text:
    ISADORE GROSKINS v. STATE.
    No. A-7991.
    Oct. 16. 1931.
    (4 Pac. [2d] 117.)

      Walton, Day & Miller and Morris & Tant, for plaintiff in error.
    J. Berry King, Atty. Gen., and John Embry, Co. A tty., (A. 11. .Swank, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of a violation of the “Blue Sky Law,” and was sentenced to serve a term of seven years in the state penitentiary.

Subsequent to his conviction and prior to filing this appeal, defendant filed a petition for a writ of habeas corpus, number A-7820, 52 Okla. Or. 183, 4 Pac. (2d) 120, but before that matter had been decided by this court this appeal was filed, and by stipulation of counsel the habeas corpus proceeding is abandoned, and the validity of the judgment will be determined in this action. This appeal is by transcript.

The information alleges, in substance, that defendant with others therein named sold certain “speculative securities” to Thomas J. Hart and Anna E. Hart, same being the securities of the Puritan Royalties Corporation, a corporation organized under the laws of the state of Delaware. The sale was of 35 shares of class A, and 105 shares class B, stock of such corporation, for $100 in money, and the further consideration of 8 shares of City Service Company of a value of $248. That the value of the stock sold by defendant materially depended upon proposed future promotion and development, rather than upon tangible assets and conditions, in that the objects and purpose for which said corporation was formed were to deal, buy, contract for, and acquire oil and gas mining royalties and leases, the value of which materially depended on the actual discovery and development of such property for oil and gas purposes, and were securities of which profit and gain unusual in the ordinary course of legitimate business was promised, and were securities into the par value of which the element of chance or hazard of speculative profit or possible loss equaled or predominated over the element of reasonable certainty, safety, and investment. That the sale was made without said corporation having complied with the provisions of the Blue Sky Law.

The allegations of the information attempt to charge an offense in the sale of speculative securities as defined by section 2270, Comp. St. 1921. This section contains six definitions of “speculative securities”; only three of these are attempted to be covered by the allegations, definition (1), definition (3), and definition (4). That part with which we are here concerned is:

* * The term ‘speculative securities’ as used in this act shall be taken to mean and include, (1) All securities to promote or induce the sale of which, profit, gain or advantage unusual in the ordinary course of legitimate business is in any way advertised or promised; * * * (3) all securities into the specified par value of which the element of chance or hazard of speculative profit or possible loss equal or predominate over the element of reasonable certainty, safety, and investment; (4) all securities the value of which materially depends on proposed or promised future promotion or development rather than on present tangible assets and conditions. * * *”

The first contention is that the information is insufficient in that the exception to the application of the statute contained in section 2279, Comp. St. 1921, should be negatived in the information. This provision exempts from the operation of the statute the sale of stocks or bonds where the same are sold for cash and no commission or fee is paid directly or indirectly for the sale of the same, and no expense for such sale is charged to the company of issue or the purchaser. Defendant contends that this exception or exemption should have been negatived by proper allegation in the information. Counsel for the state insist the information does negative such exemption by alleging the stocks were not sold for cash, but were sold in part for cash and in part for exchange of other securities. They further insist that since the exemption or exception is not incorporated in the clause defining the offense, nor connected with it in any manner, it is a matter of affirmative defense.

The question arises, Is a transaction, by which speculative securities are exchanged in part for cash and in part for other securities or property, where it does not appear that any commission fee or expense was charged, constitute a sale for cash, and thus bring the transaction within the exemption of section 2279, supra? In a strict sense, a sale is the passing of title to property for a consideration in money. In a broader sense, it is a transfer of title of property by one person to another for a valuable consideration. In sections 2270 and 2279, supra, the word sale or sold evidently is used in its broader sense, since in the latter section the exemption is for a cash sale under the conditions named, and not to a sale where the consideration is in whole or in part other than cash. That is, an exchange of property is not a cash sale. The operation of a criminal statute should apply to all persons alike and does so apply unless there is some specific exception. Where a transaction within the general terms of a statute is sought to be brought within an exemption or exception provision, the exemption or exception is to be strictly applied, and the person seeking its benefits must fall clearly within its terms, or the exemption will not apply. The allegation of the information negatives the provision of exemption by the allegation that the sale was not a cash sale.

It is also a general rule that it is only when the exception in a general statute is incorporated in or with the enacting clause of the statute so as to constitute a material part of the definition or description of the offense that it need be negatived in the information. Otherwise, it is a matter of defense. Smythe v. State, 2 Okla. Or. 286, 101 Pac. 611, 139 Am. St. Rep. 918. There are exceptions to this rule, where the nature of the exemption constitutes a part of the definition or description of the offense, although it is not in the enacting clause. Territory v. Scott, 2 Dak. 212, 6 N. W. 435; United States v. Cook, 17 Wall. (84 U. S.) 168, 21 L. Ed. 538.

In the instant case, the statute defines speculative securities and makes the sale of the same unlawful, unless certain matters have been filed with the state issues commission. All the ingredients of the offense, that is, the prohibition of the sale of speculative securities, are found in sections 1 and 2 of the act of 1919 (sections 2270, 2271, Comp. St. 1921). The proviso or exception is in section 10 of the Act of 1919 (section 2279, Comp. St. 1921). This latter section does not change the ingredients of the offense, but exempts from the operation of the statute a certain kind of sale, as defined by the latter section. This is defensive matter.

It is not contended that the state does not have power to enact this class of legislation as a proper exercise of the police power to protect its citizens from imposition, fraud, and unfair dealings in securities. The validity of such legislation appears to- have been challenged in the case of Hornaday et al. v. State, 21 Okla. Cr. 354, 208 Pac. 228, 229. In that case, the constitutionality of the act was not directly declared. ¡Similar legislation has been enacted in various states which has been generally upheld. State v. Swenson, 172 Minn. 277, 215 N. W. 177, 54 A. L. R. 490; Kreutzer v. Westfahl, 187 Wis. 463, 204 N. W. 595, 602; Dunham v. Ottinger, 243 N. Y. 423, 154 N. E. 298; State v. Nordstrom, 169 Minn. 214, 210 N. W. 1001; Central Lumber Co. v. S. Dak., 226 U. S. 157, 33 S. Ct. 66, 57 L. Ed. 164; Investment Reserve Corp. v. Michigan Securities Commission, 238 Mich. 606, 214 N. W. 311; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 37 S. Ct. 224, 61 L. Ed. 493; Alabama & New Orleans Transp. Co. v. Doyle (D. C.) 210 F. 173; Hall v. Geiger-Jones Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643.

The defendant earnestly contends that the statute is unconstitutional as being too uncertain and indefinite in its terms in the definition of “speculative securities” to define a criminal offense. That definitions (1), (3), and (4) of section 2270 are so vague and uncertain that they do not inform accused of the nature and cause of the accusation against him as required by section 20, art. 2, State Const., citing 16 C. J. 67; State v. Clifford, 3 Okla. Cr. 421, 106 Pac. 557; State v. Diamond, 27 N. M. 477, 202 Pac. 988, 20 A. L. R. 1527; Missel v. State, 33 Okla. Cr. 376, 244 Pac. 462; Ex parte Westellison, 38 Okla. Cr. 207, 259 Pac. 873; Shaw v. Grumbine, 137 Okla. 95, 278 Pac. 311; Thomas et al. v. Reid et al., 142 Okla. 38, 285 Pac. 92; U. S. v. Capital Trac. Co., 34 App. D. C. 592, 19 Ann. Cas. 68; United States v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; Fisher v. State Insurance Board, 139 Okla. 92, 281 Pac. 300; Matthews v. Murphy (Ky.) 63 S. W. 785, 786, 54 L. R. A. 415; Green v. Blanchard, 138 Ark. 137, 211 S. W. 375-377, 5 A. L. R. 84; Connolly v. General Construction Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322; State v. Skinner, 20 Ala. App. 204, 101 So. 327.

The statute of Alabama in defining “speculative securities” substantially follows our statute. The Skinner Case, supra, was before the Court of Appeals of Alabama. That court certified to the Supreme Court certain constitutional questions, among them the question whether the definition “speculative securities” was sufficiently definite to apprise the defendant of the nature and cause of the accusation against him. The Supreme Court (20 Ala. App. 204, 101 So. 330), answering the certified question, said:

“Definitions 1 and 3 are each vague, indefinite, and uncertain as to their meaning. They each fail to definitely define the speculative securities intended. The description and definition of speculative securities in 1 and 3 are too uncertain and indefinite to be valid under section 6 of the Bill of Bights. ‘Profits, gain, or advantage, * * * unusual in the ordinary course of legitimate business’ is vague and uncertain. There is no fixed standard in these definitions, 1 and 3, to go by. A person by reading them cannot know what act it is his duty to avoid. The act, declared a crime, by the violation of either, is not stated with certainty so it can be known by a person. It leaves it to be determined by the court or the jury in each particular case. This is not permissible. State v. Goldstein, 207 Ala. 569, 93 So. 308.
“These definitions, appearing in an indictment, would not indicate with certainty and clearness the nature and cause of the accusation against the accused as the Constitution requires, and they must be declared void under section 6 of the Bill of Rights. Definitions numbered 2, 4, 5, 6, 7, and 8, are sufficiency clear, definite, and certain to meet the requirements of section 6 of the Bill of Rights, in the Constitution, and they are not unconstitutional and void. There is not sufficient obscurity or uncertainty in any one of them to render it void. Definition 4 was construed and sustained by the Supreme Court of North Dakota in State v. Welch, 42 N. D. 44, 172 N. W. 234. This act is framed in part at least, like, and is identical in some of the definitions, with an act in Oklahoma, which was construed in part and sustained by the Criminal Court of Appeals of that state in Hornaday v. State [21 Okla. Or. 354] 208 Pac. 228. * * *”

When we attempt to analyze definition 1, section 2270, supra, the ordinary mind is unable to determine what is permitted and what is prohibited. It is not always possible to know what constitutes “legitimate business.” Nor may one, if he has been able to determine what is “legitimate business,” be certain as to what is the “ordinary course” thereof. Then if “profit” is clear, is “gain or advantage” clear. There is no guide in the statute by which it is possible to determine with any degree of certainty what may be lawful or unlawful under this definition.

