text:
    ELMER LAND v. STATE.
    No. A-9983.
    April 29, 1942.
    (125 P. 2d 779.)

      Ward, Justus & Ward, of Tulsa, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, P. J.

Defendant, Elmer Land, was charged in the district court of Tulsa county with the crime of grand larceny, was tried, convicted and sentenced to serve a term of two years in the penitentiary, and has appealed.

The charge in this case was that the defendant, Elmer Land, “did take, steal, and carry away” the sum of $4,600, the personal property of Lena Clark Lucas, on August 28, 1935, in Tulsa county.

It is first contended by defendant that the evidence is not sufficient to sustain the verdict. This contention is based upon the fact that the evidence of the state does not show that the money was stolen, if stolen at all, from the said Lena Clark Lucas, as alleged in the information, but that the money was taken to the home of the wife of defendant, Mrs. Myrtle Land, and that she had the same in her possession and control and that for that reason there was a variance between the allegations in the information and the evidence of the state.

The evidence does not bear out this contention. The prosecuting witness was an old lady between 70 and 80 years of age. Her evidence was not as clear as it might have been. She could not remember dates and often became confused, but her testimony was substantially that she had been in the real estate business for many years and had been saving her money. She sometimes kept it on deposit in the National Bank of Commerce and sometimes kept it in a safety deposit box. She testified that sometime in the spring of 1935 she went to the bank and either drew therefrom the sum of $5,000 or she took it from a safety deposit box. That she signed a ticket for it and thought she took it from the safety deposit box. She took this money to her home and kept it hid, paid bills, and was intending to use it to pay other bills and to buy some property that was going to be sold. She was well acquainted with Mrs. Myrtle Land, the wife of defendant, and Mrs. Land asked her to' bring the money to her house and she would help her hide it. She testified that she took $4,600, one $1,000 bill and four $500 bills, and sixteen $100 bills, to Mrs. Land’s home, and there in the presence of Mrs. Land she hid it in the stove and told Mrs. Land not to tell her husband where it was. That she and Mrs. Land were going to pay some bills which she owed. That the defendant was not present and did not see or know the money was hid. That she trusted both the defendant and Mrs. Land, and this was the reason she left her money there. That she returned to the Land home either the next morning or a few days thereafter. ¡She was confused as to' the exact date, but knew it was in the summer of 1935. When she returned, the Lands were gone from their home. Their automobile was in the garage, and she went to the stove where she hid her money and it was gone. There is nothing in the record to show that she saw either Mr. or Mrs. Land after this date until his return to Tulsa three years later. She went to the county attorney’s office and swore out a warrant for defendant.

If this was all the testimony offered by the state in this case, the court should have sustained the motion for a directed verdict, but other evidence was introduced by the state.

W. W. Day testified that he conducted a restaurant and that he had known defendant for a number of years. That on the day he quit work at the Ferguson Baking Company he came to his place of business, in August,, 1935, and this was the last time that he saw defendant until at the preliminary trial in 1939. That when defendant came to his place of business in August, 1935, he heard defendant talking to someone, and he said:

“The Witness: It was in the evening at supper;— at dinner time and he came in to the counter and there were some others there then, I don’t know just who it was, but I overheard the conversation about some lady letting him have some money to keep — he or he and his wife, I don’t remember which it was — I couldn’t quote his exact words. Q. (By Mr. Henneberry) Did you see him any more after he was in your restaurant and you overheard him say that? A. No, sir, I didn’t. Q. You didn’t see him any more until the preliminary trial? A. No, sir.”

Claude Colley testified that he Avas in the cafe business in Tulsa and was acquainted with defendant. That he visited his place of business during 1935. He did not know the exact time, but recalled that police officers came to his place the next morning looking for defendant. He testified that defendant came to his place of business and had a cup of coffee. He said:

“A. Well, then he pulled his money out and he had a roll of money about so big, and he asked did we have change for this. Q: What kind of a bill did he flash? A. It was a thousand dollar bill. Mr. Ward: We move to strike the word flash, he didn’t say he flashed anything. The Court: Well, you might object to the word flash. Q. (By Mr. Henneberry) All right, what kind of a bill did he show? A. Well, there was a bill on top, it had three naughts on it, and it wafe the first one I had ever seen. Q. And how big around was that? A. About so big around. Q. Did you have any conversation with him about where he got the bill? A. No, nothing mentioned about that. Q. Did you cash it? A. No, sir. Q. Could you see the denomination of any of the other bills that he had? A. Well, I seen some one hundred dollar bills, looked like. Q. You informed the officers of this when they asked you about what had happened? A. Yes.”

Felix Altaffer testified that he was a pólice officer and that he went to the place of business of witness Claude Colley on August 29, 1935, and he testified that this was the day that the prosecuting witness had made complaint to the police of having lost her money. He further testified to efforts on the part of the police to locate the defendant after that time.

A. M. Smith testified that he was a police officer and that he arrested defendant at the Ferguson Baking Company in May, 1939, when he returned to Tulsa. He testified that at the time of his arrest defendant said:

“Q. What else, if anything did he say to you? A. And he said he knew that a warrant had been issued and that he tried to get Mr. Ferguson to come down to the county attorney’s office with him and get it fixed up, but Mr. Ferguson told him to> just lay low and they wouldn’t even know he was here.”

Frank W. Grammer testified that he worked for the Ferguson Baking Company at the time and after the defendant left their employment in August, 1935, that he did not know the exact date, but it was the last week in August. He said that he had a conversation with defendant on the date he left. His testimony was as follows:

“Q. I mean the last day he worked, did he have any conversation with you? A. Yes. Q. Tell the jury what he said to you? A. He told me that Mrs. Lucas Clark left some money with him and we were discussing just what I would do- in my case. A. Well, we were just talking about what I would do if that much money was left in my care. Q. Did he tell you how much was left? A. ;$4,600. Q. That is what he told you was the amount? A. Yes. Q. Tell the jury what conversation you had besides that. A. Well, we kidded along about it and I told him I thought he was lying, and he asked me would I believe it if I would see the money, and I told him I didn’t know what I would believe, and he went on upstairs finally and changed clothes and came back down and showed me some money and turned around to me as he started out and told me if he didn’t show up the next morning I could have his rolling pin. Q. Did he show up the next morning? A. No.”

It is unnecessary to' give a lengthy quotation of the evidence of defendant. He made a complete defense, and if the jury had believed his testimony and the evidence of those who* corroborated him, they would have undoubtedly returned a verdict of not guilty. We unhesitatingly state that if there was no other evidence in the record than that of the prosecuting witness, and her evidence had not been corroborated by direct and circumstantial evidence, taking into consideration all of the evidence introduced in the case, we would not hestitate to reverse the same. The case of Vasco Goings v. State, 74 Okla. Cr. 161, 124 P. 2d 280, well illustrates this point. In that case there was absolutely no evidence to corroborate the evidence of the prosecuting witness. Here there is the testimony of numerous witnesses who corroborate the evidence of the prosecuting witness; and the jury who heard these witnesses, together with the testimony of the defendant and those who corroborate his evidence, were in a better position to judge the weight and credibility of those witnesses than is an appellate court. The cross-examination of the defendant brought out many facts which the jury had a right to consider in view of the statements made by the defendant. It is not for this court to say what they would have done had they been members of the jury, but under the often announced rule that where there is a conflict in the evidence and the evidence of the state is sufficient, the verdict of the jury and the judgment and sentence will not be set aside by this court because of such conflict. It is only when the evidence is insufficient to sustain the judgment and sentence or where the evidence so clearly preponderates in favor of the defendant as to suggest the probability that the verdict was the result of misapprehension or partiality, that the case will be reversed. The facts in this case do not justify such finding.

The evidence does not bear out the contention of defendant that there was a variance between the facts alleged in the information and the evidence introduced. The prosecuting witness testified that she herself placed the money in the stove to hide, and that it was gone when she returned. While defendant’s wife was present at the time, the title to the property was clearly in the prosecuting witness. This is well illustrated by the case of Ramey v. State, 69 Okla. Cr. 257, 101 P. 2d 856, cited by defendant, where the property belonged to Chester Perkins, but was in the possession of W. H. Cooper, in whose pasture the property was located at the time of the theft. The information alleged the theft from Chester Perkins, the real owner of the property, and this allegation was upheld.

See, also, Alexander v. State, 66 Okla. Cr. 5, 89 P. 2d 332.

The contention that the corpus delicti was not proven cannot be upheld. It has often been announced by this court that the corpus delicti may be proven by circumstantial evidence as well as by direct testimony, and the evidence here satisfies the rule. Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Capshaw v. State, 69 Okla. Cr. 440, 104 P. 2d 282.

The contention that the only evidence of corroboration of the testimony of the prosecuting witness consists in the extrajudicial confession of the defendant is not supported by the record. The evidence of the witness who saw defendant in the possession of a thousand-dollar bill and other bills of large denomination being, of the exact kind lost by the prosecuting witness and at the time just after defendant quit the employment of the Ferguson Baking Company without informing them that he had intended to quit and his leaving the city of Tulsa and remaining away for a period of three years, together with other circumstances it is unnecessary to here relate, were facts to be considered by the jury in arriving at their verdict in this case.

