text:
    JACK DAWSON v. STATE.
    No. A-10635.
    Dec. 18. 1946.
    (175 P. 2d 368.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant Jack Dawson was charged in the county court of Kiowa county with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $75 and costs, and has appealed.

Among the various assignments of error presented by the defendant, it is only necessary for us to consider the question as to whether the court erred in overruling the motion to suppress evidence-

The sheriff and two deputy sheriffs of Kiowa county went to the home of defendant for the purpose of searching for intoxicating liquor. Prior to going there, the sheriff had procured a search warrant, but upon arriving at the residence of defendant, he did not serve it, use it, or even advise the defendant that he had it. As to the above facts, there is no dispute.

The state contends that the defendant consented to the search of his premises and thereby waived any irregularity in the search.

The sheriff testified that he had searched the residence of defendant about six months before that date, but did not find anything. That when he prepared to leave, defendant had stated, “Come on any time you want to. You don’t have to have a search warrant.” That on the occasion in question, he wént to the front door of defendant’s home and knocked. That a lady who was visiting defendant and his wife opened the door and invited them in. That he inquired for the defendant and was told the defendant was in the bedroom. That he found defendant in bed and said to him, “Jack, I have come to look you over again,” and the defendant replied, “All right.”

The defendant testified at the hearing on the motion to suppress the evidence that when the sheriff said, “I have come out to look you over again,” that he replied, “Nothing I can do about it, I don’t guess, Mr. Dugan.”

For the purpose of disposing of the question as to whether the defendant by his conduct and words waived his constitutional rights guaranteeing his immunity against an unlawful search, we shall assume the truthfulness of the testimony of Sheriff Dugan.

It is the well settled rule that the finding of a trial court at a hearing on a motion to suppress the evidence will he sustained where there is disputed testimony as to the facts of the case, and there is sufficient evidence in the record to sustain the court’s finding. Here there is a dispute as to the facts, but assuming that the defendant’s words and conduct were as related by the sheriff, still we think that the court erred as a matter of law in ruling that such conduct and words of the defendant amounted to a waiver of his constitutional rights.

In the case of Hancock et al. v. State, 35 Okla. Cr. 96, 248 P. 1115, it was held:

“A statement by defendant, when officers delivered to him a search warrant, to ‘go ahead and search,’ did not waive defendant’s constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search premises, but rather as a statement of intention not to resist search under the warrant.”

To the same effect is the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109.

In the case of Shockley v. State, 35 Okla. Cr. 437, 251 P. 514, the officers had procured a search warrant for a search of the premises of defendant. The record is silent as to whether the officers advised the defendant that they had a warrant when they called on him at his premises. The officers testified that they went to where the defendant was about 100 yards east of his house, and told him, “We wanted to look this place over, and he said it was all right to go ahead, and we did.”

In disposing of that case this court held that the statement by the defendant “to go ahead” was insufficient to constitute a waiver of his constitutional rights. In the body of the opinion the court quoted from the case of Smith v. State, supra (34 Okla. Cr. 434, 246 P. 1111), as follows:

“There is much conflict of authority as to what constitutes a waiver of defendant’s constitutional rights in search and seizure cases. We think the rule supported by reason and the weight of authority requires the state, where objection .is properly made, to show that defendant waived his constitutional rights by freely and voluntarily consenting to the search. The right of the citizen to occupy and enjoy his home, however mean or humble, free from ■arbitrary invasion and search, has for centuries been protected by every court in the English speaking world, from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.

“The mere fact that a man is an officer whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.”

In Seick v. State, 57 Okla. Cr. 364, 48 P. 2d 355, it is stated:

“A statement by defendant, when officers delivered to him a search warrant, to ‘go ahead and search’, or words of similar import, did not waive defendant’s constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search premises, but rather as a statement of intention not to resist search under the warrant.”

In the instant case the officers had a search warrant. They should have served it on defendant and made a return to the court out of which it was issued showing what was found during the search. So far as we can see, the chief reason for officers not procuring a search warrant is because they do not want to make a return showing exactly the kind of property seized on the occasion of the search and deliver it to the court. Officers of the law are violating the law which they are sworn to uphold when they go into a man’s home and make an illegal search. As we view the record, the search was illegal, and the trial court should have sustained the motion to suppress the evidence obtained in the search.

This case is different from those cited by the state. The officers did not ask permission to search. They did not say “May we look you over,” or “Is it all right to search,” but instead according to the sheriff he said, “I. have come to look you over again.” This was an unqualified statement of an armed officer. Defendant did not know that he had a warrant. Defendant was placed in the position after this declaration of the sheriff of either resisting the search or making a statement that he would not resist the officers’ intention to look him over. The defendant testifies that he said, “There’s nothing I can do about it, I guess.” But assuming that he said “all right” in response to the sheriff’s declaration, still such response did not constitute a free and voluntary relinquishment and waiver of his constitutional right of immunity against an unlawful search, hut was rather an indication that he would not resist the officers in their declared intention “to look him over again.”

The judgment of the county court of Kiowa county is reversed.

BAREFOOT, 3., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    JOHN D. LINDE v. STATE.
    No. A-10585.
    Dec. 18, 1946.
    (175 P. 2d 370.)

      Herbert K. Hyde and Lee Williams, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

The attempted appeal in this case is from an order of the court of common pleas in Oklahoma county, overruling a motion filed by the defendant in a case in which he had been charged with the unlawful possession of intoxicating liquor .in said court. The case against the defendant is still pending and untried.

The facts surrounding this attempted appeal are as follows :

An officer, M. B. Cooper, on June 14, 1944, filed an affidavit in the office of Otis D. James, a justice of the peace of Oklahoma City, Oklahoma county, for the purpose of securing a search warrant to search the premises of the.defendant. On the same date a search warrant was issued and the officer to whom it was issued executed the search, and, on June 18, 1944, made the following return to the office of the justice of the peace:

“State of Oklahoma, Oklahoma County, ss.
“Received this writ this 14th day of June; 1944, and executed the same by arresting John D. Linde, Case No. 4083 and by seizing the following described property, the same being covered by this warrant, to-wit:
“Possession 64 pints tax pd liquor
“Warrant served on Mrs. John Linde on the 18th day of June, 1944, and by bringing said person and property before the court.
(Signed) “M. B. Cooper.”