Next considering definition 3 of section 2270, supra, the ordinary mind is in like difficulty in attempting to determine just what is lawful or unlawful. In what transaction in securities does the “element of chance or hazard” not enter? When does the chance of “profit” become a “speculative profit,” or when does the element of chance not threaten with “possible loss”? These things being uncertain, how is it possible to know if they are “advertised or promised”? Definitions 1 and 3 are so indefinite that an information charging their violation does not apprise the accused of the nature and cause of the accusation against him. They are unconstitutional under section 20, art. 2, State Const.

The objections applicable to definitions 1 and 3 do not obtain in the same degree as to definition 4, section 2270, supra. It is possible to know whether a security depends upon future promotion or developments, or upon tangible assets. The ordinary mind comprehends the distinction. The main objection directed to this definition is the use of the words “materially depends.” This is a general term, but a statute may use general terms. It is only required that the general terms shall so definitely define the offense that the accused shall be informed of the nature and cause of the accusation against him. The words “depends” or “materially depends” are not technical terms. Their use in this definition does not render it invalid for uncertainty. State ex rel. Rossen v. Welch, Sheriff, 42 N. D. 44, 172 N. W. 234; Duerkob v. Brown (Mo. App.) 255 S. W. 962; Thompson v. State, 6 Okla. Or. 50, 117 Pac. 216.

The punishment assessed seems to us to be excessive, but since the appeal is by transcript, and the testimony is not before us, we cannot say that justice requires a reduction.

The case is affirmed.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    IRA MOOSE v. STATE.
    No. A-8147.
    Oct. 16, 1931.

    (4 Pac. [2d] 694.)

      Carter & Carter, S. H. Davis and W. A. Ratteree, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okfuskee county of transporting liquor, and was sentenced to pay a fine of $250 and to serve 120 days in the county jail.

Upon arraignment of defendant on this charge, he entered a plea of guilty, and the judgment is on this plea. Sentence was deferred for a period of five days. Two days after sentence he filed a motion for a new tidal and for leave to withdraw his plea of guilty. The only error assigned is that the court erred in denying this application. The motion, in substance, sets out that counsel for defendant before plea of guilty conferred with the county attorney and was led to believe that, if a plea of guilty was entered, defendant would receive a $50 fine and 80 days in jail. The affidavit of his counsel is that, when he conferred with the county attorney, he was informed the county attorney would make no recommendation, but the county judge probably would give him “thirty-fifty.’-’ He then informed the county judge, who in substance stated that what the county attorney recommended would be satisfactory. Defendant- filed his affidavit that he was informed by his counsel that, if he pleaded guilty, the county attorney would recommend tbe minimum punishment and that tbe plea was entered on this understanding. It is not claimed that defendant has any defense to the charge against him. The county attorney makes affidavit in substance that counsel for defendant asked what recommendation he would make in case of a plea of guilty; that he answered he would make no recommendation; that in case of a conviction it would be a fourth conviction; that he believed defendant should have the maximum punishment, but if the county judge did not go any stronger than in many other cases he would not get more than the minimum; that just before the plea was entered defendant and his father inquired further about the punishment, and he informed them he would make no recommendation. The court made no specific finding on the partially controverted question, but his overruling the application is a finding against defendant.

This court has had occasion many times to consider the question here presented. It has followed the liberal rule on the right of a defendant to withdraw his plea, particularly before judgment is rendered. Where it appears the plea is entered without the advice of counsel or through inadvertence, ignorance, or on any agreement or understanding that the punishment is tO' be mitigated, the trial court should be indulgent in permitting the plea to be withdrawn. Hart v. State, 29 Okla. Cr. 414, 233 Pac. 1095; Turner v. State, 33 Okla. Cr. 97, 242 Pac. 1053; Morgan v. State, 33 Okla. Cr. 277, 243 Pac. 993; Fromcke v. State, 37 Okla. Cr. 421, 258 Pac. 927; Cook v. State, 45 Okla. Cr. 69, 281 Pac. 819. In the instant case it does not appear there was any definite agreement between counsel for defendant and the county attorney as to the punishment. Nor does it appear that the county judge indicated any punishment further than his statement in substance that what was agreeable with the county attorney would be agreeable with him. Under these circumstances no abuse of discretion is made to appear.

The punishment appears severe, but, as the plea is guilty and the facts and circumstances of the offense are not before us, we cannot say that justice requires a modification.

The case is affirmed.

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


author: DAVENPORT, P. J.

text:
    RALPH FREEMAN v. STATE.
    No. A-8174.
    Oct. 16, 1931.
    (4 Pac. [2d] 120.)

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

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Olney Longbotham with having possession of mash, wort, or wash fit for distillation; was tried separately and convicted, and sentenced to pay a fine of $100, and be imprisoned in the county jail for 60 days, and has appealed.

The testimony on behalf of the state shows that the sheriff and other officers went to the home of Olney Long-botham, which is some distance east of this defendant’s home, and claim to have found where a mixture of grain and water had been poured out on the ground; one of the officers says in looking around they found several holes where mash had been poured; when they went to the place Mr. an<l Mrs. Longbotham, Mr. Freeman, and a man by the name of Dillingham were there; defendant and Dill-ingham were in defendant’s car, and the motor was running. They claim to have found some yeast in the hen house, but stated it was rotten and not fit for use, and seemed to have been on hand for some time. Although the substance they found had been poured on the ground, the officer stated he believed it would have been fit for distillation, but does not give his reason for thinking so. All the mash, wort, or wash the officers claim to have found had been poured out at the home of Olney Long-botham. The only testimony tending in any way whatever to connect the defendant with Longbotham or the mixture the state witnesses claim was mash, is the fact that when the officers got to the Longbotham house the defendant Freeman and a Mr. Dillingham were sitting in a car with the motor running.

Tlie defendant denies any knowledge of any masli being at the Longbotham place, and denies having anything to do with the mash, if any was there. Defendant stated he went by that morning to say goodbye to Mr. Longbotham, as he was going to move away from the place where he was living. In this he is corroborated by Mr. Dillingham, who testified to the same facts as did the defendant, and further stated they had left the defendant’s home that morning to go to Perryton, Tex.

There is some testimony introduced with reference to certain articles that might be used in a still being found around the defendant’s home, but in this case the defendant is jointly charged with Olney Longbotham with possessing and fermenting a compound mixture of mash, wort, or wash fit for distillation and manufacture of distilled spirits and alcoholic liquor; the selling, bartering, giving away, and otherwise furnishing or disposing of which is prohibited by the laws of the state of Oklahoma.

The defendant has assigned several errors alleged to have been committed by the trial court. The tenth assignment is:

“Said court erred in overruling defendant’s motion for a new trial.”

This assignment is all the assignment necessary to be discussed for the reason that the defendant’s motion for a new trial covers all the questions raised by him. The defendant in his motion for a new trial urges many reasons why the court should grant him a new trial. One of the grounds urged by the defendant is that the evidence is insufficient to sustain the verdict and judgment. We agree with the contention of the defendant. There is no testimony in the record tending to show that the defendant had actual or constructive possession of mash, wort, or wash fit for distillation.

A careful examination of the evidence in this case only tends to' create a suspicion or possibility that the defendant may be guilty. Where there is evidence to support a verdict, this court Avill not pass upon its weight and suffciency in order to determine Avhether the defendant is guilty as charged, but we hold there must be evidence to support the essential allegations of the offense charged. Where there is no evidence to support the verdict, or where it is of such weak or inconclusive character that the conclusion of guilt may not reasonably be drawn from it, it should be set aside. Ovens v. State, 11 Okla. Or. 118, 143 Pac. 204; Jefferson v. State, 31 Okla. Cr. 44, 236 Pac. 914; Taylor v. State, 36 Okla. Cr. 419, 255 Pac. 158.

The evidence'is insufficient to sustain the verdict and judgment. The judgment is reversed.

EDWABDS and CHAPPELL, JJ., concur.


text:
    G. L. (BUD) PECK v. STATE.
    No. A-8106.
    Oct. 16, 1931.
    (4 Pac. [2d] 127.)