The cases cited by defendant to sustain the propositions above referred to are: Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765; Lake v. State, 59 Okla. Cr. 280, 57 P. 2d 1199; Edwards v. State, 58 Okla. Cr. 15, 48 P. 2d 1087; Buckmiller v. State, 55 Okla. Cr. 222, 28 P. 2d 597. The cases cited by the state are: Alexander v. State, 66 Okla. Cr. 5, 89 P. 2d 332; Beam v. State, 66 Okla. Cr. 14, 89 P. 2d 372; Ramey v. State, 69 Okla. Cr. 257, 101 P. 2d 856; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191; Henson v. State, 69 Okla. Cr. 273, 101 P. 2d 1060; Herren v. State, 69 Okla. Cr. 57, 97 P. 2d 96, 100 P. 2d 286.

Defendant’s next assignment of error is that the court erred in giving instruction No. 8, which is as follows :

“You are further instructed that if you find from the evidence that the money was not taken from the place where it was being kept by the defendant himself, but that the defendant knew that the money was taken from the place of concealment, and obtained possession of the money knowing the source from which it came and with the felonious intent to deprive the owner thereof permanently, then such taking would amount to larceny.”

This instruction should be considered in the light of the statute on principals and accessories, Oklahoma Statutes 1931, section 2902, O. S. A., Okla. Stats. 1941, title 22, sec. 432, which is as follows:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.”

Also instruction No. 9, which is upon the question of aiding and abetting, and Old ahorna Statutes 1931, sec. 1808, O. S. A. (1941), Title 21, sec. 172.

Under these statutes, which were covered by the instructions, to the effect that if the wife of defendant took this money from the place where it was hidden in the stove and the defendant accepted it from her knowing that the money had been taken from the place of concealment, and that it was the property of the prosecuting witness, and lie took it for the purpose and with the felonious intent to permanently deprive the owner thereof, he would be guilty of larceny. In view of the statutes above cited and the other instructions of the court, we do not find that the court erred in giving instruction No. 8 above quoted. The facts justified the giving of this instruction.

The next assignment of error is that the court erred in giving instruction No. 9. This instruction covered the statute with reference to one who aids or' abets in the commission of a crime. It has heretofore been referred to, and we do not find the court erred in giving this instruction based upon this statute as applied to the facts in this case.

It is next contended that the court erred in giving instruction No. 11. This was an instruction on circumstantial evidence. It is not contended that an instruction on circumstantial evidence should not have been given under the facts, but it is contended that because the court instructed the jury that the state “relied for a conviction in part on circumstantial evidence” was an assumption on the part of the trial court that there was direct evidence against defendant, when in truth and in fact there was no direct evidence, and that this charge was therefore upon the weight of the evidence. From the facts heretofore stated it will readily be observed that the evidence in this case was both direct and circumstantial. The court was amply justified under the facts in giving this instruction.

Finding no error in the record which justifies a reversal' of this case, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    HUBERT PATTY v. STATE.
    No. A-9921.
    April 29, 1942.
    (125 P. 2d 784.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and :Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Hubert Patty, was charged in the county court of Stephens county along with one Ira Morgan with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve five months in the county jail and pay a fine of $500 and costs, from which judgment and sentence an appeal has been taken to this court.

It is first contended that the trial court erred in denying the request of the defendant for a severance. The record discloses that at the beginning of the trial, before the jury was impaneled, counsel for defendant dictated into the record his motion for a severance, which motion was overruled and exception saved.

It is conceded by counsel for defendant that under the settled law of this state the granting or refusal of an application for a severance in a misdemeanor case is a matter within the sound discretion of the trial court, but it is insisted that the court’s refusal in this instance constituted an abuse of discretion.

In Wheat v. State, 34 Okla. Cr. 82, 244 P. 821, the rule with reference to application for severance in misdemeanor cases is stated as follows:

“Under Criminal Procedure (section 3065, O. S. 1931, O. S. 1941, tit. 22, § 838), when two or more defendants are jointly charged with a misdemeanor, the granting or refusal of a severance rests in the discretion of the court. The exercise of such discretion is reviewable, but to be reviewed the case-made or bill of exceptions must show an application for severance, setting out sufficient grounds therefor and supported by affidavits or oral testimony, and the application must be made before the impaneling of the jury is begun.”

No affidavit nor oral testimony was offered and oral motion of counsel for defendant does not comply with the above stated rule; therefore, the court did not err in denying the request for a severance.

It is further contended that the court erred in overruling defendant’s motion to suppress the evidence of the state derived through the search of defendant’s automobile, and the third assignment of error is that the evidence is insufficient to sustain a conviction.

These two assignments of error will be considered together. The proof of the state established that information had been given to the officers of Stephens county that the defendant, Hubert Patty, was engaged in the liquor business. Two highway patrolmen, on the afternoon of March 12, 1940, being suspicious of the defendant Patty, followed him on the road leading out of the town of Comanche, out into the country, and saw the defendant Patty stop at the home of the defendant Ira Morgan. The patrolmen stopped their car and waited a few minutes until Patty left Morgan’s house. The highway patrolmen followed him some distance before overtaking, and stopping him. The testimony of the highway patrolmen as to what occurred at that point is as follows:

“Q. (By Mr. Marmaduke, County Attorney) Did you follow him? A. (By Ty Cobb, Highway Patrolman) Yes, sir. Q. How far did you follow him? A. Approximately a mile. Q. Did you finally overtake him? A. Yes, sir, after he turned south off the highway. Q. Just tell the court what occurred after you overtook Mr. Patty and had him stop his car? A. Mr. Patty stopped something like a quarter of a mile south of the highway. Mr. Neal got out, Patrolman Neal got out and went up to the right hand side of the car, I didn’t hear the conversation Mr. Patty and Mr. Neal had. Mr. Patty got out. I asked him to open the hack end of his car and he opened it for me. I didn’t touch the car. Other than that I don’t know what their conversation was. Q. In other words, the present conversation was between Mr. Neal and Mr. Patty? A. Yes, sir. Q. Was that the only conversation you had with Mr. Patty? A. Yes, sir, at that time. Q. Did you find anything in the back end of the car? A. No, sir. Q. Was anything found there in the car by Mr. Neal? A. Yes, sir, he found some whisky in the car. Q. You know where the whisky was? A. One pint in the glove compartment and a package was under the seat or on the floor. Q. (By Mr. Sullivan, Attorney for Defendant) Mr. Cobb, did you officers have a search warrant for the person of the defendant Patty? A. No. Q. (By Mr. Marmaduke) Now this whisky that was in the front part of the car was that in plain sight? A. The whisky was on the front under the driver’s seat. I didn’t see it. Mr. Neal got it. " * * Q. (By Mr. Sullivan) When you officers drove up there, did you arrest him? A. No, sir. Q. Did you see any whisky before you stopped there? A. No, sir. Q. Did you when you went around the car, when you opened up the back end did you see any? A. No. Q. You never saw any whisky at all? A. I saw the pint Mr. Neal got out of the glove compartment. Q. Didn’t you see it before then? A. I saw him get it. Q. Did you see the whisky before he opened the glove compartment and took it out? A. No, sir. Q. Did you see any whisky any place else before they took it out of the car? A. No, sir.”

The other highway patrolman testified as follows-:

“Q. (By Mr. Sullivan, Attorney for Defendant) Was he driving a coupe automobile? A. Yes, sir. Q. Was the glasses up? A. The right glass wasn’t up. The left could have been. Q. You sure about that? A. Yes, sir. Q. When you stopped him there you got out of the car, walked down and did you open the door of his car? A. No-, sir, he didn’t open the door. Q. I said, ‘Did you open the door of his car’? A. I opened the left door. I don’t believe I opened the right door. Q. You opened the left door of the car? A. Yes, sir. * * * Q. Didn’t you first open the hack end of his car up? A. No, sir, Cobb had him to- open the back end. Q. The other officer asked him to open the back end of his car? A. He consented to-. Q. Did he say open the back end up? A. No-, sir. He asked him to- open the back end and he did. Q. Up until the time you stopped him you didn’t see any whisky, did-you? A. No-, sir. Q. He hadn’t violated any law in your presence, had he? A. No-, sir. Q. Yo-u officers drove up and asked him if he had any whisky and he told you he had some in the glove compartment. You hadn’t seen any up until you asked him, had yo-u? A. No, sir. Q. You hadn’t seen any whisky in the car at the time you first asked him if he had any, had you? A. No, sir. Q. And when he told you he had a pint in the glove compartment you opened that up, didn’t yo-u? A. No-, sir. Q. You had a pistol on you at that time, didn’t yo-u? A. Yes, sir. Q. Yo-u had your uniform on, didn’t you? A. Yes, sir. Q. Didn’t you tell him you was an officer? A. No, sir. Q. He could see that, couldn’t he? A. I presume so. Q. Both of you had your uniforms on? A. Yes, sir. Q. And then after you opened the car and opened the glove compartment you saw a package on the floor? A. No, sir. Q. When did you see the package? A. When I walked on the right I was standing, facing his car and could see this package under his feet and walked around and got it out. Q. What could you see in .that package? A. It lay there and looked like pints of whisky. Q. Was it in a sack or paper? A. It was wrapping paper. Q. Wrapping paper? A. Yes, sir. Q. You couldn’t see inside of the package? A. No. Q. And yo-u thought it was whisky? A. Yes, sir. Q. And that is the reason you took it and opened it? A. I opened it after I got out. Q. He didn’t consent to- your taking it, did he? A. He didn’t object to it. Q. I know he didn’t object. You had your pistol on too, didn’t you? A. Yes, sir. Q. He never did tell you to take it, did he? A. No. Q. And he never did tell you to open the car pocket door, did he? A. No, sir. Q. And then you arrested him after that, didn’t you? A. Yes, sir, that’s right.”