Later, and on July 17, 1944, defendant filed in the office of the justice of the peace a pleading which was denominated “Plea of Intervention.” This pleading was as follows:

“Comes now John D. Linde, petitioner, and represents and shows to the court the following state of facts:
“1. That on the 14th day of June, 1944, one M. B. Cooper appeared before this Honorable Court and made and filed an affidavit and application for search warrant for a residence located at 1845 Northwest Eighth Street in Oklahoma City, Oklahoma; and on said date a search warrant was issued based upon said affidavit and application; copies of which affidavit and warrant are hereto attached, marked “Exhibit A & B” respectively, and made a part hereof.
“2 That thereafter, and on the 18th day of June, 1944, said search warrant was executed by the said M. B. Cooper making a search of said premises.
“3 Your petitioner further alleges and states that the said affidavit and application and said search warrant was and are unlawful and void, for the reason that said affidavit was based wholly upon information and belief, and was without any authority of law; that while said affidavit appears to be made upon positive allegations, that the said M. B. Cooper had no positive knowledge or information of any of the things therein alleged; and that the said search warrant and the search made thereunder as aforesaid are therefore wholly void, and constitute an unreasonable search and seizure in violation of the constitutional rights of this intervener.
“4 Your petitioner further alleges that he is employed in a substantial gainful occupation, having worked for one company for a period of ten years; that he is 33 years of age, and has never been arrested before in his life for any offense whatsoever; that he was the owner of said premises above described, and was and is living there with his wife as a bona fide resident and taxpayer of the city and county of Oklahoma; that said premises is not a place where intoxicating liqnors are sold or given away, and that the same is not a place of public resort where people congregate for the purpose of violating the prohibitory liquor laws of the State of Oklahoma.
“Wherefore, your petitioner prays that this court set this matter for hearing in accordance with the provisions of section 85 of Title 37 of the Oklahoma Statutes of 1941, at which the issues of facts herein raised shall be heard and determined, and that upon such hearing that this court shall determine that said search and seizure were and are unlawful and illegal, and that said search warrant and all proceedings thereunder be quashed, set aside and held for naught.”

The above plea of intervention was set for hearing on July 18,1944, and at that time the county attorney presented a demurrer to the plea, which is as follows:

“1 That the intervener, in his plea of intervention, does not claim any interest in any of the property or things seized.
“2. That the written plea of intervention does not state facts sufficient to constitute grounds for a hearing, in accordance with the provisions of section 85, Title 37, O. S. A. 1941.”

When the demurrer was presented, defendant asked leave to amend the plea of intervention by adding to paragraph numbered 2 the following: “And seizing therefrom approximately 64 pints of tax-paid liquor belonging to petitioner and which he had for his own personal use.” And by adding to his prayer: “And that said 64 pints of liquor be ordered returned to petitioner.”

The court allowed the amendments and the defendant again swore to the plea.

The court overruled the demurrer, and the county attorney dictated into the records a motion to dismiss the petition, as follows:

“Comes now the state of Oklahoma, ex rel George Miskovsky, County Attorney of Oklahoma County, and moves the court to dismiss the plea and amended plea of intervention filed herein on the ground that the plea of intervention shows on its face that the property seized is contraband goods, and was unlawfully in possession in violation of the laws of the state of Oklahoma, and that this court is without jurisdiction to determine whether the said whisky was lawfully in the possession of the petitioner, or unlawfully in his possession; that that is a matter to be determined by the criminal case now pending in the common pleas court in the state of Oklahoma against the defendant and intervener John D. Linde, and for the further reason that the intervener does not have the lawful right to show that the statements in the affidavit for a search warrant are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained at the time of the procuring of the search warrant.”

The justice of the peace overruled the motion to dismiss and then heard testimony offered by the petitioner in support of his plea of intervention.

Mr. Cooper, the police officer who made' the affidavit, testified with reference to the making of the affidavit, and the search of defendant’s premises, and the finding of the liquor as shown by the return. He was also permitted to testify as to the knowledge he had before making the affidavit, in an attempt by petitioner to show that the affidavit was made upon information and belief, and not upon facts known by the officer at the time he made the affidavit, and that the statements made in the affidavit were not true.

At tbe end of tbe bearing of testimony, tbe court made tbe following record:

“It will be the order of this court in this case that tbe search warrant herein complained of is lawful and legal, and that tbe plea of intervention of tbe petitioner, John D. Linde, be, and the same is hereby denied and that tbe affidavit and search warrant are legal and valid for all purposes made and provided in this action. It is so ordered by the court.”

Counsel for defendant filed an attempted appeal from the above order to the court of common pleas of Oklahoma county, where there was then pending an information filed by the county attorney of Oklahoma county charging defendant with the unlawful possession of the intoxicating liquor found as the result of the search of defendant’s premises as above stated.

Defendant, on September 7, 1944, filed in the court of common pleas a “Motion to consolidate cases, and to quash search warrant and suppress evidence.” This motion set up fully the proceedings heretofore stated, and concluded with the following prayer:

“Wherefore defendant prays that the said causes be consolidated and heard, and that said search warrant be quashed and the evidence seized by virtue thereof suppressed and the aforesaid cause No- 7546 be dismissed.”

The court permitted the consolidation plea, and heard evidence as had been done in the justice court, as to the knowledge of Officer Cooper at the time he made the affidavit. Both the affidavit and the search warrant were introduced in evidence.

After the completion of the hearing, the following proceedings were had:

“Mr. Tellegen: Comes now the state of Oklahoma and moves the court for a decision and judgment in favor of the State and against the Interpleader herein, for the reason that the procedure of the Interpleader is unauthorized by law, and is contrary to law; that Title 37, Section 85, O. S. 1941, provides for a hearing to determine whether or not the property seized under the search warrant in question was used in violation of the laws of the State of Oklahoma; that the instant ease is a civil appeal from the Justice of the Peace Court which issued the search warrant herein; that the Petitioner specifically prayed and asked for a hearing in accordance with the provisions of Section 85, Title 37, O. S. 1941; that the said provision does not provide for a procedure for determining the legality of the search warrant; that the affidavit for search warrant and warrant are valid and legal on their faces, and this court is without jurisdiction under the law to permit the Petitioner to show that the statements in the affidavit or complaint are not true, or to raise any question as to the accuracy of the source of the affiant’s information or means by which it was obtained, and that the court is without authority of law to cancel or withdraw or vacate the search warrant issued by the justice of the peace, which was introduced in evidence in this case. (Argument and discussion off the record; then) : The Court: The court is going to render judgment in favor of the State in this matter. Let the record show that the court renders judgment herein in favor of the State of Oklahoma and against the Inter-pleader, on the motion for judgment, without considering all of the reasons set forth in said motion. I think some of them are wrong. Mr. Williams: The court isn’t going to make any findings of fact or conclusions of law? The Court: No. Mr. Williams: Then, the defendant gives notice in open court of intention to appeal, and asks for time in which to make and serve a case-made. The Court: All right. Mr. Williams: I expect we ought to give an appeal bond. We gave one to this court. I don’t know whether that is sufficient or not. The Court: The defendant will be given and allowed 20 days from this date within which to make and serve a case-made on appeal, the State to have three days thereafter in which to suggest amendments, and the case-made to be signed and settled by the court on three day’s written notice by either side. The only appeal bond that the court will require will be a bond in sufficient amount to cover the costs, which would probably be about $50. Mr. Williams: That was, of course, the kind of bond we made in the justice court. The Court: Yes, sir. Mr. Williams: I expect we ought to make a new one. The Court: Te defendant is granted 20 days from this date to make and serve case-made, the state to have three days thereafter in which to suggest amendments, and the same to be settled and signed on three days’ written notice by either party. I expect you had better file a motion for new trial. You have three days in which to do that. Mr. Williams : I will do that, but I want to protect it both ways. The Court: Appeal bond is fixed in the amount of $50.