      W. H. Cooper, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Caddo county of attempting to shoot with intent to kill, and his punishment fixed at imprisonment in the penitentiary for five years. Motion for new trial was filed, considered, overruled, exceptions saved, and defendant appeals.

The testimony on behalf of the state tends to show that on the 3d day of October, 1929, in the evening, the defendant was returning home with his son along the streets of Bridgeport, and, while on the way home, passed a filling station operated by Charlie Goucher; in a conversation with one of the Goucher boys at the filling station, the state witnesses contend that the defendant attempted to shoot the prosecuting witness Charlie Goucher. The defendant contends that while in a conversation with one of the Goucher boys about Warren Stapp he was struck and dazed and did not know who his assailant was; that he attempted to get his gun out of the holster. The record shows that up to the time of the difficulty the defendant and prosecuting witness had had no trouble Avhat-ever; had been friends. The record further discloses that the defendant had resided in or near Bridgeport for a number of years. The defendant insists that he had nothing against the witness Goucher, and that he only tried to get his gun in order to try to keep from being injured, as some one had already struck him over the eye. It is admitted by the state and the defendant that the defendant had some time previous had some trouble with Warren Stapp.

The defendant has assigned several errors alleged to have been committed in the trial of the case. The fifth and eighth assignments of error will be considered together. They are as follows:

“5. Said court erred in overruling the plaintiff’s motion for a new trial.
“8. Error of the court in admitting certain incompetent, irrelevant and immaterial testimony.”

It is not deemed necessary for the purpose of this opinion to set out in full the testimony of the state and the defendant. The defendant urges that the court committed reversible error in admitting, over his objections, incompetent and immaterial testimony, and permitting the county attorney to propound to the defendant on cross-examination incompetent and improper questions relating to acts and matters which tended to prejudice the rights of the defendant before the jury, and it is especially urged by the defendant that the court erred in admitting the following testimony, over the objection of the defendant:

“Q. And what was it you went to the penitentiary for? By Mr. Stovall: Objected to as incompetent, irrelevant and immaterial. By the Court: Overruled. By Mr. Stovall: Exceptions. Q. I will ask you if it isn’t a fact, Bud, you went to the penitentiary for a year and a day for getting mad and in a sudden fit of anger pulling your pistol and shooting a man in the arm. A. That was for shooting a fellow. Q. And when you shot at him you shot at him to kill him, and, after you served your term in the penitentiary and came back you say somebody filed peace bond against you? (Objection was made and sustained. Same matter was admitted later.) Q. You weren’t referring to the charges hied in 1929 in the county court against you for pointing a pistol? A. We have been fighting for that to come here for close to a year, Judge. By Mr. Stovall: Objected to as incompetent, irrelevant and immaterial. By the Court: Overruled. By Mr. .Stovall: Exceptions. Q. I will ask you if it isn’t a fact that the charges you refer to as charges,, a prosecution on the part of the people of Bridgeport on charges that were brought about by you yourself getting drunk and carrying your pistol and in a mad fit of drunken anger pulling your pistol and threatening to kill people and shooting at them? By Mr. Stovall: Objected to as incompetent, irrelevant, and immaterial. By the Court: Overruled. By Mr. Stovall: Exceptions. Q. I will then ask you if it is not a fact in 1929, along about the time this happened you did not get drunk and go to the home of Mr. Ludrick in Bridgeport and pull your pistol and stick it in the breast of a young girl and threaten to kill her if she didn’t tell you where your daughter was? A. That is not so. I never done it. Q. And charges are filed in there now, are they not? A. They are filed but they are not true. Q. I wrill ask you if it is not a fact that the people in Bridgeport are not afraid of you? A. No, sir. Q. They are not? A. They are not. Q. And you haven’t threatened some of them? A. I haven’t. Q. And since you have been in jail and after your father wanted to make the bond you threatened his life and threatened to kill him when you got out? A. No, sir. Q. And threatened the life of other people up at Bridgeport, haven’t you? A. No, sir.”

It is further disclosed by the record that the court, over the objections of the defendant, permitted the sheriff to testify as to what the lawyer for the defendant had told him the defendant had said about his case1, and about making bond. There are many other complaints in this case, and many other facts disclosed by the record which tend to show that the defendant had for some reason been kept in jail almost a year before he was brought to trial upon this charge, notwithstanding he had filed his application for a change of judge, Avhich was granted, and had also filed an application for a change of venue, which was denied.

From the record in this case, the court, over the objection of the defendant, permitted all of the past history of the defendant to be related in detail, whether hearsay or positive testimony. It is the duty of the trial court to see that fair and impartial trials are had, and that all the rights of the accused as well as the rights of the state are properly preserved. A person accused of crime is entitled to a fair and impartial trial. When the record discloses irregularities calculated to prejudice the substantial rights of the defendant a judgment will be reversed. Green v. State, 6 Okla. Cr. 585, 120 Pac. 667; Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Goben v. State, 20 Okla. Cr. 220, 201 Pac. 812.

A defendant guilty or innocent has a constitutional right to have a fair and impartial trial. Bramble v. State, 37 Okla. Cr. 35, 255 Pac. 1104.

There is no theory known to laAV upon which much of the testimony complained of by the defendant could be made competent. A conviction had on a record showing, such proceedings cannot be upheld. When a person charged with a crime is to be imprisoned, he must be tried and competed according to law. For the reasons herein stated, the defendant was deprived of a fair and impartial trial.

There are other errors complained of by the defendant, but in the vieAV we take of this record it is not necessary to consider them. The judgment of the trial court is reversed.

EDWARD,S, J., concurs. CHAPPELL, J., disseut-ing.


author: CHAPPELL, J.

text:
    EARL ORCUTT v. STATE.
    No. A-7979.
    Sept. 12, 1931.
    Rehearing Denied Oct. 16, 1931.
    (3 Pac. [2d] 912.)
    Luther Lane, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for ten years.

The only question presented in this appeal is that of former jeopardy.

The facts so far as the question of former jeopardy is concerned are that this defendant, together with Lester Garvin and Peewee Wilson, forced W. K. Cottrell and W. E. Sturdevant to drive Cottrell’s automobile out southeast of the city of Tulsa a few miles and there compelled them at the point of a gun to get out of the car, and while this defendant held a gun upon them, one of his codefend-ants robbed Cottrell of $40 in money, a gold watch, and diamond ring, and the other one robbed Sturdevant of $82 in money.

The defendant was first tried for the robbery of Cot-trell and was acquitted, and he now contends that that acquittal was equivalent to an acquittal for having robbed Sturdevant.

If the defendant by reason of his acquittal upon the charge of robbery of Cottrell cannot be further prosecuted in this case for the robbery of Sturdevant, then all the contentions alleged in the brief of the plaintiff in error are well taken. However, if the acquittal in the case of Cottrell was not a bar to the subsequent prosecution in the case of Sturdevant, then all the contentions alleged in the brief of plaintiff in error must fall, as they are all based primarily on this proposition.

Defendant in his brief cites Jackson v. State, 11 Okla. Cr. 523, 148 Pac. 1058. In that case defendant had been prosecuted for the possession of four barrels of whisky and acquitted. Subsequently, he was prosecuted for the transportation of the same whisky. The court there held that, possession being necessary in both cases, they constituted the same offense. But, suppose defendant had been charged with transporting the whisky and selling some of it to John Jones; in that case it could not be contended that the offenses were the same. So that Jackson v. State, supra, does not support tbe contention of defendant.

On the same day, the state filed two informations against the defendant, one charging him with the robbery of W. K. Cottrell, and the other charging him with the robbery of W. E. Sturdevant. The record contains the two informations — one being that in the case at bar, wherein the defendant was charged with the robbery of W. E. Sturdevant; the other information charging the robbery of W. K. Cottrell, and upon which defendant was acquitted.

Defendant contends that the robbery of Cottrell and Sturdevant, occurring practically at the same time and at the same place, were not separate robberies, but one act, and that therefore his plea of former jeopardy should have been sustained.

This question involves the construction of section 21, of article 2 of the Constitution, which reads as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

It also involves the construction of section 2626, C. O. S. 1921, which reads as folloAvs:

“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.”

Robbery is defined by section 1784, C. O. S. 1921, to be:

“A wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

In Harris v. State, 17 Okla. Cr. 69, 175 Pac. 627, 632, this court said:

“The burden is upon the defendant to show that his plea of former acquittal and former jeopardy is well founded, both in law and fact.”

See, also, Harmon v. State, 43 Okla. Cr. 251, 278 Pac. 354; State v. Tennison, 44 Okla. Cr. 409, 281 Pac. 313.

The first question to be determined is, Was the robbery of Cottrell the same crime as the robbery of Sturde-vant, occurring as it did, under the circumstances set forth in the record?

Wharton’s Criminal Law, vol. 1 (11th Ed.) p. 508, states the rule:

“On a plea of former acquittal or conviction the accused must show that he was acquitted or convicted of the same accusation against him in the former trial; not of an entirely different offense growing out of the same state of facts or transaction.
“The same act may constitute two or more offenses which are distinct from each other. In such cases the accused may be separately prosecuted and punished for each, and a conviction or acquittal or prosecution for one will not constitute an acquittal and a bar for the other. Thus where two or more are assaulted, robbed or their goods stolen, or are shot or murdered by one and the same act at the same time, conviction or acquittal on an in-dietment for offense against the one will he no bar to a trial on an indictment charging the offense against the other.”