After the highway patrolmen had arrested the defendant Patty, they took him to the town of Comanche and turned him over to officers there and gave the officers information as to what had transpired. That night four of the officers of Comanche county, armed with a search warrant, proceeded to the home of Ira Morgan, made a search of his premises and found in a cache in the house 90 pints of whisky. Two> automobile license tags were found in the cache with the liquor. The proof showed that one of these tags was issued by the county assessor at Wichita Palls, Tex., in the name of the daughter of the defendant Patty for the automobile which Patty was driving at the time he was arrested. Several of the pints of whisky found at Morgan’s home were of the same brand as the six pints of whisky found in the automobile which was being driven by Patty.

The defendant was not charged with possession of the six pints of whisky which were found in his automobile, but is charged solely with the possession, jointly,' with Ira Morgan, of the 90 pints found at Morgan’s house.

The defendant Ira. Morgan testified that the whisky was his and that Hubert Patty had no interest in it. The defendant Patty did not testify. The jury gave Morgan the minimum punishment of 30 days in the county jail and a fine of $50, and no appeal was taken by Morgan from that verdict.

If we were to assume the validity of the search of defendant’s automobile and the admissibility of all the evidence offered by the state, it is doubtful if this conviction could be sustained. The proof of the state showed some very suspicious circumstances, but hardly enough to prove the defendant’s guilt beyond a reasonable doubt.

It is our opinion that the search of defendant’s automobile by the highway patrolmen was an unreasonable and unlawful search and that the evidence obtained by reason of this search was inadmissible against the defendant. This court has held in a great number of cases that the search of an automobile without a search warrant and not as an incident of a legal arrest, but upon a mere suspicion of the commission of a misdemeanor, is a violation of article 2, sec. 30, of the state Constitution, and that the evidence obtained by such unlawful search is inadmissible against the defendant, Whitford v. State, 35 Okla, Cr. 22, 247 P. 424; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623; Mosier v. State, 59 Okla. Cr. 106, 56 P. 2d 908; Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219; Bush v. ¡State, 64 Okla. Cr. 161, 77 P. 2d 1184; Ketcham v. State, 63 Okla. Cr. 428, 75 P. 2d 1159; Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, 434.

In the case of Hoppes v. State, supra, it is stated:

“Manual custody or restraint is not essential to the effectuation of an arrest, if the person claiming to have been arrested submits to a manifestation or claim of authority to malte the arrest, and an expression of intent to execute such authority.
“An unlawful arrest may be effected without manual seizure or touching of the subject of the arrest, such words and conduct by a known officer as given reasonable ground for belief on the part of the subject that the officer has present intention to make the arrest, and submission on the part of the subject in good faith, and under the belief that she has been arrested or will be arrested immediately, is sufficient.
“Search implies an invasion and quest, with some sort of force, either actual or constructive.
“A ‘search,’ within constitutional immunity from unreasonable search and seizure, implies a quest by an officer of the law acting on the things themselves, which quest may be secret, intrusive, or accomplished by force.
“The search of defendant’s automobile without a warrant of arrest, or search warrant, or knowledge of the officers that it contained intoxicating liquor, following her unlawful arrest, held to be an unlawful and unreasonable search, requiring exclusion of evidence obtained thereon in prosecution of defendant for unlawfully transporting intoxicating liquor.”

In that case the facts were more favorable to the prosecution than they are in the instant case, as the officers had a. search warrant for the premises of the defendant Hoppes, but did not have a search warrant for the automobile which she was driving. The officers had been to the defendant’s place of business, found no liquor, and had stopped at a filling, station nearby when the defendant Hoppes came by in her automobile. The officers started following the defendant’s car and stopped her after she had driven several blocks. A search of the car disclosed a quantity of liquor. In the body of the opinion by Judge Doyle, it is stated:

“Counsel for the state in their brief argue that it makes no difference whether an attempt to search began or a search began before the defendant’s car was stopped, because when the officers went to the side of the car before any actual search, or before any arrest was made, the defendant told deputy sheriff, Porter, she had a load of liquor and was trying to get away with it, there had been no arrest up to that time. And if the officers had acted illegally in pursuing her, then the illegal acts of the officers may be separated from their legal acts, and they had the right, after being informed by the defendant that the offense was being committed by the defendant, to look into the car and see the whisky, and arrested the defendant.
“It is also urged that the statement of the defendant was equivalent to the officers seeing, the offense committed in their presence; therefore it makes no difference whether under the theory of the law the search had been begun before the officers stopped the defendant’s car.
“With this, contention we cannot agree. In our opinion it is immaterial whether or not any verbal admission was made by the defendant following her arrest, if in fact the defendant was not committing an offense in the presence of the officers before she Avas arrested. If the arrest was unlawful any verbal admission, if any, made by the defendant folloAving such arrest, was incompetent and inadmissible on a motion to suppress the evidence.”

To sustain the contention of the state herein would be to overthrow a long line of decisions hereinabove cited and which have been uniformly followed by this court in cases where the facts are similar to those herein.

The testimony of the officers herein is to the effect that they suspicioned that the defendant was transporting intoxicating liquor in his automobile and they followed him for the purpose of overtaking, stopping and searching his automobile for intoxicating liquor. They stopped the defendant’s car and got out of their car to- search the defendant’s car. There is a dispute in the testimony as to-whether the defendant said he had part of a pint in the glove compartment, but under the other undisputed facts, we think it is immaterial whether this statement was made by the defendant.

With the evidence obtained by this unlawful search eliminated, there is not sufficient evidence to connect the defendant with the possession of the 90 pints of liquor found in Morgan’s house. With this conclusion established, it becomes unnecessary for us to discuss the various other assignments of error presented by counsel for defendant.

For the reasons hereinabove given, the judgment of the county court of Stephens county is reversed and the case is remanded with instructions to dismiss the action against the defendant, Hubert Patty.

BAREFOOT, P. J., and DOYLE, J., concur.


author: BAREFOOT, P. J.

text:
    C. A. (DON) PEELER v. STATE.
    No. A-10129.
    May 6, 1942.
    (125 P. 2d 1007.)
    W. C. Peters, of Tulsa, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, P. J.

The' defendant, C. A. (Don) Peeler, was charged in the district court of Tulsa county, with the crime of burglary in the second degree, was tried, convicted and sentenced to serve four years in the state penitentiary at McAlester, and has appealed.

Defendant being unable to mate bond pending this appeal, is now confined in the state penitentiary at Mc-Alester and for this reason his case has been advanced.

Numerous assignments of error have been made, but from an examination of the record it is unnecessary to consider but one, which is that the evidence offered by the state is insufficient to sustain the judgment and sentence.

The evidence relied upon by the state for a conviction of the defendant was wholly circumstantial. It is fundamental that one may be convicted upon circumstantial evidence alone, but the true rule as has often been announced by this court is that where circumstantial evidence is relied upon for conviction, the circumstances proved must not only be consistent with each other, but consistent with the defendant’s guilt, and inconsistent with any reasonable hypothesis other than his guilt. Hicks v. State, 70 Okla. Cr. 284, 106 P. 2d 136.

But where the evidence merely raises a suspicion, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful and dependent upon mere suspicion, surmise, or conjecture, it is the duty of the court to advise the jury to return a verdict of acquittal.

The evidence in this case reveals that one W. O. Core operated a service station in the city of Tulsa, where Skelly products were sold. That on the night of the 26th of November, 1940, this place of business was broken into and that certain property was stolen therefrom. The exact description of the property taken was not given, but the prosecuting witness, W. O. Core, testified that “tires, batteries, anti-freeze, Prestone and Zerox” were stolen.