There was filed in this court, on November 29, 1944, a petition in error with case-made attached, setting forth the above proceedings. This attempted appeal from the order of the court of common pleas is now before us. Both the defendant and the state have filed briefs in support of their respective contentions.

It is the contention of the state that the appeal as here attempted is unauthorized and not provided for by the statute, and that the appeal should be dismissed. This is the question for consideration.

The procedure attempted to be followed by defendant is based upon Tit. 37 O. S. 1941, § 85, which is as follows:

“Upon the return of such warrant, as provided in (§ 84 of this Title), the judge or magistrate shall fix a time, not less than ten days, nor more than thirty days thereafter, for hearing of said return, when he shall proceed to hear and determine whether or not the property and things so seized or any part thereof, were used, or in any manner kept or possessed by any person within this state, with the intention of violating any of the provisions of this act. At such hearing any person claiming any interest in any of the property or things seized, may appear and be heard upon filing a written plea of intervention setting forth particularly the character and extent of his claim; but upon such hearing the sworn complaint or affidavit, upon which the search warrant was issued, shall constitute prima facie evidence of the contraband character of the property and things seized, and the burden shall rest upon the claimant to show, by competent evidence, his property right or interest in the thing claimed, and that the same was not used in violation of any of the provisions of this act, and was not in any manner kept or possessed with the intention of violating any of the provisions of this act. If, upon such hearing, no person shall appear as a claimant for any of the property and things seized, the judge or magistrate shall thereupon enter judgment of forfeiture in favor of the state without requiring or receiving any other evidence than that contained in the sworn complaint or affidavit upon which the search warrant was issued; if upon such hearing, any person shall appear as claimant to the property or things seized, or any portion thereof, the issue of fact thus raised shall be tried in the manner provided by law and judgment shall thereupon be entered accordingly.”

This is the first instance in which the procedure here attempted has been before this court. This section has always been considered as one having special application to property, and, being of a civil nature, appeals under this section have been to the Supreme Court, and not to the Criminal Court of Appeals.

In the case of State ex rel. Caldwell v. Hooker, 22 Okla. 712, 98 P. 964, 965, Chief Justice Williams of the Supreme Court said:

“In trials as to property rights under section 6, Art. 3, of the enforcing act (Laws 1907-08, p. 605, c. 69), claimants are entitled to the right of trial by jury.” (Same statute see Tit. 37 O. S. 1941 § 85.)

Tit. 37 O. S. 1941 § 85, supra, should be construed in connection with section 84 of the same title, the preceding section, which provides for the procurement and issuance of search warrants in liquor cases. Section 85, supra, provides :

“* * * when he shall proceed to hear and determine whether or not the property and things so seized or any part thereof, were used, or in any manner kept or possessed by any person within this state, with the intention of violating any of the provisions of this act.”

This is the sole purpose of the hearing. It does not provide a procedure as here attempted to attack the sufficiency of the affidavit and application for the search warrant. There was no statutory provision authorizing an appeal from the order of the justice of the peace to the court of common pleas, or to this court from the order of the court of common pleas, in so far as the seizure of intoxicating liquor is concerned. Section 85, supra, does not provide for an appeal from such orders to this court- A criminal case was filed in the court of common pleas as a result of this search. Defendant had the right to file a motion to suppress the evidence and thus test the legality of the search warrant and in case of an adverse ruling and a conviction he had the right to appeal to this court, and any error in the ruling as to the legality of the search warrant could then have been corrected. This has always been the procedure followed under these statutes. It has been the uniform holding of this court that the truth of the affidavit to procure a search warrant, positively sworn to, is not an issue in the trial of a case in which evidence procured by search warrant is offered. Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Blair v. State, 55 Okla. Cr. 280, 29 P. 2d 998; Harris v. State, 56 Okla. Cr. 105, 34 P. 2d 289; Luther v. State, 80 Okla. Cr. 252, 158 P. 2d 481; Medley v. State, 81 Okla. Cr. 242, 162 P. 2d 881.

The procedure attempted to be followed in the instant case is a clear-cnt reason why the construction contended for by defendant should not be given to the statute above quoted. The search warrant was issued on June 14, 1944, and executed soon thereafter. Sixty-four pints of intoxicating liquor were found and defendant was charged with the illegal possession thereof in the court of common pleas of Oklahoma county. By the filing of the motion of intervention, and appealing therefrom, the original case against the defendant has not been tried and no final judgment or order has been rendered thereon, from which an appeal can be taken to this court. Such a procedure as this would make a farce of the statute, and delay trials of the main issue involved by reason of the search and finding of the intoxicating liquor. We do not believe it was the intention of the Legislature that this procedure should be followed.

We are of the opinion that the order made by the court was not a final order from which an appeal will lie to this court, and this appeal should, therefore, be dismissed and the court of common pleas of Oklahoma county should proceed with the trial of defendant on the charge pending against him in said court.

It is therefore ordered that the attempted appeal herein be, and the same is hereby dismissed, for the reasons hereinbefore stated.

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


text:
    Ex parte CECIL HARRIS.
    No. A-10752.
    Jan. 8, 1947.
    (176 P. 2d 508.)
    Prank Leslie, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Cecil Harris, lias filed in this court a petition for habeas corpus, alleging that he is unlawfully and illegally restrained of his liberty by the Honorable R. B. Conner, warden of the State Penitentiary, at McAlester.

