled, and exceptions saved. From the judgment and sentence the defendant has appealed to this court.

The state, to sustain the charge, called the following witnesses who testified in substance as follows: C. W. Boots testified that he was a deputy sheriff on the 27th day of April, 1925; that between sundown and dark, in company with George Loots, he went out south of Henryetta to where the roads cross, and stopped about 75 or 100 yards from the south road going out; that the defendant, in company with Homer Hart, came down over the hill and before they came to where the witnesses were they turned east; the witness and the party with him took after them and traveled about a quarter of a mile or better and stopped them, and I asked Homer Hart what he had in the jar that was on the seat by him, and he said, “Whisky.” We looked them over, and they had better than seven gallons. Tom Murry, Homer Hart, and Brannon were in the car; they were going toward Heneryetta; it was Homer Hart’s car.

On cross-examination the witness stated the car in which they found the whisky belonged to Homer Hart. I ■ don’t know whose whisky it was; they were all in' the car; I did not know they had any whisky in the car until we drove up to it; the car was still going; I.saw a j;ar on the seat.

George Loots, a witness for the state, testified in substance to the same as witness Boots, as to having seen the parties on the road and catching up with their car and finding the' whisky in the car; Hart said he bought the whisky but he did not say where, and paid his money for it.

On cross-examination the witness admitted they did not know there was any whisky in the car in which the defendant was riding until they drove up • beside the car. “There was a half gallon fruit jar setting up where we could see it; Boots said, ‘What you got, whisky?’ and they said, ‘Yes.’ The first time we discovered there was whisky in the car was when he stopped it coming up by the side of it.”

The defendant, Tom Murray, called as a witness in his own behalf, admitted that he, Homer Hart, and Brannon were in the car at the time the officers overtook the car and stopped it; that he made the trip with Homer Hart down about three or four miles south of Henryetta by invitation; that he did not buy any whisky that time and had nothing to do with the whisky; that the car in which he rode belonged to Homer Hart; that the whisky in the car was under the control of Homer Hart; and that he was only riding in the car by invitation from Homer Hart and had nothing whatever to do one way or another with the whisky.

The foregoing is in substance all of the testimony-on behalf of the state and the defendant.

The defendant urges as grounds for reversal of this case several errors alleged to have been committed by the trial court, and especially alleges that the court erred in overruling motion of the defendant for a new trial, and that the trial court erred in permitting the state, over the objection of the defendant, to introduce testimony that was incompetent, irrelevant, and immaterial.

The record shows that the defendant was in company with Homer Hart and that in the car in which the defendant and others were traveling was seven gallons of whisky. All the testimony shows that the car was owned by Homer Hart, and the defendant’s testimony, and the state’s, tends to show that Homer Hart bought the whisky and paid for it from his own funds. It is not disputed that the defendant knew there was whisky in the car, and that he was riding in the car where the whisky was being transported.

The question as to. whether the car was searched by the officer lawfully or unlawfully cannot be raised by the defendant, as he claimed no ownership in the car. It is true the county attorney was permitted to propound questions to the defendant on cross-examination that were immaterial to the issues in the case and tended to bring out facts prejudicial to the rights of the defendant. The testimony in this case is sufficient to warrant the jury in rendering a verdict of guilty against the defendant, but, taking all the facts into consideration, and the manner in which the trial was conducted, we are of the opinion that the punishment imposed is excessive and that justice requires a modification of the judgment and sentence from a fine of $500 and 6 months’ imprisonment to a fine of $200 and 3 months’ imprisonment; and as so modified the judgment is affirmed.

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