The evidence of W. A. Brauch, whose testimony was given at the preliminary trial, was read to the jury upon proof that he was not in the State of Oklahoma, but was in California. His evidence had not been transcribed and filed in the court clerk’s office prior to the beginning of the trial. The court permitted the same to be filed at the time it was offered, and this is one of the errors complained of by the defendant. It is unnecessary to discuss this error. He testified that on Wednesday morning, before Thanksgiving, about 1:15 a. m., he walked past the filling station in question. That he saw a light burning therein, and saw a boy take some things from the shelf. That he saw the boy leave the building through a window that was open. And later he saw two parties standing by a tree near the station. He did not stop or make any investigation and could not either identify or describe the parties. That some 150 feet from the station, he saw an automobile parked. That he did not take down the license number, but remembered that it was “6-6925”, and it was an Oklahoma license plate. The only description of the same he was able to give was that it was a middle sized car and dark color, he thought.

Buck Hindman testified that he was in the used car business and had known the defendant for eight or ten months. That the day prior to Thanksgiving, he had permitted the defendant to use one of his cars. That it was a 1932 Buick tan coupe. That he did not remember the license number, but thought it began with a “6”, and it was a Creek county tag. The police officers came to his lot and pointed out a car. He said:

“Q. And that was the car you had let the defendant have, is that correct? A. That is right. Q. Up to' the time the police department came by your place and saw that car and pointed it out to you, was that car ever out of your possession from the time the defendant returned it to your lot? A. Well, the police officers came to my house about 10 one night and asked me where I got this Buick, who I got it from. Q. You told them? A. I told them I got it from Jack Meeker (?), and he got it from the Downtown Chevrolet. I asked them what the trouble was, was it hot? They said they don’t know, they wanted to ask some questions about it. Who has been driving that automobile?’ I told him Don Peeler had been driving it, and he wanted to know when, and how long, Don had the car in his possession. I told him something like three weeks. And he asked me when he brought it back, and I told him he brought it back, I believe it was on Tuesday morning about 9 o’clock. And he told me at the time, he said, ‘Well, we don’t know whether this is the car or not.’ But while I was checking this car, there was another Creek county Buick, same color, passed there. And he said, ‘Do you know anything about Don Peeler?’ I said, ‘No, I don’t. I sold him the car, and he has done a little work for us, and I don’t know anything about him, any more than dealing through the automobile.’ Q. That still doesn’t answer my question. Prom the time Don Peeler brought the car back, had it been out of your possession— A. No, it hadn’t, never been out of there. Q. You don’t remember the exact date he brought it back? A. No, I wouldn’t know.”

On cross-examination he testified the defendant had not bought the car from him, that he was doing some work on it, and that he could not remember the date when the car was returned by the defendant, but thought it was Tuesday, and that he knew it was 9 o’clock in the morning.

John Neal testified for the state that he lived at 2347 South Nogales in November, 1940. That he lived there with his wife and four children, and with the defendant and his wife, who was witness’ sister. That defendant left the house on the night he had heard a burglary wasi committed. That he did not know where he went. That he had a Buick coupe, model 32 or 33. He did not know when defendant returned home. The next day he saw a gallon of “Zerox” at his home, but did not see any spark plugs. He did not bring it to the house, but saw it sitting in his room on the dresser. He was not present when the officers searched the premises, but was there when the defendant was arrested at his home. He did not know the license number of the car, and did not know whether it was a Creek county license.

A. L. Selby, a member of the police force, testified that after defendant’s arrest, he procured a search warrant and searched the home. One of the assignments of error of the defendant is that this search warrant and affidavit were void. It is unnecessary to pass upon this proposition. He testified that he did not find anything in the house, but found four or five Skelly spark plugs in a car parked in front of the house. He did not testify as to the description of the car or to whom it belonged.

E. E. Eunyan, a police officer, testified that he investigated the burglary of the filling station of Mr. Core in November, 1940. That he located the car on the lot of Buck Hindman after talking to him. That he and Policeman Caffey, a fellow officer, arrested the defendant at his home and took from the house certain articles which he does not describe or state what they were, but on cross-examination said that he took a gallon of “Ze-rox.” Complaint is made that the search of the premises was illegal because they had no' search warrant, but we find it unnecessary to pass upon this contention.

Eoy Housouer, a policeman, testified that he had a conversation with the defendant after he was arrested, about the “Zerox”, and defendant told him that he bought it on Friday after Thanksgiving, from the Yellow Cab Station at Admiral and Utica.

E. B. ¡Spencer testified that he was working in November, 1940, at the station at 1649 East Admiral, Admiral and Utica. That they sold “Zerox” anti-freeze, and he examined the records and did not find that they sold any “Zerox” on the 29th day of November, 1940. On cross-examination he testified that three parties worked there and sold the products, but the register would show the amount on hand each day, including any amount bought during the time. This was the only evidence offered by the state, and the defendant offered no testimony, but stood on his demurrer to the evidence.

From the above evidence, it will be noted that the state did not produce any witness to identify the gallon of “Zerox” or the four or five spark plugs as being the property stolen from the Skelly filling station. This property was not even introduced in evidence. No signs or marks were shown to exist on the property to identify it as the property stolen.

There are a few slight circumstances connecting defendant with the possession of a Buick automobile and with the same tag number as specified by the witness Brauch, but there is no evidence connecting him with the burglary or with the car, except the circumstances here-inbefore stated. An examination of all of the evidence reveals that it is only such as to cast suspicion against the defendant, and is not sufficient to bring, it within the rule, that the circumstances must not only be consistent with each other, but consistent with the defendant’s guilt, and inconsistent with any other reasonable hypothesis other than his guilt.

The possession of stolen property, recently after the burglary, is, if unexplained, a circumstance tending to show the guilt of the burglary by the person having such possession. But no presumption of law of guilt arises from such possession. In the instant case the proof of possession of the “Zerox” and four or five spark plugs by defendant was very slight. No other property stolen was found in his possession. The fact that he had possession of the Buick car at a time near’ when the burglary was committed would not be inconsistent with his innocence.

As is stated in the ease of Kirk v. State, 39 Okla. Cr. 44, 263 P. 170, 171:

“Where the evidence raises a mere suspicion, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to return a verdict of acquittal.”

The record reveals that the defendant was unable to make bond pending this appeal, and that he has been confined in jail and the State Penitentiary since December 5, 1940, a period of 15 months. For the reasons above stated, the judgment and sentence of the district court of Tulsa county is reversed, and the clerk of this court is directed to forward a copy of this opinion to the warden of the State Penitentiary at McAlester, and upon receipt of same, he is directed to discharge the defendant.

JONES and DOYLE, JJ., concur.


text:
    JIM STORY v. STATE.
    No. A-9999.
    May 6, 1942.
    (126 P. 2d 103.)

      Laynie W. Harrod, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Jim Story, was charged in the court of common pleas of Oklahoma county, with the crime of unlawful possession of intoxicating liquor, to wit, ten pints of non-taxpaid whisky, was tried before the court, having waived a jury, was convicted and sentenced to pay a fine of $50 and to’ serve 30 days in the county jail, and has appealed.

It is contended that the court erred in overruling the motion to suppress the evidence by reason of the illegality of the search warrant issued in this case.

A hearing was had upon the motion to suppress, which was overruled and excepted to by the defendant. The affidavit upon which the search warrant is based was introduced and was in the name of “John Doe”, and defendant’s name was not mentioned thereon. The description of the property to be searched was as follows: “a one story frame building located in the rear of 129 West Chickasaw Street in Oklahoma City, Oklahoma County, Oklahoma.” The evidence revealed there was a building located at “129 West Chickasaw Street” that faced south. In the rear of this building there were located three other buildings. All of these were owned and managed by Mrs. Fonnie Maxey, whn testified at the hearing. They were occupied by different tenants whose names were given. The house occupied by the defendant was the farthest house to the north and was on the alley. It was occupied by the defendant as a residence, and it was here the intoxicating liquor was found. The house was locked, and just as the officers arrived for the search, the defendant appeared and produced a key and admitted that the liquor found belonged to him.

We have carefully examined the search warrant and the affidavit and have come to the conclusion that it is insufficient under the law as interpreted by this court in many decisions. In the first place, the affidavit and warrant did not name the defendant, though the evidence revealed the officers were well acquainted with him prior to the search. We have held in numerous cases that it is not necessary that the affidavit should specifically name the defendant if his name was unknown, but have also often stated that it was the best practice to- name the party whose premises were to be searched if the name is known to the officers at the time of procuring the warrant. That in the event the name was not stated, it was necessary that the premises be described with such particularity that there could leave no doubt as to the place to be searched. Denmark v. State, 71 Okla. Cr. 95, 108 P. 2d 550; Id., 71 Okla. Cr. 424, 112 P. 2d 437.

As early as April 2, 1927, this court, in the case of State v. Ed Skelton, 36 Okla. Cr. 377, 254 P. 754, called attention to the fact that the better practice was to name the party whose premises were to be searched if known. Shanafelt v. State, 38 Okla. Cr. 345, 261 P. 380, and Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145. In the instant case, the affidavit was not made until July 23, 1940, and being after these and other decisions had been rendered holding that it was best.to name the party occupying the premises, if known.