8 Ruling Case Law, p. 143, § 128, states the rule thus:

“The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to a second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.
“When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.
“A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed.”

In 16 Corpus Juris, p. 263, § 443, the rule is stated:

“The prohibition of the common law and of the Constitution is against a second jeopardy for the same ‘offense’, that is, for the identical act and crime; or, as expressed in a number of cases, to entitle a defendant to plead successfully former jeopardy, the offenses charged in the two prosecutions must be the same in law and in fact. The plea will be vicious if the offenses charged in the two indictments are perfectly distinct in point of law, however nearly they may be connected in point of fact. It is not necessarily decisive that the two offenses may have some material fact or element in common, or that they are similar, where they are not in fact the same. The test is not whether defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The term ‘same offense,’ however, does not signify the same offense eo nomine, but the same criminal act, transaction or omission.”

In State v. Ragan, 123 Kan. 399, 256 Pac. 169, that court said:

“Defendant with three others in a stolen automobile, defendant at the wheel, drove to a drug store, robbery in view. Defendant remained in the car while his three companions proceeded to rob the store. While the robbery was being perpetrated, and at the approach of officers, defendant got out of the car and fled. Without knowledge of the robbery, and after its completion, but before the robbers had departed, the officers entered the store, when one of them was shot by one of the robbers, death ensuing. Defendant was acquitted of the charge of murder, and in a later action for robbery filed a plea of former jeopardy. Held, such plea was properly overruled.
“In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not necessarily decisive that the two offenses may have some material fact in common (State v. Schmidt, 92 Kan. 457, 140 Pac. 843).”

In Keeton v. Commonwealth, 92 Ky. 522, 18 S. W. 359, that court said:

“Presenting a pistol at two persons at the same time, coupled with a demand of their property, and compelling a surrender thereof by both at the same time, constitutes distinct offenses against them, — an assault on and robbery of each.” ,

In Re Allison, 13 Colo. 525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224, the Supreme Court of Colorado said:

“Robbing different individual passengers on a stage at tbe same time and in rapid succession constitutes a distinct offense for each individual, and a conviction for robbing one is no bar to a prosecution for robbing others.”

In the body of the opinion the court said:

“Relator was not tried for robbing the stage; each of the indictments charged him with robbing a different individual passenger upon the stage. And no doubt can be entertained but that these various robberies were distinct offenses, although committed at the same place and in rapid succession. They constituted separate acts; but, even if regarded as a single act, they affected separate objects. And, ‘where one unlawful act operates on several objects, there may be several offenses committed, and so several prosecutions for the same criminal transaction, and an acquittal or conviction for one such offense will not bar a prosecution for the other.’ Fox v. State, 50 Ark. 528, 8 S. W. 836; Whart. Crim. Pl. (9th Ed.) § 468 et seq.
“The case at bar is to be distinguished from the case where an act operates upon a single object, and the different alleged offenses are simply degrees or ingredients of one crime.”

Based on this rule, it has been held that, if the killing of two persons is by distinct and separate acts, though done at the same time and as a part of same transaction, an acquittal for the killing of one is not a bar to the prosecution of the same person for the killing of the cither. Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, 101 Pac. 111; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708; Agustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; People v. Majors, 65 Cal. 138, 3 Pac. 597, 52 Am. Rep. 295, 5 Am. Cr. Rep. 486.

In State v. Nash, 86 N. C. 650, 41 Am. Rep. 472, the Supreme Court of North Carolina held that an indiscriminate assault upon several persons is an assault upon each individual. Phillips v. State; 85 Tenn. 551, 3 S. W. 434; State v. Standifer, 5 Port. (Ala.) 523; Hawkins v. State, 1 Port. (Ala.) 475, 27 Am. Dec. 641.

The two informations filed against the defendant show upon their face that he was not charged with robbing the automobile. Each of the informations charged him with robbing a different individual passenger in the automobile. These various robberies were distinct offenses, although committed at the same place and in rapid succession. They constituted separate criminal acts, and an acquittal or conviction for one of such offenses will not bar a prosecution for the other.

There is yet another test by which it may be deter-' mined whether the acts complained of constitute more than one offense; that is the test of evidence.

In 8 Ruling Case Law, p. 143, § 128, the rule is stated:

“In determining whether both indictments charge the same offense, the test generally applied is that when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second, but if the facts which will convict on the second proposition would not necessarily have convicted on the first, then the first will not be a bar to the second, although the offense charged may have been committed by the same state of facts.”

In 16 Corpus Juris, p. 265, § 445, the rule is státed :

“A test almost universally applied to determine the identity of the offenses is to ascertain the identity, in character and effect, of the evidence in both cases. If the evidence which is necessary to support the second indictment was admissible under the former, was related to the same crime, and was sufficient if believed by the jury to have warranted a conviction of that crime, the offenses are identical, and a plea of former conviction or acquittal is a bar. But if the facts which will convict on the second prosecution would not necessarily have convicted on the first, then the first will not be a bar to the second although the offenses charged may have been committed in the same transaction. If the evidence required to convict under the first indictment would not be sufficient to convict under the second, hut proof of an additional fact would be necessary to constitute the offense charged in the second, then the former conviction or acquittal cannot be pleaded in bar to the second indictment.”

In Jackson v. State, 11 Okla. Cr. 523, 148 Pac. 1058, this court said:

“On a plea of former acquittal, in determining whether the two informations charge the same offense, the test is whether the evidence necessary to support the second information would have been sufficient to procure a conviction upon the first information.”

In Estep v. State, 11 Okla. Cr. 103, 143 Pac. 64, 65, this court said:

“Under the constitutional guaranty not to be twice put in jeopardy, the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to one information will equally sustain the other.”

Bobbery under section 1784, supra, is: (a) A wrongful taking of personal property in the possession of another, (b) from his person or immediate presence, (c) and against his will, (d) accomplished by means of force or fear.

Bobbery is a crime against the person, and is so classified in chapter 6, article 24, C. O. S. 1921 (sections 1784-1793). The robbery of W. K. Cottrell would not be equivalent to the robbery of W. E. iSturdevant, two' different persons, because Cottrell could not give his consent to the robbing of Sturdevant, nor could Sturdevant give his consent to' the robbing of Cottrell, and it would be immaterial whether the robbery of Cottrell was against the consent of Sturdevant or vice versa. The robbing of Cottrell was an entirely different crime from the robbing of Sturdevant, although committed by the defendant and his codefendants at about the same time as the robbing of ¡Sturdevant.

Suppose the state in the trial of defendant for the robbery of Cottrell had called all its witnesses who did testify and they had testified that defendant robbed Stur-devant; no one would be foolish enough to say that this evidence would have supported a conviction for the robbery of Cottrell. To convict the defendant for the robbery of Cottrell, it was not necessary for the state to show that the defendant robbed Sturdevant, and this evidence would have been inadmissible against the defendant without proof first that he had robbed Cottrell.

It is apparent that evidence necessary to convict defendant of the robbery of Cottrell would not have been sufficient to convict him for the robbery of Sturdevant.

In the case at bar it was not necessary for the state to prove that the defendant robbed Cottrell. The question before the jury in this case was whether defendant had robbed Sturdevant, and whether he had at about the same time robbed Cottrell was wholly immaterial as far as the evidence necessary to convict in the case at bar was concerned.

While there is a conflict in the decisions on the question here presented, the better reasoned authorities are to the effect that, where a robbery occurs in which two or more persons are held up and robbed, the crime is a separate offense against each individual from whom property ig taken against his will, although the taking occurred at the same place, and in rapid succession.

The defendant’s contention of former jeopardy being without merit, the cause is affirmed.

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


text:
    J. D. DINGLER et al. v. STATE.
    No. A-8200.
    Oct. 16, 1931.
    (3 Pac. [2d] 1049.)
    Billingsley & Stanley, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Judgment was rendered against the plaintiffs in error in said cause on the 3d day of March, 1931. The petition in error was filed in this court on the 30th day of June, 1931.

At the time judgment was rendered, defendants were given 30 days to make and serve case-made, which expired on the 3d day of April, 1931. On the 2d day of April, on application of defendants, the court further extended the time to make and serve case-made for 30 days; and on the 4th day of May, 1931, on application of the defendants, the court extended the time to make and serve case-made for 30 days; and on the 3d day of June, 1931, on application of defendants, the court further extended the time to make and serve case-made for 10 days, which time expired on the 13th day of June, 1931. The case-made was not signed and settled until the 18th day of June, 1931.

The court made no order extending the time for plaintiffs in error to file their appeal in this court. The appeal having been filed in this court 119 days after judgment was rendered, this court does not acquire jurisdiction. The appeal is therefore dismissed.