Petitioner alleges that his restraint is illegal and unauthorized, in that he has fully paid his debt to society by serving all of the time required by the statutes under two sentences of the district court of Tulsa county, and that there is no valid cause or reason why he should be further detained.

Petitioner was charged in the district court of Tulsa county with the crime of robbery with fire arms in two separate cases, Nos. 6314 and 6331. He was convicted in each case, and on September 23, 1933, was by the same court, and at the same time, sentenced to serve a term of 25 years in case No. 6314, and a term of 15 years in case No. 6331. The journal entries of that date did not show that the judgments and sentences were to run concurrently. The petitioner was received at the penitentiary to serve said sentences.

On November 4, 1941, and after petitioner had served enough time to satisfy the sentence of 15 years in case No. 6331, he was dressed in to serve the sentence of 25 years in case No. 6314. He filed a petition in the district court of Tulsa county, praying that an order be entered nunc pro tunc in case No. 6314, to correct the original journal entry in said ease, to show that through error or misunderstanding, the journal entry failed to provide and show that the judgments and sentences entered in the two cases, Nos. 6314 and 6331, were to run concurrently. A hearing was had on this petition before the district court of Tulsa county, and petitioner was represented by Ms counsel, the Hon. C. F. Gowdy, and the state was represented by the assistant county attorney, Hon. M. S. Simms. On November 4, 1941, the following order nunc pro tunc was entered and filed in the district court of Tulsa county:

“Be it remembered that on this 4th day of November, 1941, the same being one of the court days of this court; the above entitled and numbered case comes on for hearing upon the application of the defendant, Cecil Harris, for an order nunc pro tunc herein correcting the judgment heretofore rendered in this case, No. 6331, to run concurrently with judgment No. 6314, State of Oklahoma vs. Cecil Harris; the state being represented by M. S. Simms, Assistant County Attorney and the defendant by his attorney, C. F. Gowdy; the court examines the files and the application for an order nunc pro tunc to correct the judgment rendered in case No. 6331, to read: ‘To run concurrently with judgment in case No. 6314’; and the court, in open court, having heard the evidence and being advised by the Honorable Thomas D. Lyons, the former District Judge who presided in the original proceedings who stated to the court that it was the intention of the court at the time the two judgments were rendered, that the judgment 6314 and 6331 against the defendant Cecil Harris, be served concurrently ; and the court being fully advised and being satisfied that through error or mistake the judgment No. 6331, failed to provide that it run concurrently with No. 6314 and it appearing that the proceedings are regular and that said mistake should be corrected.
“It is therefore ordered, adjudged and decreed by the court that the judgment No. 6331 against the defendant Cecil Harris, heretofore entered on the 23rd day of September 1933 be corrected as of the 23rd day of September 1933 to provide that the sentence of fifteen years therein provided run concurrently with judgment No. 6314 entered against the said defendant at the same time, to-wit; the 23rd day of September 1933 which said sentence No. 6314 provides for a sentence of twenty-five years. The terms of each sentence to begin from the date of delivery to the War•den of the Penitentiary.”

The record reveals that no appeal was taken from the judgment entered in the nunc pro tunc order.

The state contends that the district court of Tulsa county did not have a right to enter a judgment nunc pro tunc to correct the original judgment entered as heretofore stated. This contention is denied by petitioner, who also contends that no appeal having been taken from the judgment entering the order nunc pro tunc, that the same cannot be questioned. This constitutes the issue here involved. The state has briefed the first proposition but not the second ; the defendant has briefed the second proposition but not the first.

The general rule with reference to the entering of nunc pro tunc orders, recognized by all the authorities, is that it is an order to correct the entry of an order previously made not speaking the truth as to what was actually done, or to make a record of what was previously done by the court and not then entered, especially where the result will be to effect or perfect an entry which should have been made as a matter of course and as a legal duty to prevent injustice.

In 42 C. J., p. 536, § 223, it is stated:

“Clear and satisfactory evidence of a previous order is necessary. While there is authority to the effect that an order may be entered nunc pro tunc on parol evidence if it is clear and sufficient, the rule, sustained by decisions in some jurisdictions, is that an order should be entered nunc pro tunc on written evidence only, and that the best evidence is some memorandum, minute, or other data of record or in the authentic files of the cause. Where an issue of fact as to the passage of an order is involved in a motion to enter it nunc pro tunc, the court should decide such issue without the intervention of a jury. And where the evidence was conflicting as to the original passage of an order, the appellate court will not control the discretion of the lower court in refusing to allow its entry nunc pro tunc.”

It is a further recognized general rule that an application for a nunc pro tunc order is not barred by the statute of limitations, where no intervening rights have been affected, although a lapse of time may call for closer consideration and stronger testing showing that the order was in fact made.

In 42 C. J., p. 537, § 225, it is stated:

“A nunc pro tunc entry of an order relates back and operates to make the order effective as of the date when it should have been entered; but it cannot so operate as to give force to a prior order void for want of jurisdiction. An order entered nunc pro tunc must be respected and enforced the same as if it had been entered when made. An order entered nunc pro tunc is record evidence of the facts stated therein, and like other records is conclusive and indisputable, and is not open to collateral attach by a party to proceedings because not made upon sufficient evidence or because of erroneous findings of fact or because not supported by the findings of fact. But while a nunc pro tunc order is retroactive, the court may look to it as of the date of the entry to ascertain the particulars in which is varies from the former order and, if variant, determine from it the. actual facts therein recited.”

Applying the above principles of law to the facts in the instant case, we find that the application for the order was made before the district court of Tulsa county to correct the journal entry of a judgment rendered in that court. Both the state and defendant were represented at that hearing, and testimony was taken. This testimony does not appear in the record, but reference is made to a part of the testimony and to the fact that the court reporter who took the same was dead and his notes could not be read. It also reveals in the order nunc pro tunc that the judge to whom the application was made interviewed, or took the testimony of the judge who tried the cases and signed the journal entries, and that he stated it was the intention at the time the judgments were entered that they should run concurrently. It appears that the clerk, by mistake or inadvertence, failed to place in the judgment, the order of the court to the effect that the judgments or sentences in the two cases should run concurrently.

It will be noted that in the citation from Corpus Juris above quoted, it is said:

“An order nunc pro tunc is record evidence of the facts stated therein, and like other records is conclusive and undisputable, and is not open to collateral attack by a party to proceedings because not made upon sufficient evidence.”