In the instant case, the affidavit and warrant being in the name of “John Doe”, the officers could have searched the premises of three other buildings which are in the rear of “129 West Chickasaw Street”, and which were occupied by other parties, and if liquor had been found therein, a return could have been made and those parties charged the same as was the defendant. No doubt this was the reason for procuring the “John Doe” warrant in this case. It is contended by the state that the house of the defendant being the last house of the four mentioned, it was therefore in the rear of “129 West Chickasaw Street”, and that it was therefore plain that it was the house intended to be searched. This reasoning does not appeal to us. If it had been found in the first house, it could have been just as reasonably contended that it was intended to be that house because it was immediately in the rear of “129 West Chickasaw Street.” The evidence revealed that none of the four houses in the rear of “129 West Chickasaw Street” was numbered, but all were occupied by different parties. It would have been very easy to have added to the description in this affidavit the name of the party whose premises were to be searched, or to have particularly described this house as being on the alley, and in such other manner that there could have been no doubt as to what premises were to be searched.

The true test of the sufficiency of a description in an affidavit and search warrant is that it should enable the officers executing the search warrant to locate the premises to be searched without aid of any other information save that contained in the search warrant. Pickins v. State, 71 Okla. Cr. 167, 110 P. 2d 319; Mason v. State, 63 Okla. Cr. 153, 73 P. 2d 468; Allgood v. State, 73 Okla. Cr. 146, 118 P. 2d 662.

Prom the above statement, it appears that the court erred in refusing to sustain the motion to suppress the evidence obtained by reason of the search of defendant’s premises, and for this reason the judgment and sentence of the court of common pleas of Oklahoma county is reversed, with directions to discharge the defendant.

JONES and DOYLE, JJ., concur.


text:
    VERNON G. DOBSON v. STATE.
    No. A-9962.
    May 6. 1942.
    (126 P. 2d 95.)

      A. J. Moore, of Oklahoma City, and Frank Houston, of New Orleans, La., and A. V. Dinwiddie, of Guthrie, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Defendant, Vernon G. Dobson, was charged in the district court of Oklahoma county with grand larceny by fraud, was tried, convicted and sentenced to serve two years in the State Penitentiary, and has appealed.

The only proposition presented by defendant which it is necessary to discuss is whether the court erred in failing to- sustain the motion of the defendant to1 direct a verdict of not guilty at the close of all the evidence.

The defendant was charged specifically with the larceny by fraud of the sum of $300 from Moody Stamper.

The undisputed proof is that the defendant is a young man living in Oklahoma City. That he owned or had control of some trucks which were being used in hauling fruit and vegetables from the Rio Grande Valley in Texas. He had been engaged in this business for about six months prior to October 1, 1939. That in May, 1939, and continuing at various periods thereafter, until the middle of October, 1939, the defendant inserted an advertisement in" the daily Oklahoman to the effect: “Partner wanted, trucking business, investment $200 required — 1442% N. W. 26th.”

Moody Stamper testified that in answer to the advertisement he called on the defendant at his residence. That the defendant informed him that he was in the trucking business hauling produce from Texas to Oklahoma City and that be had contracts and connections through which orders for trucking- produce had been obtained. That he owned some trucks and needed capital with which to purchase other trucks and to pay certain state motor vehicle mileage taxes and purchase motor vehicle licenses and permits. The defendant represented he would furnish Stamper with a truck which he could drive, or have someone drive for him. That on October 7th Stamper turned over to defendant |200 in cash and signed a contract which reads as follows:

“Oklahoma City, Oklahoma
“October 7, 1939
“Profit Sharing Contract
“I, Vernon Dobson, hereby receive from Moody Stamper the sum of $200.00 for the use of which I agree to pay Moody Stamper one-fourth (%) and R. F. Sukow one-fourth (*4) of the profits derived from one truck, at present a 1% ton truck employed in fruit business.
“I, Vernon Dobson, will do all the buying and selling, and stand the upkeep of said truck, except the fuel which will be paid from profits.
“Any time Mr. Stamper so desires to dispose of his interest he is to give me 30 days notice, and I, Vernon Dobson, am to' return Mr. Stamper his money ($200.00), or, if for any reason he be discharged from service, he will automatically receive his $200 from date of notice.
“I, Vernon Dobson, am to1 divide said profits after each trip.
“(Signed) Vernon Dobson
“Vernon Dobson
“(Signed) Moody Stamper
“Moody Stamper
“(Signed) R. F. ¡Sukow
“R. F. Sukow”

That four days later Stamper gave defendant another $100 and entered into another written contract, which reads as follows:

“Commission Agreement
“Know All Men By These Presents:
“This agreement made and entered into, by and between Vernon G. Dobson, party of the first part, and Moody Stamper, party of the second part, Witnesseth:
“Whereas, the party of the first part is the Lessee of a certain Chevrolet one and one-half ton track, more fully described as follows: 193-Model; Oklahoma License No. —; operating under TLS.D. Permit No. 445; equipped for transporting fruits and vegetables, and
“Whereas, the party of the first part does hereby employ the party of the second part as driver and helper to operate the above described truck on the following basis, to-wit:
“The said party of the first part hereby agrees to pay party of the second part for his services aforementioned, % of the Net proceeds, or profits, as they accrue from the operation of the aforementioed track, as his full recompense or commission, for services rendered.
“Said % of the net earnings, from whatever source earned, by the above mentioned truck, shall be determined as follows: Gas, oil, meals of 2 drivers (while on duty only) together with an over-ride of Three Dollars per load, shall be deducted from gross proceeds of said load transported, the then left proceeds shall constitute the Net profits, and shall be distributed as set forth in this agreement, as the full compensation or commission for services rendered by the party of the second part.
“This agreement is based on the further stipulation that the party of the second part has loaned party of the first part the sum of Three Hundred and no/100 Dollars for which party of the first part has executed a promissory note, payable on 30 days written notice by the party of the second part, the payment of said note automatically cancels this agreement.
“This agreement cancels, abrogates and renders any previous agreement, either written or implied, null and void.
“Witness our hands and seals this 12 day of Oct., 1939.
“Subject to assignment within 15 days.
“(Signed). Yernon Dobson
“Party of the First Part
“(Signed) Moody Stamper
“Party of the Second Part
‘Witnesses:
“(Signed) J. A. Tapley
“(Signed) Millie ¡Stamper”

Stamper further testified that defendant, at that time, gave him a note for $300 due 30 days after written demand by Stamper. That defendant did not furnish him a truck, and on October 17, 1939, Stamper, after consulting the county attorney, served a written notice on defendant demanding a return of his money. Four days thereafter defendant paid back $75, and a week later he repaid $25, but made no further payments.

Richard Sukow testified that he saw the ad placed by defendant in the newspaper; that he went with Moody Stamper to investigate the proposition offered by defendant and put up $100 of the money which was advanced by Stamper. Stamper was not physically able to drive a truck and witness was to be the truck driver. His testimony as to the agreement with defendant and the putting up of the money was substantially the same as that of Stamper.

Charley Briney testified that he answered the ad of, defendant and signed a contract with him on September 12, 1939. The contract was identified and is substantially the same as that signed by Stamper. The defendant gave witness his note for $200, due after 30 days’ written demand, with 6 per cent interest after maturity. Witness further testified that after he discussed the proposition with defendant the first time he did not sign the contract, but made an investigation for several days, during which time he talked to people who* had worked for defendant and had made some money out of the deal and to a filling station man, which satisfied him that defendant’s proposition was good; that he returned in three or four days and signed the contract with defendant and gave him $200 as working capital. Witness further testified that defendant did furnish him a 1% ton Chevrolet truck which another man drove, but they never did make any profit out of the operations of the truck; that he did know some other truck drivers who said they had made money out of the operations of their trucks.

James Earl Hoover testified that he read defendant’s ad; that he signed a contract with defendant substantially the same as that described by Moody Stamper and advanced defendant $125; that defendant gave him a note due after 30 days written demand. That defendant never did put him to work, and, after he gave him the 30 days’ notice, defendant told him that the business had gone broke. That defendant offered to give him a pickup truck, but he did not want to drive the truck as he wanted to work here in town and get one-fourth of the profits from one truck; that he never did draw any profit from his investment and never was repaid his money.