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


text:
    I. L. BROWN et ux. v. STATE.
    No. A-8113.
    Oct. 16, 1931.
    (3 Pac. [2d] 1050.)
    Prentiss E. Rowe, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted in the district court of Lincoln county of the crime of burglary in the second degree, and each received a sentence of imprisonment in the penitentiary for two years; and appeal.

Tbe petition in error and case-made were filed in this court on March 17, 1931. No further appearance has been made by the defendants, nor any further extension of time asked to file brief in support of the assignment of errors.

Where no< brief is filed and no personal appearance made, this court will presume that the appeal is without merit or has been abandoned. We have carefully examined the record and find that the information properly charged an offense; that the defendants were accorded a fair and impartial trial; that no fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    ADAM WEBER v. STATE.
    No. A-8170.
    Oct. 16, 1931.
    (3 Pac. [2d] 1051.)
    Shelton & Shelton, for plaintiff in error.

      The Attorney General and Ted B. Fisher, Co. A tty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county of willfully, unlawfully, and knowingly permitting Jim Mowels and Harvey Weber to erect and construct a still, not registered as required by law, on his premises, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for 60 days.

The evidence of the state was that the defendant had told the officers that there was a still in operation in his barn; that defendant’s son had been wounded in a gun battle and had been taken to a hospital; that the officers went to the hospital and there met defendant, who told them that a still was in his barn; that the parties were paying him $50 a week for the privilege of operating the still in the barn on his place, and had been operating it about three weeks; that the officers went out to defendant’s farm and from the road could smell whisky mash; that they could hear the roar of a gas fire under a burner ; that as they approached the barn they could see a still in operation through the open door; that the officers made no search of the premises, but seized the still.

Defendant contends first that the court erred in overruling his motion to suppress the evidence, for the reason that the officers had no search warrant and the search and seizure was in violation of defendant’s constitutional rights.

In Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150, this court said:

“A search for intoxicating liquors without a search warrant is not 'unreasonable,’ within the meaning of the Constitution, where it is made by officers, who', before entering the premises, could smell mash cooking, which they knew by their sense of smell was whisky mash, and where they observed a person moving around with a flash light where a still was in operation.”

Under the facts as disclosed by the evidence of the state, no search warrant was necessary and the evidence obtained was admissible.

Defendant next contends that the court erred in overruling his motion for a directed verdict at the close of the state’s evidence.

The evidence being sufficient to support the verdict of the jury, the court very properly overruled defendant’s motion.

Defendant next contends that the punishment is excessive.

It appears from the record that the defendant was permitting the manufacture of whisky upon his premises, for a money consideration. The violation of the law being made deliberately and with intent to profit thereby, the punishment assessed by the jury was justly merited by defendant.

For the reasons stated, the cause is affirmed.

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


author: CHAPPELL, J:

text:
    C. E. THOMPSON v. STATE.
    No. A-8141.
    Oct. 16, 1931.
    (3 Pac. [2d] 1119.)

      Carter & Carter, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J:

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county of the crime of unlawful possession of a still, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for 60 days.

The evidence of the state was that the officers had a search warrant for the premises occupied by defendant, and that in a search of defendant’s house they found a 50-gallon still being operated by the defendant; that one Gatlin was there; that defendant told them that the still was his and Gatlin had nothing to do with it.

On arraignment, defendant entered his plea of guilty and was fined $500 and sentenced to serve six months in the county jail. On his application the judgment was set aside and defendant allowed to withdraw his plea of guilty, and thereupon the case was tried with the result as heretofore stated.

Defendant in his brief says:

“We have set out in our petition in error seven reasons why the judgment should not stand. We will confine our contentions to assignment number 5; ‘That the verdict of the jury is not supported by the evidence.’ ”

The particular contention made in this assignment is that the affidavit and search warrant are insufficient to authorize the search. The affidavit and search warrant are set out in the case-made and are sufficient on their face to authorize the search and seizure, and the evidence obtained thereby was admissible.

For the reasons stated, the cause is affirmed.

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


text:
    FONCE GRADY v. STATE.
    No. A-8187.
    Oct. 20, 1931.
    (3 Pac. [2d] 1049.)
    Charles G. Ozmun, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the court at a fine of $50 and costs and imprisonment in the state penitentiary for a period of one year.

Judgment was rendered in said cause on the 26th day of February, 1931. The appeal was filed in this court on the 17th day of June, 1931. No briefs have been filed and no appearance made for oral argument.

Where no briefs are filed, this court will examine the record for fundamental errors, and, where none appear, and the evidence supports the verdict of the jury, the cause will be affirmed. The cause is therefore affirmed.

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


text:
    J. B. BURNS v. STATE.
    No. A-8144.
    Oct. 24, 1931.
    (4 Pac. [2d] 115.)
    MacDonald & MacDonald, for plaintiff in error.
    J. Berry King-, 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 Bryan county of passing a bogus check and his punishment fixed at imprisonment in the state penitentiary for a term of two years

The information alleges the commission of the crime in May, 1920 The trial was in October, 1930. A motion to dismiss the ease for the reason that defendant Avas not accorded a speedy trial Avas filed. x\ hearing on this motion was had, at which hearing it was shown that, after the prosecution was commenced in 1920, defendant was arrested at Salt Lake City, Utah, that he resisted extradition, but was returned to this state and was lodged in the jail at Durant, but soon escaped, and was not apprehended and returned to jail until April, 1928. In a few days he was released on bail and remained at liberty until his trial.

The only contention made is that the court erred in denying his motion to dismiss the prosecution. Article 2, § 20, state Const., guarantees a speedy trial to every person charged with crime. Section 2913, Comp. Stat. 1921, is a statutory provision to supplement and make effective the constitutional guaranty. In substance, defendant contends that it is enough for the accused to show that the time fixed by the statute after information filed has expired, and that the case was not postponed on his application; that, if there was any cause for holding him a longer time without trial, it is for the prosecution to show it. As we said in the case of Harris et al. v. Ogden, District Judge, 44 Okla. Cr. 418, 281 Pac. 316, there is an apparent conflict in the opinions of this court applying this constitutional guaranty and statutory supplement. Some of the cases appear to sustain the contention of defendant. Culver v. State, 11 Okla. Cr. 4, 141 Pac. 26; Smith v. State, 27 Okla. Cr. 294, 227 Pac. 901; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 Pac. 485; Bayne v. State, 43 Okla. Cr. 440, 279 Pac. 695. The other line in substance holds that, in the absence of a proper record affirmatively showing the contrary, the presumption is that the court continued the case for a presumably lawful cause, and the burden is on defendant, in support of his motion to dismiss, to show the failure on the part of the state to bring the cause to trial is due to laches on the part of the state through its prosecuting officers; that is, the presumption is that the delay was caused by or with the consent of defendant; that when a defendant is on bail he must demand a trial or resist the continuance of the case. If he has not demanded and been refused a trial, he is not entitled to a discharge under the constitutional and statutory provisions. State ex rel. Davis v. Bayless, District Judge, 38 Okla. Cr. 129, 259 Pac. 606, and authorities cited; Davis v. State, 44 Okla. Cr. 141, 279 Pac. 976; Harris et al. v. Ogden, District Judge, 44 Okla. 418, 281 Pac. 316. See, also, Bailey v. Holden, County Judge, 25 Okla. Cr. 206, 219 Pac. 961; Francis et al. v. State, 26 Okla. Cr. 82, 221 Pac. 785; Duvall v. Freeman, Judge, 32 Okla. Cr. 39, 239 Pac. 939; Ex parte Menner, 35 Okla. Cr. 252, 250 Pac. 541; Griffith v. State, 36 Okla. Cr. 322, 254 Pac. 112; Stearns v. State, 45 Okla. Cr. 438, 283 Pac. 1028.

The law as stated in State el rel. Davis v. Bayless, supra, Davis v. State, supra, Harris et al. v. Ogden, District Judge, supra, is the correct rule. The case of Clinkenbeard v. State, in so far as in conflict with this opinion, is expressly overruled.

Defendant, having wholly failed to show that he demanded a trial and resisted continuance, was not entitled to have the prosecution dismissed for failure to award a speedy trial.

The case is affirmed.

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


text:
    CHARLES STEEN v. STATE.
    No. A-7890.
    Sept. 25, 1931.
    Withdrawn, Corrected, Refiled, and Rehearing Denied Oct. 24, 1931.
    (4 Pac. [2d] 122.)
    Wells & Greer and White & White, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder, convicted of manslaughter in the first degree, and sentenced to the state penitentiary for a. period of four years, and appeals.