The case of Courtney v. Barnett, 65 Okla. 189, 166 P. 207, 209, by the Supreme Court of this state, is cited to support this statement. It is there said:

“The plaintiff appeared and was represented by counsel at the hearing of the application to make the nunc pro tunc order. No appeal was taken from said order, and we conclude that such order is binding upon the plaintiff and effective, notwithstanding that the court may have committed error in making it. If the evidence was insufficient to justify the court in making the order, the plaintiff could have secured a review of such evidence by an appeal; not having appealed, we conclude that the plaintiff cannot now impeach such order collaterally in this cause.”

Just so in the instant case. Both the state and the defendant were present at the time the order nunc pro tunc was entered. The court had jurisdiction of the parties, and the subject matter. A full hearing was had and the order was entered. Under this state of facts, this court will not set aside this order. For all we know, other testimony may have been heard by the court at the time of making the order, and this being a final order from which no appeal was taken, we are of the opinion that the order entered by the district court of Tulsa county was a valid order.

From the above statement, it becomes unnecessary to pass upon other questions presented.

It is therefore ordered that the Warden of the State Penitentiary give the defendant Cecil Harris credit on his 25 year sentence in case No. 6314, from the 25th day of September, 1933, the time of his entry into the State Penitentiary, and if he has served sufficient time from that date to satisfy the judgment and sentence, that he be discharged ; otherwise that he be held a sufficient time to complete said sentence.

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


author: JONES, P. J.

text:
    JOHN TOM DENNARD v. STATE.
    No. A-10640.
    Jan. 8, 1947.
    (176 P. 2d 831.)

      Eobt. E. Eittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. H. Johnson, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

John Tom Dennard was convicted in the court of common pleas of Oklahoma county of the offense of illegal possession of intoxicating liquor, was sentenced to serve 30 days in the county jail and pay a fine of $50 and has appealed.

The only issue presented by the appeal is whether the evidence is sufficient to sustain the conviction. The sole witness who testified for the state was Jack Caldwell, a police officer of Oklahoma City. He testified that on December 12, 1944, he and another officer went to the premises located at 424 Northeast Tenth street in Oklahoma City to meet with an attorney in another case to observe the location of some trees which had become a point of controversy in a lawsuit. Caldwell testified that while making the examination he walked by a Chevrolet coupe automobile parked in front of the house at that address. That as he passed the car, he saw therein an open zipper bag with one quart of I. W. Harper whisky exposed to view. That he saw the defendant Dennard at the rear of the house where he was engaged in the business of delivering liquor. That Dennard had the keys to the car in his possession. That he was well acquainted with the automobile and had seen the defendant Dennard driving it on other occasions, although he thought the automobile belonged to one Virgil McCann. That McCann was engaged in the whisky business, and Dennard worked for McCann.

That when he saw Dennard he told him, “John, come on; let’s go.” That the defendant Dennard got into the car with him, and after he had gotten into the car Dennard said eight pints of liquor was all that he had in the car. That they searched the car and found six pints and one quart of whisky. That the defendant had the keys to the car, and when they went to the car he got under the steer-in wheel, put the keys in the ignition and turned it on. That defendant further asked the police officer to check the labels on the whisky so that he (the defendant) could make a report as to how many were green labels and how many were red labels.

The defendant testified in his own behalf that he did not have the keys to the car in his possession; that he did not own the automobile, and that he did not know whose whisky it was in the car. On cross-examination he testified that he worked for Virgil McCann. In response to the question as to whether he told Officer Caldwell that eight pints of liquor was all that he had in the car, he said:

“I told him, I said, Jack, count that whisky because there is so many reds and so many greens in it, you know that has to be turned in. He said, ‘All right.’ I didn’t say nothing to him about how many was in it or anything about the whisky at all until we got to the police station.”

He further testified:

“Q. Did you ever drive that car before? A. Yes, sir. Q. Drive it any time before on that day? A. Yes, sir. Q. How long have you worked for Virgil McCann? A. Oh, about seven months, something like that.”

Virgil McCann has been one of the most persistent violators of the liquor laws of the state to which our attention has been directed. In recent months there have been ten appeals lodged in this court from convictions which he has sustained. In nine of them the convictions were affirmed, while one of them is still pending. McCann v. State, 74 Okla. Cr. 388,126 P. 2d 559; McCann v. State. 75 Okla. Cr. 216, 130 P. 2d 108; McCann v. State, 82 Okla. Cr. 297, 169 P. 2d 219; McCann v. State, 82 Okla. Cr. 301, 169 P. 2d 221; McCann v. State, 82 Okla. Cr. 303, 169 P. 2d 222; Mc-Cann v. State, 82 Okla. Cr. 370, 170 P. 2d 561; McCann v. State, 82 Okla. Cr. 374, 170 P. 2d 562.

Counsel for defendant cites several cases decided by this court wherein we held that where the state relies wholly on circumstantial evidence, the circumstances relied upon, when considered together, must point clearly to the guilt of defendant and exclude every other reasonable hypothesis than that of guilt, and that where the circumstances amount to no more than mere suspicion of guilt, the conviction should not be allowed to stand.

We still strongly adhere to these rules of law. However, as we view the record, the circumstances relied upon by the state point clearly to the guilt of defendant and amount to more than mere suspicion.

Also, it is well to note that the State of Oklahoma did not rely solely on circumstantial evidence. The statement of defendant that he had eight pints of whisky in the car is direct evidence of defendant’s guilt. The proof further establishes the following circumstances:

(1) The defendant was in back of the house, in front of which the automobile was parked and thus in the immediate vicinity where the liquor was found.
(2) He had the keys to the automobile in his pocket.
(3) He had previously been seen driving the automobile.
(4) He testified that he had driven the automobile on that day.
(5) He told the officer that eight pints of whisky was all that he had in the automobile.
(6) He asked the officers to count the liquor to see how many red and green labels there were so that he could make a report.
(7) When the officer directed him to go with him to the police station, he silently acquiesced, neither protesting his innocence nor asking why he should accompany the officer to the police station.

The extrajudicial statement of defendant wherein he admitted possession of the liquor found in the automobile strongly supported his conviction.

In Hopkins v. State, 75 Okla. Cr. 268, 130 P. 2d 543, 544, it is stated:

“The finding of 390 pints of whisky in unoccupied automobile and extrajudicial statement by defendant that automobile and whisky belonged to him held sufficient to support conviction.” See also Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.

The circumstances, together with the admissions of the defendant, were sufficient to make a prima facie case of guilt. The conflict of evidence created by the testimony of defendant denying his guilt made an issue for the determination of the jury. The jury’s finding in such a situation will be upheld on appeal.

The judgment and sentence of the court of common pleas of Oklahoma county is accordingly affirmed.