D. C. Cranfill testified that he saw the advertisement of defendant, and, after a discussion with defendant, he put up $75 in cash and furnished a 1936 Chevrolet truck. That he was to haul fruit out of the Valley with the truck. A written lease was executed between the parties, which provided as follows:

“Lease
“This Lease made this 30th day of October, 1939, by and between D. C. Cranfill, Party of the First Part, and J. A. Tapley and Vernon Dobson, Lessors, Party of the Second Part, Witnesseth:
“That said first party in consideration of the covenants and agreements hereinafter set forth does by these presents demise, lease, and let.nnto the second party the following described property, to wit:
“1936 Chevrolet SU Truck, Serial Number 5RD02-6813; Motor Number T6051608; Title Number A217794A; Permit Number 17970; 1939 Tag Number TJE 424.
“To have and to hold the same to the Second Party from the 30th day of Oct. 1939 to the 30th day of Oct., 1940, and said Second Party agrees to pay to the first Party as rental for the above described truck a proportionate share of the earnings of said as follows:
“Two drivers are to be employed to drive said track, one to be paid by the party of the First Part, and one to be paid by the Party of the Second Part. The Party of the second Part agrees to pay half of all expenses incurred on these trips for oil, gasoline, flats, meals, after sums so expended has been deducted from the profits made on each trip, the profits shall be divided equally, one-half to the Party of the first part, and one-half to Party of the Second Part, after each trip.
“Party of the first part and party of the second part shall pay, in equal amounts, for new tires, Motor repair and general upkeep for the said truck. These expenses shall be paid out of the net profit after all incidental expenses.
“It is further agreed that the Second Party shall not assign this lease without the written consent of the First Party, and it is also agreed that upon failure of the Party of the Second Part to comply with the terms and conditions of this Lease, and his failure to make due and proper accounting and settlement with the party of the first part after each trip' then the first party may declare this lease at an end and void.
“The First Party shall post $75.00 cash bond to the Second Party for registration of said truck under Second Party’s Permit and for all liabilities incurred and for all tags and permit needs out of the State of Oklahoma.
“It is further agreed that at the end of this lease, or sooner termination thereof, the second party shall give peaceable possession of the premises to the first party in as good condition as it is now, the usual wear and tear and damage by the elements alone excepted; and upon the non payment as above set out, said first party' may distrain for rent due and declare this lease at an end and void, and re-enter and recover possession and notice of such election and demand of possession are hereby waived. This lease shall next be considered renewed except by agreement of the parties.
“The covenants and agreements of this lease shall extend to and be binding upon the heirs, executors and assigns of the parties hereto.
“Witness our hands and seals the date first above written.
“D. C. Cranfill
“Party of the First Part
“J. A. Tapley
“Party of the Second Part
“By Vernon Dobson
“Witnesses:
“Joe F. Eiley
“Dot Cashion
“Witnesses:
“Hale Baldwin
“Dot Cashion”

Witness further testified that after he first talked to defendant he made an investigation for about seven days; during which time he talked to' other parties who bad bad dealings with defendant and who said be was all right, after wbicb be signed tbe contract. That tbe contract wbicb was signed was worded by both bimself and Mr. Dobson after a discussion as to tbe terms; that defendant never repaid him tbe $75, although be found where tbe defendant bad made a deposit to secure tbe payment of mileage taxes; that witness did not mate any trips in bis truck.

A. D. Baugh testified that be was interested with tbe witness Cranfill in bis contract with defendant; that he helped Cranfill borrow tbe money to purchase tbe truck wbicb was to be used in tbe hauling. His testimony corroborated tbe statements made by Cranfill. The witness further testified:

“Q. (By Mr. Moore, attorney for defendant) He did obtain bis cab card? A. Oh, yes. Q. That was the fact tbe cab was properly registered to operate in Oklahoma for tbe purpose you are talking about? A. There was a little trouble existing at tbe State Capitol on that and it took an awful long time to get that cab card. Q. How long did it take? A. I don’t know just bow long,, but we were out there with him and something was wrong, not only this, but some other registrations out there, it seems as though be bad gone out there and persuaded them to issue cab cards without making tbe proper arrangements and be didn’t keep his promise. Q. Tbe state required him to put up $25 on each truck? A. Yes. * * * Q. This $75 when you turned it over to Dobson, you understood $25 was to pay tbe mileage tax? A. Yes, sir. Q. Part of this money was to go' for cargo insurance? ' A. Yes, sir. Q. And part of it to' go to expense money? A. Yes, sir.”

L. A. Arnold testified that be placed $75 with defendant and signed a contract tbe same as was signed by other witnesses; that defendant sent him to Mercedes, Tex., under another man to haul foods, and that defendant advanced Mm $27.50 for expenses on the trip; that he brought back a load of fruit, but never realized any profit on his trip. On cross-examination witness admitted, however, that he did receive $9.24 which represented one-half the profits on the load of grapefruit which was hauled to Oklahoma City. That he made three trips between Oklahoma and Texas; that the permits and bonds and other incidentals in connection with the truck were arranged by the defendant and he was not molested by any officers in either Texas or Oklahoma in connection with the operation of truck. Witness further admits receiving from defendant $40 on one occasion and $50 on another occasion in connection with the trips he made. Witness further testified that he originally put up $150 with defendant, but defendant gave him back $75 and made him a note for the other $75. Witness never has asked defendant to repay him the $75.

This was all of the evidence offered by the state.

On behalf of the defendant, the following witnesses were offered.

J. W. Mosey testified that he made a contract with defendant in June or July, 1939, in which he put up $150 and was to get one-fourth of the net earnings of a truck; that he drove the truck to Arkansas, Kansas, and New Mexico. That he worked on three different trucks of defendant — a Dodge, a Chevrolet and an International. Witness signed a contract with defendant substantially the same as that signed by the witnesses for the state. Witness never made a demand on defendant to pay the note for $150, but defendant had paid him $45 on the note. The defendant did make a profit on the trips which he made. In refutation of the statement made by the prosecuting witness that he was never furnished a truck by defendant, in accordance with the contract, Mosey testified:

“Q. (By Mr. Moore, attorney for defendant) Now, Mr. Mosey, do you know the prosecuting witness, Moody Stamper? A. I know him when I see him; I have never been introduced to him, just know him when I see him. Q. Do you know whether or not Mr. Stamper had an opportunity to make a trip? A. He did. Q. Did he make it? A. No, sir. Q. Did he refuse? A. I know the truck was held for four hours to make the trip and he showed up the nest morning. Q. And they sent the truck on? A. Yes, sir. Q. After waiting four hours? A. Yes, sir.”

Audry McCully testified that he entered into' a contract with defendant in April, 1939, and worked about eight months. His agreement was the same as that made by the other witnesses. He averaged two or three trips a week during the eight months period he worked. That he made a profit out of the.hauling which he did and received $100 of his money back from the defendant. That the fruit business became unprofitable in the fall, and when everyone decided to quit and demand their money back at the same time that defendant went broke and could not pay his debts.

Don Walker testified that he made a contract with defendant in May, 1939, in response to' an ad in the paper; that he made a personal investigation of defendant before advancing any money, after which he put up $125 with defendant and signed a written partnership contract. That he operated a truck for four or five months between Oklahoma and Texas hauling fruits and vegetables. That the trips which he made were “fairly profitable.” That he withdrew from the business in August, at which time it was going along in good shape. When he quit the business he made a written demand for repayment of his money and defendant paid him back the money which he had advanced. That defendant “took care of the mileage tax, bond and staff like that.” That occasionally when he was oat on the road he had to wire the defendant for expense money, which was promptly sent to him. Witness gave some names of other parties who had worked daring the period he had worked for defendant who had made a living oat of their work.

Charles Ollie Bass testified that he pat ap flOO with defendant and entered into a written partnership contract with him. That he made several trips to< Texas hauling fruits. That he woald take his load to the Fuller Fruit Company at Talsa. That he continned haaling under his agreement with defendant for about three months, daring which time he made a little profit. He farther testified that he worked until the business went broke. That the business turned oat to be unprofitable and went broke through no fault of defendant. That he never .received back any part of the $100 which he advanced, bat that on all trips made by him the defendant furnished the expense money; that credentials and everything necessary in the operation of the track were in proper order and famished by defendant.

J. W. Mosey, recalled as a witness, testified that defendant sent him to' Texas when the business commenced to fail to find oat what was wrong. He testified:

“Q. (By Mr. Moore, attorney for defendant) Mr. Mosey, did Mr. Dobson send you to Texas shortly before the business failed? A. Yes, sir. Q. What was the purpose of your trip down there? A. The purpose was to find oat what was going on down there, Brown & Williamson canceled the contract they had and there were not enough work for the tracks and I went down to investigate. * * * Q. What was the result of your investigation, what did you find oat? A. I found oat Brown & Williamson had been giving the boys some work and they didn’t give the boys enough work and I went down and Mr. Tapley had been there previously and they gave him instructions as to' what be could do with tbe trucks and that is about all I could do with him. Q. Did tbe business fall off? A. Yes, sir. * * * Q. Now, I think you testified yesterday you made numerous trips between here and Texas yourself? A. Yes, sir. Q. You picked up a cargo of vegetables and would bring1 them back here? A. Yes, sir. Q. What disposition did you make of your load when you arrived back in Oklahoma? A. Tbe driver of tbe truck made those generally and turn them over to Mr. Dobson. Q. Do you know where these commodities were sold? A. .Some in Oklahoma City and some in Tulsa.”