The evidence of the state tends to show that the defendant, on the 15th day of April, 1929, at his home in the oil fields near Seminole, Olda., shot the deceased with a shotgun, from the effects of which wounds the deceased died. The defendant admitted the shooting, but insisted that he shot the deceased in his own necessary self-defense. There were two eyewitnesses to the killing. Ransom. Heath testified for the state, in substance, as follows:

“I know the defendant Charles Steen; I know where his place was located on the 15th day of April, 1929; I was at his place twice that day, the first time in the afternoon, and the second occasion a little after 8 o’clock in the evening; I had seen Leonard Larimore several times; when I got back to the Steen place in the evening I saw Mr. Steen, his wife, and another man; I afterwards saw Leonard Larimore; he came into the main room of the Steen building; I was talking to Mr. Steen when Larimore came in; Larimore lived about fifty yards from Steen’s place; Steen went out of the room, and Larimore and I was standing in the door that goes from the main room into the south room; we talked about two minutes when my attention was attracted to Mr. Steen saying, in a pretty loud voice, ‘Get out Brownie’; I think that was what they called Leonard Larimore; when Steen said, ‘Get out Brownie,’ I turned but could not see him, and about that time there was a shot fired; it was from the northeast of where I was standing; I was then within about two or three feet from Larimore; something struck me in the finger and over the eye; I suppose it was shot; it may have been splinters ; it knocked the hide off; when the shot was fired, Lari-more fell; I left the room before Larimore got through falling; I went out through a window; after I got out I heard other shots; I could not tell any difference in the shots; all I know it was gunshots; after I heard the other shots, Iwent back into the house; Mr. Steen was standing in front of the door that went into the south room where I had been standing; he had a shotgun in his hand; Mr. Steen said he had shot Brownie; I said, ‘What did you do it for?’ and he said, ‘Because he was trying to shoot me, didn’t you see him?’; and I said ‘No, I did not see anything’; I did not see any weapon in Larimore’s hands when Mr. Steen told him to get out.”

Other testimony on behalf of the state tended to show that there was some feeling between the defendant and the deceased, the outgrowth of the deceased’s attention to the defendant’s wife.

The shooting is admitted by the defendant. Defendant called as a witness in his behalf W. J. Scribner, who testified, in substance:

“I am 42 years old; I live at Bow Legs, Okla.; I know Charles Steen and was acquainted with Leonard Lari-more during his lifetime; I was at Charles Steen’s home on the 15th of April, 1929, when there was a difficulty between Charles Steen and Leonard Larimore; it occurred some time around 8 o’clock; I had been doing some carpenter work for Mr. Steen that afternoon and went with him over to the house; a Mr. Heath came while I was there; I was there when the deceased, Larimore, came in; the first thing I heard Larimore say was something about ‘What the hell are you doing here?’ I suppose this remark was addressed to Mr. Steen; they then talked a little while, but I paid no attention to what was said; then Mr. Steen said to Larimore, ‘Get out quick’; Steen told him that twice; at that time Larimore was standing with one hand in his pocket facing the west in the middle room; after Charles Steen told him the second time to get out he pulled a gun; Steen did not fire until after the deceased pulled his gun out of his pocket; when deceased pulled his gun out of his pocket, Steen grabbed his shotgun and fired; Larimore fell and dropped his gun; at the time Larimore started to pull his gun he was going toward the door of the room Steen was in; after Steen fired and Larimore fell, he came back into the little room and asked me to call the law and the ambulance; I asked him which one to get and where to go, and I heard a noise in the other room and walked to the door, and Larimore or Brownie had raised up on his hunkers and was scooting toward the door, and had a pistol in both hands; I jumped back and Charles Steen asked what was the matter, and I said, ‘Look out, he is going to kill you yet’; about that time the deceased shot; after Larimore fired the shot, Mr. .Steen fired the second shot; deceased fell over and dropped his gun; I called the law and the ambulance; the defendant did not do anything to the deceased after he fired the second shot; if the defendant went up to the door where the deceased was I did not see him.”

The defendant testified in his own behalf, and, in substance, gave the same evidence as did the witness Bill Scribner, and further stated the deceased lived about 50 to 100 yards from his place1—

“I had been to my father’s and when I returned Leonard Larimore was at my place; when I came in he asked me what the hell I was doing there, and I told him it was my place and I thought I had a right to be there; I went back to- the northeast room where my shotgun was leaning against a trunk, possibly ten feet from the door that leads from the northeast room to the main part of the cafe; Bill Scribner told me to watch out for Larimore; I then told Larimore to get out; when I told him to1 get out he turned toward me and started pulling his gun; I saw his gun before I fired. My gun was a twelve-gauge shotgun, and loaded with No-. 4 shot; Lari-more fell when I fired the first shot; after I fired I sat down on the bed; there was only a minute until a shot was fired from his pistol; he was in the other room; I then fired at him again; when he fired he had his gun in both hands, on his hunkers; when I saw him with his gun in both hands, I was afraid of getting killed and I fired.”

This is, in substance, the testimony of the witnesses who1 saw the difficulty There seems to have been a feeling between the defendant and the deceased as shown by the testimony; a day or two before the trouble the deceased drove up to the filling station, accompanied by the wife of the defendant, and in a conversation with the man in charge of the filling station stated he had the defendant’s wife and would have his business soon if he had to kill him.

Several errors have been assigned by the defendant as grounds for reversal of this case. In his briéf the defendant has argued three propositions which he insists are sufficient to reverse his case; the first being,

“The verdict of the jury and judgment of the court is not supported by the evidence; second, misconduct of the county attorney; and, third, misconduct of the court.”

This court will consider the questions argued by the defendant in the order they are presented in the brief. First, that the verdict of the jury and judgment of the court is not supported by the evidence.

Section 1754, C. O. S. 1921, in part, is as follows:

“Homicide is also justifiable when committed by any person in either of the following cases: First. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is.”

It is urged by the defendant that the killing occurred at the defendant’s home. This is true. The record discloses that, where the killing occurred was not only the home of the defendant but also the place where he conducted his business. All the parties agree that the defendant was in his home at the time the trouble occurred; that the defendant and his wife were running a place of business in connection with the home. It is not disputed that the deceased and the defendant had a difficulty there; that deceased used a pistol and the defendant used a shotgun. It is further undisputed that the defendant told the deceased to get out of his house, and that the deceased did not leave, but drew a pistol from his clothing, and defendant shot the deceased and deceased fell; that the defendant was talking with the witness Scribner about calling an ambulance and the officers when a noise was heard and .Scribner advised the defendant to look out; that the deceased had a gun, holding it with both hands,, and defendant again shot the deceased.

The question to be decided is, Was the action of the defendant in firing the shots justified? If so, the defendant should have been acquitted. There are no objections urged by the defendant to the general instructions of the court. The defendant urges that the testimony in this case is insufficient to sustain a conviction. The sufficiency of the evidence is a question for the jury under the proper instructions of the court. The jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses, and, where there is any competent evidence to sustain the verdict and judgment, a conviction will not be reversed although the evidence may be conflicting or different inferences may be drawn from it. The weight and value of the evidence is for the jury, and its verdict will not be disturbed for insufficiency of the evidence. Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Gray v. State, 18 Okla. Cr. 411, 195 Pac. 503; Luther v. State, 18 Okla. Cr. 664, 197 Pac. 533; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The defendant next urges the misconduct of the county attorney in cross-examining the witnesses was such as to prejudice the jury against the defendant and work a miscarriage of justice. An examination of the record shows that the objections to' many of the questions propounded to the defendant’s witnesses by the county attorney were sustained by the court. The defendant urges that, although the court sustained the objections, the court failed to admonish the county attorney or reprimand him, and permitted him to propound questions relating to improper and prejudicial matters before the jury, and forcing the defendant to object. The county attorney in his cross-examination of the witnesses for the defendant asked many questions that were improper, and the court sustained the objections of the defendant to the same. While the questions propounded by the county attorney were improper, we do not think they possess sufficient merit to warrant a reversal of this case.

The third and last proposition argued by the defendant is the misconduct of the court. In his argument he says the conduct of the court was such as would lead the jury to believe that the court was very desirous of a conviction. With this contention we cannot agree. While it is true the record discloses that the court asked many questions, we do not think the action of the court in the trial of this case prejudiced the rights of the defendant. The punishment imposed by the jury clearly shows that the jury, while it found the defendant guilty, believed the minimum punishment was sufficient. The defendant was accorded a fair and impartial trial. There are no errors in the record sufficient to warrant a reversal. The evidence is sufficient to sustain the judgment.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    JOHN W. AMBERCROMBIE v. STATE.
    No. A-8205.
    Oct. 24, 1931.
    (4 Pac. [2d] 1118.)

      C. H. Wyand and B. F. Willett, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Woodward county of the crime of unlawful transportation of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days.

This case is reversed because there is no competent evidence in the record tending to connect the defendant with the commission of the offense; but, on the contrary, the evidence of the state is that the defendant not only did not own and was not driving the automobile in which the liquor was found, but also that he did not own the liquor nor possess it, and had no knowledge that the liquor was in the car or was being transported by Bessie Myers, the driver.

The cause is therefore reversed.


text:
    JOHN GULLEY v. STATE.
    No. A-7984.
    Oct. 24, 1931.
    (4 Pac. [2d] 1118.)
    Mauntel & Spellman, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of second offense of violating the prohibitory liquor laws of the state of Oklahoma, and his punishment fixed at a fine of $500 and imprisonment in the state penitentiary for three years, and appeals.

The record in this case was filed in this court on August 26, 1930; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    BILL SMITH v. STATE.
    No. A-7971.
    Oct. 24, 1931.
    (4 Pac. [2d] 1119.)
    Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred as to the defendant, was indicted jointly with Marvin Winters of the crime of assault with intent to commit rape, was tried separately, convicted, and sentenced, to be confined in the county jail of Carter county for a term of one year and to pay a fine of $500, and appeals.