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


author: BAREFOOT, P. J.

text:
    MARK LEER v. STATE.
    No. A-10627.
    Jan. 15, 1947.
    (176 P. 2d 512.)
    Tolbert, Gillespie & Cunningham, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jesse L. Pullen, Asst. Atty. Gen., and Raymond T. Plumlee, County Atty. of Washita County, of Cordell, for defendant in error.
   BAREFOOT, P. J.

Defendant, Mark Leer, was charged in the county court of Washita county with the offense of unlawfully conveying intoxicating liquor, to wit: One pint of whisky. He was tried, convicted, and sentenced to pay a fine of $100, and to serve 30 days in the county jail, and has appealed.

The charging part of the information is as follows:

“That on said day and date, in the county and state aforesaid, the said Mark Leer did, unlawfully wilfully and wrongfully, transport certain intoxicating liquor, to-wit: one pint of whisky, from some point within the state of Oklahoma unknown to informant to a point on Oklahoma State Highway Number 55 about one and one-half miles west of the town of Rocky, Oklahoma, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State.”

The following facts are revealed by the record: On September 29, 1943, R. E. Skelly and his son Hervey were at their farm home about one and three-quarter miles west of the town of Rocky, in. Washita county. Their home was upon Highway No. 55, which runs east and west. On the date stated, they heard a noise on the highway and saw a cloud of dust about a quarter of a mile east of their home. They immediately went to the scene, and found an automobile in the ditch, and the defendant seated in the ear. Defendant appeared to be injured, and R. E. Skelley proceeded to a nearby residence to telephone for a doctor. He returned to the scene, and he and his son got the defendant out of the wrecked car, found that he was not seriously hurt, and took him to town.

The witness R. E. Skelley testified that he at no time saw any intoxicating liquor, either in the car or upon the defendant. The son, Hervey Skelley, testified that after his father went to telephone for the doctor, he opened the door of defendant’s automobile, and a pint bottle which he supposed contained whisky was on the floor of the car near the door, and he thought it was going to fall out on the ground. He picked the bottle up and put it in the weeds near the automobile.

After taking the defendant to the doctor, Heryey SkeL ley telephoned the Highway Patrol to report the wréck. When the patrolman came, he showed him the whisky, and the patrolman took possession of it. It was later turned over to the sheriff of Washita county. The sheriff did not visit the scene of the wreck, but testified that the liquor, which was introduced in evidence, was turned over to him by the highway patrolman. The patrolman did not testify.

Both R. E. Skelley and Hervey Skelley testified that the automobile was standing still when they saw it, and they never at any time saw it in motion, or move from one point to another. Both testified that they could detect the odor of liquor on the breath of defendant.

The above constitutes all of the testimony of the state, and the defendant did not take the witness stand, and did not offer any evidence.

Defendant presents ten assignments of error, but argues them under three heads. First, that the verdict of the jury was not sustained by the' evidence, and that the court erred in refusing to sustain a demurrer to the evidence. Second, that the court erred in admitting incompetent and irrelevant testimony. Third, that the closing argument of the county attorney was prejudicial to the rights of defendant, and constituted reversible error.

To support his first contention, defendant cites the following cases: Wicker v. State, 47 Okla. Cr. 358, 288 P. 398; Lee v. State, 62 Okla. Cr. 204, 70 P. 2d 1111; Vassar v. State, 36 Okla. Cr. 223, 253 P. 517; Bogard v. State, 40 Okla. Cr. 12, 266 P. 517: Davis v. State, 38 Okla. Cr. 39, 259 P. 172; Brown v. State, 18 Okla. Cr. 509, 196 P. 967.

The state cites Yeargain v. State, 76 Okla. Cr. 50, 134 P. 2d 142, and McAfee v. State, 70 Okla. Cr. 116, 104 P. 2d 979.

The cases cited by defendant go a long way in supporting his contention. The cases cited by the state do not touch the issue here involved.

The case of Brown v. State, supra (18 Okla. Cr. 509, 196 P. 968), is not exactly in point, as the allegations in the information were somewhat different, but it is there stated:

“In this case the Attorney General has filed a written confession of error, admitting that the material allegation of the information that the liquor was conveyed ‘from a point on the north line of said Logan county’ is not sustained by the evidence, and for that reason that this judgment Should be reversed. From what has heretofore been stated in this opinion, the conclusion is reached that the confession of error of the Attorney. General is well founded, and that the judgment of conviction should be reversed. The defendant may be guilty of the offense charged, but a conviction based on surmise and suspicion of guilt should not be permitted to stand. Otherwise, the liberty of the innocent citizen would be jeopardized.”
“It is to be regretted that the county attorney of Logan county did not elect to prosecute this defendant for unlawful possession of intoxicating liquor, instead of the unlawful conveyance in the manner charged, as the evidence clearly establishes his guilt of the former crime. But this court is powerless to affirm a conviction for one offense, where the proof establishes guilt of another and separate offense, not included within the charge.”

And in Lee v. State, supra, the court said:

“The evidence of the state shows that a party living near Lone Wolf, in Kiowa county, drove into Hobart and advised the officers there was a car out on the road, with a man in the car; the officers drove out on the road and found the car by the side of the road with the defendant in the car; the officers say they stopped and asked the defendant what was the trouble and defendant replied he could not get his car started, and that the officer got out of his car and tried to start the car and could not, and Joe Walker, another officer, got out of the car he was in and tried to start the car, and in doing so he struck his foot against a sack in the car and discovered it was filled with fruit jars containing whisky. The officers arrested the defendant and put him in jail.
“Both the officers admit that from the time they first saw the car and defendant and took him into custody and brought him to town, the car which the defendant was in when they first saw him was not moved. There is not a word in the testimony showing that the defendant moved the car from where the officers first saw it until he was arrested. The charge in this case is transporting intoxicating liquor. The foregoing is in substance all of the state’s evidence. Wicker v. State, 47 Okla. Cr. 358, 288 P. 398.
“The charge being transporting intoxicating liquor, and there being no evidence in the record to support the verdict, the same is reversed.”

The statute, 37 O. S. 1941 § 1 et seq., which prohibits conveying intoxicating liquor from one point or place in the state to another is probably the most drastic statute in the enforcement law. It is not incumbent upon the state to prove “intent” to violate the law when so charged, and the simple act of transporting from one point to another constitutes a technical violation of the statute. This applies to one point in a city or town to another point therein, or from one point on the public highway to another point thereon. With this rigid law the statute should be strictly construed to the end that innocent persons may not suffer by its application, and the state should be required to prove the material allegations of the information.