Mrs. Alta Dobson, mother of defendant, testified that she was familiar with her son’s trucking business. That at times tbe market would drop and be would lose on a load of fruit and she would furnish him money to help pay bis bills. That when the men commenced demanding their money back she borrowed |650 from the First National Bank at Guthrie and furnished it to defendant to try to save his business for him. While this witness was testifying the court took a recess of 15 minutes to enable the assistant county attorney to call the bank at Guthrie to investigate the truthfulness of the witness’s statements. When court convened, the assistant county attorney was placed on the witness stand by defendant and he testified that he called the First National Bank at Guthrie and they said Mrs. Dobson borrowed $650 on November 6, 1939, and placed it in an account used by the defendant and that the money had all been withdrawn.

In rebuttal, the state introduced several contracts identical in wording with those hereinabove described by other witnesses, which contracts were furnished to the county attorney’s office by the defendant at the time an investigation was made of defendant’s activities, before charges were filed against him.

It is insisted by counsel for defendant that the proof of the state and defendant, when considered as a whole, shows conclusively that the defendant has committed no crime. However, it is further contended that if the view of the evidence as taken by the state should be assumed as correct, the defendant would not be guilty of larceny by fraud but would be guilty of either embezzlement or obtaining money by false pretenses.

To constitute larceny by fraud, the taking must be accomplished by the party charged from the owner of the property, in which the owner voluntarily parts with possession only, but retains the right of property in the subject-matter, and the design to convert the property to the permanent use of the taker, or someone else, must be active at the time of the taking. The owner must part with possession of the property alone, reserving the ownership therein, and the possession must be fraudulently obtained with the then intent on the part of the person taking it to convert it to his own or another’s use in order to constitute the offense of larceny. If the owner parts with the possession and title, due to the deception and artifice of the taker,-then the offense constitutes obtaining money under false pretenses, and not larceny by fraud. McKinney v. State, 19 Okla. Cr. 94, 198 P. 108.

In 32 Am. Jur., Larceny, § 7, p. 893, it stated:

“The distinction (between larceny by fraud and obtaining property by false pretenses) is a very nice one in many instances, and in some of the old English cases the difference is more artificial than real, resting purely on technical grounds. The character and nature of the crime depend on the intention of the parties. The intention of the owner not to part with his property when relinquishing possession is, in this class of cases, the gist and essence of the offense of larceny and the vital point on which the crime hinges and is to be determined. The correct distinction in cases of this kind seems to be that if by means of any trick, fraud, or artifice the owner of property is induced to part with the possession only, still meaning- to retain the right of property, the taking, by such means, where the requisite felonious intent is present at the time, will amount to larceny; whereas, if the owner parts with not only the possession of the goods but the right of property in them also-, the offense of the party obtaining them will not be larceny, but the crime of obtaining goods by false pretenses. Primarily, therefore, the nature of the offense in a particular case where possession of goods or money is obtained by fraud is determinable by solution of the question whether the owner, in parting with possession, intended to part with his title also. Accordingly, one test for distinguishing between larceny and obtaining property, other than money, by false pretenses is said to be whether the offender can confer a good title an another by the sale and delivery of the property. If he can, the crime is obtaining property by false pretenses. If he cannot, the crime is larceny.”

After carefully reviewing the testimony in this case, we are of the opinion that the evidence wholly fails to support a conviction of larceny by fraud. It may possibly be that under the state’s theory of the case the defendant is guilty of obtaining property by false pretenses. It is not necessary in this opinion for us to decide that question. The proof is undisputed that Stamper parted with the possession and title to the money which he delivered to the defendant. Both parties recognized this fact by the making of a note for the money given to the defendant and delivery by the defendant of the note to Stamper and its acceptance by him. The note evidenced the indebtedness owed by the defendant to' Stamper. The prosecuting witness transferred the possession and title to the money which he delivered to' defendant. He was loaning defendant the money in order to' engage in what the witness thought would be a profitable enterprise. If the money was advanced by Stamper because of artifice and false representations made by Dobson, the defendant would be guilty of obtaining money by false pretenses, but not of larceny by fraud as no right of property was reserved in the money which was advanced by Stamper. The county attorney apparently recognized that no crime had been committed at the time Stamper first complained to him about the transaction as he required Stamper to . give the 30 days’ notice to the defendant for repayment of the money before the instant action was commenced. If the defendant was guilty of larceny by fraud it had already been perpetrated at that time and the 30-day demand for repayment of the money delivered by Stamper to the defendant would not change the nature of the crime.

A consideration of the evidence in connection with the written contract entered into between Stamper and Dobson does not disclose any misrepresentations in the contract.

There are undisputed facts which definitely show that the defendant was the owner or in control of several trucks and that he had for several months during the year 1939 been engaged in the hauling of fruit and produce from various states into Oklahoma in these trucks. Many of the witnesses wlm testified admitted that the business as proposed by the defendant would have been profitable if the fruit and vegetable market in Texas had not collapsed through no fault of the defendant. Some of these men lost the money which they had delivered to the defendant, but they did not even demand the return of this money for the reason, as some of them testified: “I knew he didn’t have the money and there was m> use to' ask for it. It wasn’t his fault the business went broke.” According to the witness Mosey, defendant Dobson had the truck described in the contract with Stamper available for the use of Stamper and held it for four hours one morning waiting for Stamper or someone authorized by-Stamper to' appear and drive the truck.

The trial judge was exceedingly fair in all of his rulings on the admission or rejection of evidence and he gave every instruction requested by the defendant. While the court did not specifically instruct the jury to return a verdict of not guilty, the instructions which he gave, if followed, would have accomplished that result. The trouble lies in the fact that the jury wholly disregarded the instructions of the court. The error of the court occurred when he submitted the question to the jury for their determination of the question of fact as to whether larceny had been committed, as we find that a review of the whole record wholly fails to establish the guilt of the defendant of the crime charged in the information. This court would have to supply some of the elements of the crime by guesswork and supposition before the conviction herein could be sustained. It is unfortunate that Stamper and some of the other parties lost money on this enterprise in which they engaged, and the defendant may have concocted a nefarious scheme to defraud them of their money, but the proof fails to- establish this contention.

In the case of Kirk v. State, 39 Okla. Cr. 44, 263 P. 170, 171, it is stated:

“Where the evidence raises a mere suspicion, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to return a verdict of acquittal.”

For the reasons hereinabove stated, the judgment of the district court of Oklahoma county is reversed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    N. H. LEE v. STATE.
    No. A-10005.
    May 6, 1942.
    (126 P. 2d 94.)
    Jack Spivey, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   DOYLE, J.

N. H. Lee was by information filed in the common pleas court in and for the county of Oklahoma, January 27, 1939, charged with the unlawful possession of 17 pints of tax-paid liquor.

On September 23, 1940, the case came on for trial before Oarl Traub, judge in division No. 1 of said court. It wag stipulated by and between the parties to' try the case to the court. The trial resulted in a conviction. Whereupon, on request of counsel for the defendant, sentence was deferred to October 5, 1940, time to file motion for new trial September 27th. The minutes show, October 5, 1940, motion for new trial overruled, exception, and defendant, N. H. Lee, sentenced to serve 30 days in the county jail and pay $50 fine and costs. The defendant gave notice of appeal.

On November 16, 1940, the court upon defendant’s application granted 60 days in addition to the 60 days allowed by law, or 120 days in all, from the date of the judgment in which to file an appeal in the Criminal Court of Appeals of Oklahoma.

The record shows that the petition in error with case-made attached was filed in this court on February 5, 1941, On September 25, 1941, it was submitted on briefs. The record shows that briefs on the part of appellant and the state were filed in the case.

An examination of the record discloses that the petition in error and case-made were not filed within 120 days after the rendition of said judgment. This being an attempted appeal from a judgment of conviction for a misdemeanor, the greatest length of time within which the appeal must be lodged in this court is 120 days from the rendition of the judgment. Sec. 3192, Sts. 1931, 22 O. S. 1941 § 1054. Newton v. State, 38 Okla. Cr. 217, 260 P. 84; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95; Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870.

It has been uniformly held that, in order to give this court jurisdiction, the appeal as prescribed by section 3192, supra, must be filed with the clerk of this court within the time which an. appeal may be taken, and, where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Newton v. State, supra.

The petition in error with case-made attached not having been filed in this court within 120 days after the rendition of judgment, this being a misdemeanor conviction, the attempted appeal herein must necessarily be dismissed.

For the reasons stated, the purported appeal herein should be dismissed and the cause remanded to the trial court, with direction to enforce its judgment and sentence, and it is so ordered.

BAREFOOT, P. J., and JONES, J., concur.


text:
    DUDLEY PONDER v. STATE.
    No. A-10139.
    May 13, 1942.
    (126 P. 2d 287.)
    Sigler & Jackson, of Ardmore, for plaintiff in error.

      Mae Q. Williamson, Atty. Gen., and Alvin O'. Bruce, Co. Atty., of Ardmore, for defendant in error.
   JONES, J.

The defendant, Dudley Ponder, wad charged in the county court of Carter county with the unlawful gale of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, and pay a fine of $50 and costs, and has appealed to this court.

The appeal herein has just been recently filed. At the request of counsel for defendant, in which he was joined by the county attorney, this case has been advanced for early disposition for the reason that the defendant is being called to the army.