The record in this case was filed in this court on September 8, 1930; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    CHARLES PASS v. STATE.
    No. A-8199.
    Oct. 24, 1931.
    (4 Pac. [2d] 124.)
    John T. Levergood, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of four months.

The evidence of the state was that the officers had a search warrant and on searching the premises of defendant found a half gallon of whisky in a room on the first floor; that defendant’s stepdaughter fled up stairs on the approach of the officers and they caught her pouring whisky out of a half-gallon jar into the sink; that at the time she began to pour it out the jar was full, but that only a small amount was left when the officers succeeded in taking the whisky container away from her.

Defendant, testifying for himself, admitted that he had something like a quart of whisky, but claimed he had it for his own personal use. He called friends and neighbors who testified that they had never known him to sell whisky, and had never known people to congregate at his place for the purpose of drinking.

In rebuttal, the state called witnesses who testified that they had watched defendant’s place; that crowds did congregate there; that it was a place of public resort; and that its reputation as being a place where intoxicating liquors were kept and sold was bad.

Defendant urges, first, that the trial court erred in permitting the state to prove the reputation of a private residence.

Defendant having first introduced evidence of the reputation and good character of his home, it was competent for the state in rebuttal to prove that defendant’s residence was a place of public resort and that its reputation as being a place where intoxicating liquors were kept and sold was bad.

Defendant urges but one other question: That the judgment and sentence is contrary to law and excessive.

The evidence supports the verdict of the jury, and we cannot say under the facts and circumstances as shown by the record that the punishment is excessive.

For the reasons stated, the cause is affirmed.

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


text:
    ED AGEE v. STATE.
    No. A-7965.
    Oct. 24, 1931.
    (4 Pac. [2d] 132.)
    James A. Embry and J. L. Emerick, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the jury at a fine of $250 and imprisonment in the state penitentiary for one year and one day.

The evidence of the state was that the officers had a search warrant for the southeast quarter of section 6, township 14, range 4, in Lincoln county, together with the buildings and outbuildings upon the premises; that defendant ate and slept in one of the outbuildings and worked for the owner of the premises; that the officers found three quarts of whisky in the outbuilding where defendant ate and slept, and in a lcan-to found thirty gallons of mash concealed in a bin and covered by bran and shorts; that a sample of this mash was analyzed and found to contain 4% per cent, alcohol; that defendant, after being arrested, was searched, and a bottle containing a small amount of whisky found on his person. The state introduced proper records showing a prior legal conviction of the defendant for a violation of the prohibitory liquor law.

Defendant, testifying for himself, admitted that he lived in the place where the liquor was found, but denied that he owned it or had placed it there.

Defendant in his brief says:

“Numerous errors are complained of in the motion for a new trial and in the petition in error but in his brief we will present two propositions both of which are properly presentable under the record:
“1. That the court erred in overruling the defendant’s motion for a new trial, and
“2. That the verdict and judgment are not sustained by sufficient evidence and are contrary to law.”

Defendant filed no motion to suppress the evidence and made no objection to the introduction of the liquor found, except he did object to the introduction of the mash exhibit, for the reason that it was not properly identified.

Defendant argues that the search warrant was not served as required by law.

By failing to object to the introduction of this evidence, defendant waived any irregularity or informality in the service of the search warrant.

The verdict and judgment being sustained by sufficient evidence, it was not error for the trial court to overrule the motion for a new trial.

For the reasons stated, the cause -is affirmed.

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


author: DAVENPORT, P J.

text:
    HERMAN TAYLOR et al. v. STATE.
    No. A-8008.
    May 2, 1931.
    Rehearing Denied Oct. 27, 1931.
    (3 Pac. [2d] 1050.)
    Harris & Lackey and Wallace Wilkinson, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P J.

The plaintiffs in error, hereinafter called the defendant's, were convicted of burglary in the second degree and sentenced to serve the following terms in the state penitentiary: Herman Taylor, two years; Sam Fox, four years, and Joe Fox, five years. The case was tried in May, 1930, and the appeal was lodged in this court October, 1930. No- briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Due to the gravity of the offense, we have carefully examined the record, and the evidence is amply sufficient to sustain the judgment and sentence. Where an appeal is prosecuted to this court, and no brief in support of the petition in error is filed and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and if no fundamental error is apparent and the evidence is sufficient the case will be affirmed.

The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    CLIFTON LOGAN v. STATE.
    No. A-8057.
    Oct. 2, 1931.
    Rehearing Denied Oct. 30, 1931.
    (3 Pac. [2d] 1117.)
    Harris & Lackey, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers with a search warrant visited the premises of the defendant; that this place was a place of public resort; that it was a place where people congregated to drink intoxicating liquor; that the officers found 250 quarts of Choctaw beer; that they found a beer vat in the back yard of the place, with a man making beer, but this man escaped; that there was a high board fence around part of the place which concealed people going there from the road; that several persons, including a police officer from McAlester, were found at the place, drinking beer; that they broke the bottles containing this beer on a rock at the back end of the lot, and that it had the usual smell of beer, and that the bottles, when struck on the rock, exploded with a loud noise. The sheriff qualified by saying that he had been familiar with Choctaw beer since he was a little boy, that he drank some of this beer, and that it was intoxicating.

Defendant’s counsel, cross-examining the sheriff as to his kno wledge of the place as being a place of public resort and a place where intoxicating liquor was sold and drank, brought out the fact that the officers had watched this place and had raided it a number of times, each time finding intoxicating liquor.

The defendant did not take the witness stand, but sought to show by the men who were there drinking that the beer was not intoxicating,

At a recent sitting of this court in Logan v. State, 51 Okla. Or. 448, 3 Pac. (2d) 748, this court affirmed another conviction against this defendant for a like offense. It appears from the record and from the records of this court that the defendant is a persistent and flagrant violator of the law.

An examination of the record discloses that the defendant had a fair trial and that the evidence supports the verdict of the jury.

The cause is therefore affirmed.

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


text:
    NORMAN ORME v. STATE.
    No. A-8160.
    Oct. 2, 1931.
    Rehearing Denied Oct. 30, 1931.
    (4 Pac. [2d] 125.)
    Morris & Wilhite, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county of the crime of unlawful possession of a still, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for 30 days.

The evidence of the state was that the officers had searched the place east of defendant’s at about 2 or 3 o’clock in the afternoon; that they left their car parked south of defendant’s home; that when they came back they could smell mash from where their car was parked; that they crossed over the fence and about 100 yards in defendant’s field found a still set up; that this still was, located about 150 yards from the curtilage of defendant’s home; that the still consisted of a 150 or 200 gallon copper pot, two concrete vats, 3,000 gallons of mash, and a doubler and condenser, all complete and set up for operation out in the woods south of his house; that this still was capable of being used for the manufacture of whisky; that the ground was freshly trampled around the still and coals and ashes smouldering there; that there was a well there, about 25 feet deep; that there was a small amount of whisky in the doubler; that about 50 yards from the still and on the same creek there was another still site similar to the one where the still was found; that when the officers found the still they had no search warrant; that they went back to town and went to the county attorney and got a search warrant to search the house and premises for whisky, but found nothing in addition to the still.

Defendant contends first that the search and seizure was illegal for the reason that there was more than one house on these premises, and the warrant was insufficient to authorize a search.

This court in a number of cases has held that no search warrant was necessary to search woodlands, pastures, or fields lying outside of the curtilage. Penney v. State, 35 Okla. Cr. 151, 249 Pac. 167; Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661; Perry v. State, 42 Okla. Cr. 92, 274 Pac. 686.

The record discloses that the officers found no liquor or other paraphernalia under the search warrant which they procured to search the house and buildings, after they had discovered the still. The fact that the officers procured a search warrant to enable them to search the house and buildings would have nothing to do with the admissibility of the evidence found prior thereto, where no search warrant was needed. It was not error, therefore, for the trial court to admit the evidence of the officers as to the still.

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

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


text:
    FRANK CERDAY v. STATE.
    No. A-8158.
    Oct. 30, 1931.
    (5 Pac. [2d] 169.)
    Stevens & Cline, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the court at a fine of $50 and imprisonment in the state penitentiary for one year and six months.

The record in this case discloses that on the 16th day of November, 1929, the county attorney filed a complaint before the county judge of Cotton county, attempting to charge the defendant with a second and subsequent violation of the prohibitory liquor laws; a preliminary hearing was had, and defendant bound over to the district court; that thereafter, and on the 7th day of February, 1980, the county attorney filed an information in the district court of Cotton county, attempting tO' charge the defendant with said second and subsequent violation of the prohibitory liquor laws; that defendant filed no demurrer to the information; that thereafter, and on the 4th day of March, 1930, the cause came on for trial in the district court; that a jury was duly impaneled; that the state’s witnesses were sworn and one called to the stand to testify; that thereupon the defendant objected to the introduction of any evidence, for the reason that the information failed to charge an offense against the defendant under the laws of the state; that thereupon the trial judge found that the information did not state facts sufficient to charge the defendant with a crime, and sustained the demurrer and discharged the jury; that the trial court made no1 order directing the county attorney to file an amended information, or proceed any further in the case; that thereafter, and on the 18th day of March, 1930, the county attorney, without leave of court, filed an amended information against the defendant; that on the 8th day of November,1930, defendant was arraigned upon this amended information and refused to plead, and thereupon the court directed the clerk to enter a plea of not guilty; that on the 10th day of November, 1930, the case was called for trial and a jury impaneled and sworn; that thereupon the' defendant objected to the introduction of any evidence, because the amended information upon which he was about to be brought to trial was not ordered filed by the judge of the court. This objection was overruled, and defendant forced to trial, which resulted in the conviction and punishment heretofore stated.