In the instant case, the amount of liquor found was very small. It was not on the person of defendant, but one witness testified that it was in the car. He was unable to identify the bottle introduced in evidence. There was some conflict as to whether the seal on the bottle had been broken. The patrolman who was supposed to have recovered the whisky did not see it in the automobile, and did not testify in the case. Of the two witnesses who released the defendant from the wreckage, one did not see the whisky at all, and neither of them saw the car move at any time.

Taking all of the evidence and circumstances into consideration, we are of the opinion that they were insufficient to sustain a conviction for the unlawful transportation of intoxicating liquor from a point in the state, unknown to the state, to another point therein.

It becomes unnecessary to discuss the other assignments of error argued by the defendant. '

For the reasons hereinbefore set out, the judgment and sentence of the county court of Washita county is reversed, with directions that the defendant be discharged.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    Ex parte ELMER COLLINS.
    No. A-10815.
    Jan. 15, 1947.
    (176 P. 2d 507.)

      Elmer Collins, pro se.
    Mac Q. Williamson, Atty, Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein tbe petitioner, Elmer Collins, seeks to secure bis release from confinement in tbe State Penitentiary at McAlester.

The Attorney General has filed a demurrer to the petition calling our attention to tbe fact that in tbe cases of Ex parte Collins, 76 Okla. Cr. 163,135 P. 2d 61, Collins v. State, 59 Okla. Cr. 18, 55 P. 2d 790, and Ex parte Collins, 79 Okla. Cr. 193, 153 P. 2d 243, tbe exact contention now presented by petitioner was in each of these cases considered and decided adversely to petitioner.

Attached to the verified petition is a photostatic copy of the judgment and sentence pronounced against the defendant wherein the judgment erroneously recites that the jury found defendant guilty of “assault with intent to rape” and fixed his punishment at imprisonment in the State Penitentiary for 37 years. Of course, if the defendant has been found guilty of assault with intent to commit rape, the maximum punishment that could have been assessed would have been five years imprisonment in the State Penitentiary. 21 O. S. 1941 § 681.

However, as shown by the record of the appealed case, Collins v. State, supra, the defendant was charged by information filed in the district court of Muskogee county of attempted rape in the first degree by the use of force and violence. The trial court instructed the jury that if they should find the defendant guilty of attempted rape as charged in the information, they should fix his punishment at any term in the State Penitentiary not exceeding one-half of the longest term of imprisonment fixed for the crime of rape in the first degree. The jury was further advised that rape in the first degree is punishable by death or imprisonment in the State Penitentiary for any term not less than 15 years.

In Collins v. State, supra, the question of the amount of punishment that could be assessed the defendant under the verdict of the jury was discussed at length. The facts of the case showed an extremely aggravated assault by the defendant, a negro, upon a young white woman school teacher.

The commitment in the hands of the warden of the State Penitentiary should be corrected to recite that the crime for which the petitioner is imprisoned in the penitentiary is attempted rape in the first degree and not that of assault with intent to rape.

This court has consistently held that were the defendant is represented by counsel, is tried and convicted, perfects an appeal to this court and the judgment and sentence of the lower court is affirmed, it will not later entertain a petition for a writ of habeas corpus on the same ground or grounds existing at the time of the appeal or any other grounds which should have been called to our attention by the appeal. In re Booth, 74 Okla. Cr. 406,126 P. 2d 75T; Ex parte Baker, 76 Okla. Cr. 396, 137 P. 2d 242.

The demurrer of the Attorney General is sustained, and the writ of habeas corpus is denied.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    ROBERT LAWSON HOVIS v. STATE.
    No. A-10643.
    Jan. 22, 1947.
    (176 P. 2d 833.)

      Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    • Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant Robert Lawson Hovis was charged in the district court of Oklahoma county by information with the crime of manslaughter in the first degree, was tried, convicted of manslaughter in the second degree, with the punishment left to the court. After motion for new trial was overruled, the defendant was ordered to serve a term of two years in the penitentiary and has appealed.

The defendant was the owner of the Jack Pot beer tavern in Oklahoma City. On the night of June 2,1944, he shot and killed one Olan Cowan at his place of business. The killing was admitted, but defendant entered a plea of self-defense.

The only contention presented by the appeal is that the evidence is wholly insufficient to sustain the conviction.

There are not many points of dispute in the evidence of the state and the defendant. The undisputed testimony was that the deceased together with one Buster Martin and Buck Enloe had been drinking beer on the afternoon of June 2nd at two or three different beer taverns in Oklahoma City. About 5 p. m. they went to the Jack Pot beer tavern operated by the defendant, but the defendant refused to permit Buck Enloe to come into his tavern. (State’s testimony denied by defendant was that the defendant pulled a pistol and told Enloe that he Avas going to whip him and refused to allow him to enter.) After this controversy, the deceased and Buster Martin took Enloe to his home, and Martin and Cowan later in the evening returned to defendant’s beer tavern. The defendant at that time had retired to a bedroom in the back of his tavern to sleep. Martin and the deceased, Olan Cowan, were quarrelsome with some of the patrons of the beer tavern and almost had a fight with one of them. A waitress employed by the defendant intervened in a dispute between the deceased and one of the patrons and deceased slapped her. He and Buster Martin then left the tavern.

The witness Buster Martin testified that after he and the deceased left the tavern they noticed that the deceased had lost his cap, and they started back to the tavern to get it. That just as they reached the screen door and opened it, the defendant told them they could not come in. Martin said that they were coming in, and when they started in the defendant raised his gun and shot the deceased, killing him almost instantly. That the defendant then pointed his pistol at Martin and said he was going to kill him, but Martin said, “Happy, you done killed one man,” to which the defendant replied, “I don’t give a damn. I will kill another one.” That when this was said, the witness Martin fled.' Martin further testified that neither he nor the deceased were armed at the time oí the shooting, and they were not making any effort to harm the defendant. The deceased, Olan Cowan, was 22 years of age, and not a very large man.

The state then introduced in evidence certain pictures taken on the inside and outside of the beer tavern. These pictures were taken the day following the homicide. One of these picture shows the bloody spot on the porch of the tavern where the deceased lay immediately after he was shot. This photograph was introduced in evidence by the state to substantiate their theory that deceased was standing outside the door when he was shot. This evidence was for the purpose of refuting the testimony on behalf of defendant that the shooting occurred inside at a time when the deceased was threatening him with a quart-sized beer bottle. There was also admitted in evidence a photograph taken of the deceased after his death which showed the entry of the bullet above and to the back of the right ear, which bullet emerged above the left eye. This photograph was offered in evidence to support the state’s theory that the deceased was not facing defendant when he was shot.