Only one question has been presented for consideration to this court, to wit, whether the information is sufficient on its face to charge the defendant with the crime of unlawful sale of intoxicating liquor.

The information filed against the defendant is as follows:

“In the Name and By the Authority of the State of Oklahoma
“Now comes Alvin C. Bruce, the duly qualified and acting County Attorney, in and for Carter County, State of Oklahoma, and gives the County Court of Carter County, State of Oklahoma, to know and to be informed that ■ — -• did, in Carter County, and in the State of Oklahoma, on or about the 8th day of October in the year of our Lord, One Thousand, Nine Hundred and Forty and before the presentment hereof, commit the crime of Unlawful sale of Intoxicating Liquor in the manner and form as follows, to-wit:
“That the said Dudley Ponder in the county and state aforesaid, on the day and year aforesaid, did, knowingly, wilfully, and unlawfully sell certain intoxicating liquor, to-wit: 1 pint to Bob Elliston; contrary to the form of the Statutes, in such cases made and provided, and against the peace and dignity of the State.
“(Signed) Alvin C. Bruce
County Attorney
“Alvin C. Bruce.”

It is insisted that failure to insert the name of the defendant in the first paragraph of the information makes it fatally defective, and, secondly, that the information is indefinite and uncertain in that it omits to charge the defendant with the sale of any intoxicating beverage.

There is no merit to the first contention as we find the defendant’s name is contained in the title to the information and is also contained in the charging part of the information, and the failure to insert a name in the first paragraph of the information does not render the information defective as not naming the person who is alleged to have committed the crime.

We think the second contention of the defendant should have been sustained. The information merely charges that defendant did “unlawfully sell certain intoxicating liquor, to wit: 1 pint to Bob Elliston.” It does not state whether the alleged liquor is whisky, wine, beer, ale; whether it is one of the liquors which are per se intoxicating, or whether it is a beverage which must be described and its intoxicating qualities proved at the time of the trial. If the information had charged the sale of whisky, it would not have been necessary to allege the alcoholic content. Hill v. State, 41 Okla. Cr. 266, 272 P. 490. On the other hand, if it charged the sale of “choc beer”, or some similar beverage, it would have been necessary to have alleged and proved that its alcoholic content was in excess of that provided by law. Ex parte Sneed, 38 Okla. Cr. 81, 259 P. 156.

It is fundamental that one charged with crime is entitled to be advised by the information of the nature of the offense against which he is to defend. Every element of the offense must be charged in clear and affirmative language so that the defendant may be apprised of what he must be prepared to meet. The information herein does not meet this test, and for that reason we think is fatally defective.

For the reasons hereinabove given, the judgment of the county court of Carter county is reversed and remanded, with directions to the county attorney to amend the information filed against the defendant to cure the defects herein pointed out and to grant the defendant a new trial.

The county attorney has appeared before this court and stated that he thinks this charge should be dismissed against the defendant and has asked this court to take such action. This is a matter to be addressed to the county court of Carter county. By the remanding of this case the county attorney may appear before the county court of Carter county and make his request for dismissal to that court.

BAREFOOT, P. J., and DOYLE', J., concur.


text:
    WALTER H. RILEY v. STATE.
    No. A-9960.
    May 13, 1942.
    (126 P. 2d 284.)

      Willis R. .Stark, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Walter H. Riley, was charged by information filed in the district court of Oklahoma county, along with one Frank Inman, with the crime of robbery with firearms, was tried, convicted, and sentenced to serve ten years in the State Penitentiary, and has appealed.

The only assignment of error presented by counsel for defendant is that the defendant did not have a fair and impartial trial because of improper questions asked by the assistant county attorney in the presence of the jury, and unfair statements made by the assistant county attorney in his closing argument.

The proof of the state showed that on February 11, 1940, Mr. and Mrs. E. A. Thomas and their small son drove up in front of their house on West Sixteenth street in Oklahoma City. As they stopped their car three men approached, one of them tapped on the window with a flashlight and ordered the Thomases out of their automobile. Mr. Thomas locked the inside of the car and one of the men broke the glass in the window with a pistol and threatened to kill them if they did not gelt out of the car. Two of the robbers ordered Thomas and his wife and small son to go into their house. The robbers there tied the three members of the Thomas family securely, took $960 in cash from the pockets of Mr. Thomas and fled. One shot was fired by one of the robbers while at the automobile, but it was apparently for the purpose of threatening the persons in the car as no one was injured.

The robbery was reported to the police, together with a description of the persons who committed the robbery. The defendant and Frank Inman were arrested a few days later and positively identified by both Mr. and Mrs. Thomas as the two men who' committed the robbery.

The defendant did not testify and offered only two witnesses in an attempt to- prove an alibi. No question is raised as to the sufficiency of the evidence to sustain the conviction.

It is first argued that the assistant county attorney committed error in asking Mrs. Thomas if she identified pictures of suspects had in the sheriff’s office prior to the time the defendants were arrested. The assistant county attorney asked this question in different form three times. Objections were properly interposed to each question and the objections were sustained and the jury instructed to disregard the question.

The prosecutor should not have asked these questions. In the first place, it was casting a reflection upon the reputation of the defendant when he had not placed his reputation in issue. It is reasonable to believe that the jury would have thought that if the picture of the accused had been in the rogues’ gallery at the sheriff’s office it would have indicated that he had been in the custody of the officers for some violation of the law at some previous time when his picture was taken. The county attorney should not attempt to bolster his case by this incompetent and inadmissible evidence.

In the recent case of Alberty v. State, 68 Okla. Cr. 246, 97 P. 2d 904, it is stated:

“In robbery prosecution, testimony of chief of police that he took a number of photographs to home of prosecuting witness and that witness and his wife picked out defendant’s photograph from among the photographs as the photograph of one of the robbers, was incompetent and inadmissible as an attempted ‘extrajudicial identification.’ ”

Here, however, the court promptly sustained objections of the defendant to the propounding of these questions and admonished the jury not to consider, in any manner, the questions asked by the assistant county attorney. No exception was saved by counsel for defendant to' the alleged misconduct of the assistant county attorney and no' motion for mistrial was presented. In addition to that, we find that if such conduct of the prosecutor had been error, the error was cured because of questions asked by counsel for defendant on his cross-examination of Mrs. Thomas. She had positively identified the defendant as one of the robbers, and had described his clothing and other mannerisms which she said enabled her to. make the identification. We find counsel for defendant asking the following questions:

“Q. (By Mr. Stark, counsel for defendant) Mrs. Thomas, didn’t the officers of the law come out to your place with descriptions of this man and pictures of him and you picked him out before that show up? A. I don’t remember them bringing any pictures to the house. Q. Would you say it didn’t happen? A. No; I wouldn’t, there was so much went on I couldn’t think of everything. Q. You don’t remember that at all? A. No ; I don’t, I might some time in the future, but right now I don’t remember them ever bringing any pictures to my house. Q. You don’t remember that at all? A. No; I don’t.”

The defendant can hardly complain of the questions asked, by the assistant county attorney and which were not allowed to be answered when we find that his counsel, on cross-examination, asked similar questions.

The other questions by the assistant county attorney which were complained of were not improper.

The alleged improper argument is shown in' the record to consist of the following statement by the prosecuting attorney:

“(Thereupon the court instructed the jury and argument of counsel presented, and that during the closing argument of the county attorney the following proceedings were had) : Mr. Marlin: I believe I said that inasmuch as counsel for the defense stated what he did in answer to the argument of the assistant county attorney that if he believed at the close of the state’s evidence that the defendant was innocent he would have called for a dismissal of the case, and in response to' the statement made in the argument of counsel for the defense, counsel for the state says that at the close of the state’s evidence defense counsel interposed a demurrer to the evidence and asked for a dismissal of the case and that the trial court overruled the demurrer and asked the defendant to proceed to trial; that if there had not been sufficient evidence for the case to go to> the jury the court would have sustained a demurrer and dismissed the case himself. Mr. Stark: Comes now the defendant and moves the court to declare a mistrial for the reason that the county-attorney in the above statement has invaded the province of the court in advising- the jury of a ruling- by the court on a matter of law which is not a part of the evidence in this case. The Court: The motion will be overruled with exceptions. Gentlemen of the jury, you will disregard the argument of the county attorney as to any ruling of the court made on any such motion or demurrer and I direct your attention to instruction No. 11.”

It is apparent that the prosecuting attorney was making this statement in answer to some similar statement made by counsel for defendant. We cannot find, from a reading of this single excerpt, that the argument of the prosecuting attorney was prejudicial to' the defendant. Especially is this true in view of the fact that the proof overwhelmingly shows the guilt of the defendant and the jury only assessed the very moderate punishment of ten years in the penitentiary.

We have carefully examined the entire record and find that the defendant has had a fair and impartial trial, free from any material error, and that the judgment of the district court of Oklahoma county should be affirmed.

It is so> ordered.

BAREFOOT, P. J., and DOYLE, J., concur.