The record in this case presents two questions:

First. Where the court sustains a demurrer to the information, may the county attorney file an amended information without an order from the court?

Second. May the question properly be raised by an objection to the introduction of evidence?

Section 2612, C. O. S. 1921, provides:

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

Section 2613, C. O. S. 1921, provides:

“If the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.”

In State v. Vaughn, 15 Okla. Cr. 187, 175 Pac. 731, this court, speaking through Judge Matson, said:

“Section 5795, Revised Laws 1910, construed, and held, where the trial court sustains a demurrer to an information in a criminal ease, and fails to order or direct that a new information be filed charging the same offense, the judgment sustaining the demurrer to the information is final, and the accused may not be subjected to another prosecution for the same offense.”

In State v. Walton, 30 Okla. Or. 416, 236 Pac. 629, this court said:

“Under Code of Criminal Procedure, section 2612, C. S. 1921, if a demurrer to the indictment or information is sustained, the judgment is final, and such judgment is a bar to another prosecution for the same offense, unless the court at the time directs the case to be resubmitted or that a new information be filed, and such direction must be by matter of record.
“A judgment sustaining a demurrer under the statute is as far-reaching and conclusive as to the defendant’s liability for the crime charged as though it had been rendered upon a verdict of not guilty, where the court does not order a resubmission of the case or direct that a new information be filed.
“The judgment of the trial court sustaining the demurrer to an information, unaccompanied by contemporaneous order or direction to file a new information, is a bar to further prosecution for the same offense.”

To the same effect are: State v. Shafer, 15 Okla. Cr. 610, 179 Pac. 782; State v. Wheatley, 20 Okla. Cr. 28, 200 Pac. 1004; State v. Robertson, 28 Okla. Cr. 234, 230 Pac. 932; State v. Graham, 38 Okla. Cr. 325, 261 Pac. 230.

Under these authorities, the county attorney was without authority to file an amended information without an order of court, and the filing of such amended information gave the district court no jurisdiction to' hear and determine the case.

The question raised next is: Can the defendant raise this question by an objection to the introduction of evidence after the jury has been impaneled and the state placed its first witness upon the stand?

Section 2616, C. O. S. 1921, provides:

“When the objections mentioned in section 5791 (2608) appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.”

In Huckaby v. State, 22 Okla. Cr. 376, 211 Pac. 525, 527, this court said:

“An objection to the introduction of evidence on the ground that the information does not state facts sufficient to constitute a crime is sufficient to challenge the sufficiency of the averments of the information.”

To the same effect are: Gourley v. State, 8 Okla. Or. 598, 129 Pac. 684; Stone v. State, 12 Okla. Or. 313, 155 Pac. 701; Roebuck v. State, 14 Okla. Or. 241, 170 Pac. 277.

Under the authorities above cited, an objection to the introduction of any evidence is sufficient, where the information wholly fails to state an offense.

The trial court should have directed the county attorney to file an amended information. But, since the information was filed without an order of court and the defendant properly raised the question, it was reversible error for the trial court to overrule the same. Because of such error, the cause is reversed, with directions to dismiss the same.

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


text:
    Ex parte BENNIE GILBERT.
    No. A-8197.
    Oct. 30, 1931.
    (4 Pac. [2d] 695.)
    J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

This is an original petition in habeas corpus of Bennie Gilbert asking to be released from custody of the warden of the state penitentiary, on the ground that he is unlawfully restrained of his liberty by said warden.

The facts set forth in plaintiff’s petition, in substance, are as follows: On the 17th day of February, 1923, petitioner was sentenced to serve a ten-year term of imprisonment to begin at and from the 17th day of February, 1923. The petitioner was convicted on another charge, and on the 23d day of February, 1923, petitioner was sentenced to the penitentiary to serve a term of two years, the imprisonment to begin at and from the 23d day of February, 1923. That on the 2d day of March, 1923, petitioner was sentenced to the penitentiary for a term of seven years; term of imprisonment to begin at and from the 2d day of March, 1923.

Petitioner further alleges that he was committed to the penitentiary on the 2d day of March, 1923, to serve the sentences imposed upon him by the court, and that he has served all the time specified for the aforesaid sentences, and the said warden refuses to release him, and that he is now imprisoned contrary to the order of the aforesaid courts and contrary to law.

The warden of the penitentiary has filed a response in which he states and shows that the petitioner was committed to the penitentiary on the 3d day of March, 1923, as No. 12898, upon a judgment and sentence entered on the 17th day of February, 1923, which sentence was for a term of ten years, and admits that the petitioner was sentenced on the 2d day of March, 1923, to serve a term of seven years in the penitentiary and on the 23d day of February was sentenced to serve a term of two years in the penitentiary. Respondent further states that it is nowhere stated in said judgment and sentence, or either of them, that the term of confinement therein provided shall run concurrently, and that he is holding the petitioner under and by virtue of the judgment and sentence of the court made and entered on the 23d day of February, 1923, and denies he is illegally restraining petitioner.

The only question to be determined in this case is the question, Does the fact that in each of the three sentences the court in its judgment fixed the date when the term of imprisonment begins make these judgments run concurrently, in the absence of any order of the court directing that the judgments and sentences run concurrently? Petitioner contends that, for the reason that in each of the three sentences the date the sentence should begin makes his sentences rnn concurrently, and having served the ten-year sentence, he has served the time for all the sentences imposed upon him, citing, in support of his contention, Ex parte Howard, 2 Okla. Cr. 563, 103 Pac. 663; Ex parte McClure, 6 Okla. Cr. 241, 118 Pac. 591; Ex parte Bert Roller, 3 Okla. Cr. 384, 106 Pac. 548; Ex parte Ray, 18 Okla. Cr. 167, 193 Pac. 635; Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284.

The respondent in his return insists that it does not follow as a matter of law that, because the trial court in imposing the sentence upon the petitioner fixed the date that the term of imprisonment should begin, the sentences run concurrently, and insists that on the contrary they run consecutively.

It has been held by this court that the time fixed for the execution of a sentence or for the commencement of its execution is not an essential element of the judgment and sentence, and that two separate terms and confinement in the penitentiary do not run concurrently unless the judgment and sentence specifically so state. In neither of the three cases is there an order of the court specifically stating that the judgments run concurrently.

In the case of Ex parte Eldridge, 3 Okla. Or. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967, it is held:

“The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.”

In Ex parte Smith, 33 Okla. Or. 175, 242 Pac. 284, this court held:

“The time fixed for the execution of a sentence, or the commencement of its execution, is not one of its essential elements, and, where the penalty is imprisonment, the sentence may be satisfied only by the suffering of the actual imprisonment imposed. * * *
“Where there are a series of convictions and judgments thereon, the accused should be incarcerated upon the first conviction for the period of imprisonment therein named, followed by confinement for the fine and costs named, in the event the same are not paid; at the end of that period of confinement, the imprisonment named in the judgment upon the second conviction and imprisonment for the fine and costs therein, would begin and terminate in like manner, and so on.”

In Ex parte Bell, 34 Okla. Cr. 354, 246 Pac. 893, the court said:

“Under sections 2303 and 2774, Gomp. St. 1921, where a defendant is convicted of two or more crimes before sentence has been pronounced for either, if the judgment and sentence does not designate when the second or other subsequent conviction shall commence, or if it does so designate, it shall commence at the termination of the first term of imprisonment, or at the termination of the other or subsequent terms, as the case may be. If the judgment and sentence for the second or subsequent conviction shall specifically designate that it run concurrently with the judgment and sentence of the first or prior conviction, it shall so run concurrently.” Ex parte Strader, 37 Okla. Cr. 285, 257 Pac. 1112; Ex parte Hudson, 44 Okla. Cr. 14, 279 Pac. 711; Ex parte Halbert, 45 Okla. Cr. 167, 282 Pac. 478; Ex parte White, 50 Okla. Cr. 163, 296 Pac. 756.

Following the reasoning in the above-cited cases, it is clear that the time designated in the judgment and sentence for the commencement of the commitment is not an essential part of the sentence; that, if the judgment and sentence do not specifically provide that the second or subsequent conviction shall run concurrently with the sentence of the first or prior conviction, then they shall run consecutively. This is true even though the judgment and sentence designate a certain date at which the commitment shall commence.

In this case the petitioner was sentenced to serve a period of ten years, two years, and seven years, respectively. The sentence may be satisfied only by serving the actual terms of imprisonment imposed.

The writ is denied.

EDWARDS and CHAPPELL, JJ., concur.