Buck Enloe testified that he went to the Jack Pot tavern with Olan Cowan and Buster Martin about 5:30 p. m. on June 2nd. That when they drove up in front of the tavern, the defendant came up to the side of the car with a gun in his hand and said he was not going to allow the witness Enloe to enter the tavern. The deceased Olan Cowan then took Enloe to his home. Enloe admitted on cross-examination that he and the deceased had been to several places that afternoon drinking beer, and that the witness was under the influence of intoxicating liquor when he went to defendant’s place of business.

James Parmer, Alvin Smith, Yesta Smith, C. T. Smith and C. D. Roberts, who were inside the tavern drinking beer at tbe time of tbe homicide, testified to substantially the same facts on behalf of defendant. That the deceased Cowan and Buster Martin came into the Jack Pot tavern about 9 p. m. That Buster Martin walked over to a table where the patrons were drinking beer and spoke to James Parmer and said to him, “I can whip you.” That Martin then went back to where Cowan was drinking beer, and shortly thereafter Cowan walked over to the booth and gave Farmer a shove. That Ada Parks, a waitress at the tavern, intervened and said they could not fight in there. Whereupon the deceased struck her a blow causing her to stagger across the room against the bar. The patrons of the tavern testified that Martin and Cowan then left and were gone about five minutes when they returned. That during the time they were gone, the defendant was awakened and told what had occurred.

The defendant did not take the witness stand, but Ada Parks, a waitress at his tavern, testified to substantially the state of facts as testified to by the patrons of the tavern. In addition, she testified that when the deceased and Martin returned the second time, the defendant was awakened and came out of his bedroom inside of the tavern behind the counter. That Martin and the deceased started fighting Hovis and calling him all kind of names. That the defendant ordered them to leave, but instead of leaving, the deceased and Martin only fought the defendant a little harder; that the deceased and Martin started throwing empty quart beer bottles at the defendant. That defendant said, “Boys, you better stop crowding me,” but that the two boys kept on fighting him, and defendant reached behind the counter and got his pistol. That defendant had the pistol by the barrel and was trying to ward off licks from the beer bottles with it. That the deceased reached to get another bottle, and when he did, the defendant threw his hand up to ward off a blow, and the gun went off accidently and the boy fell. That just before the deceased was shot, the defendant fired a shot over the heads of the boys to try to scare them, but that the deceased and Martin refused to leave and kept on cursing the defendant and fighting him. Ada Parks was corroborated in most of her testimony by the witness Lois Weaver, who was sitting at the booth with James Parmer and the Smith family.

The conflicting evidence presented by the state and the defendant concerned mainly as to what happened at the beer tavern when Martin and the deceased Cowan returned the second time on the night of the homicide, and whether the slaying occurred inside or outside of the tavern. If the jury had believed that the killing occurred in the manner testified to by Ada Parks, they would have been justified in returning a verdict of not guilty. They could have concluded, if they had believed the testimony of defendant’s witnesses, that defendant had adequate provocation to have fired the fatal shot in self-defense.

Under the law the defendant had a right to order the deceased from his premises and to prevent a trespass by him on the premises, but he was not authorized to defend his premises against an unlawful entrance by taking a human life, however, if the trespasser was not attempting a felony. In such cases, the property owner must suffer the trespass and seek redress at the hands of the law rather than commit homicide. Schmitt v. State, 57 Okla. Cr. 102, 47 P. 2d 199; Johnson v. State, 59 Okla. 283, 58 P. 2d 156.

In Schmitt v. State, supra (57 Okla. Cr. 102, 47 P. 2d 210), this court said,

“Construing this section in Jackson v. State, 49 Okla. Cr. 337, 293 P. 567, 568, it is held:
“ ‘A person may resist a trespass on real property in Ms possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.’ And see Garrison v. State, 19 Okla. Cr. 3, 197 P. 517.
“In the Dickinson Case (Dickinson v. State, 3 Okla. Cr. 151, 104 P. 923) cited, this court said:
‘A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner to use a dangerous or deadly weapon to resist the trespass. * * * The putting in use of a deadly weapon shows a wanton disregard of human life! Clark in his work on Criminal Law, at page 145, lays down the proposition in this terse and explicit language.
“ ‘ “A person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life; but, if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property, and seek redress at the hands of the law, rather than commit homicide.” ’
“In the case of Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046, syllabus 2, this court said:
“ ‘A landowner is not justified in making an assault upon another with a dangerous or deadly weapon in resisting a trespass on his premises, when no felony is attempted.’ ”
In Johnson v. State, supra (59 Okla. Cr. 283, 58 P. 2d 157), it is stated:
“A person has the right to use necessary and sufficient force to defend his habitation from unlawful entrance, or to prevent a trespass on tlie premises, provided no undue advantage is taken nor any dangerous weapon used.”

In the case of State v. Gallagher, 4 Wash. 2d 437, 103 P. 2d 1100, it is stated:

“Accused’s killing of deceased by the use of more force than was necessary in attempting to expel deceased from accused’s home would constitute ‘manslaughter’, in the absence of justification or excuse.”

22 O. S. 1941 § 745 provides:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving-circumstances of mitigation, or that justify or excuse it, devolves upon him,- unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

In this case, the killing of deceased is admitted. The proof of the state did not show that the defendant was justified in taking the life of the deceased. When the defendant under this statute seeks to prove circumstances of mitigation or that justify or excuse his act, it generally raises an issue of fact for the determination of the jury.

In the case of Jones v. State, 20 Okla. Cr. 233, 202 P. 187, it is held:

“Where the circumstances proven on the part of the state reasonably tend to show that the accused perpetrated, or may have perpetrated, the fatal acts in self-defense, and where the homicide is admitted or proven, there is no shifting of the burden of proof from the state to the accused. * * *
“(a) Under such circumstances, even though the evidence on the part of the state indicative of the guilt of the defendant may not be convincing, if there is any substantial evidence tending to prove the guilt of the accused, that question is properly for the jury, and a demurrer to the evidence, under such circumstances, is properly overruled.”

The deceased and Martin were certainly acting improperly at the defendant’s tavern. Their words and general conduct were very provocative. The defendant was authorized to evict them from his premises. Under the state’s evidence, the deceased was doing no more than uttering abusive language and thréatening to fight when slain. He and his companion were both unarmed. According to the state’s evidence, the deceased had returned to the tavern to secure a cap which he had left. Human life is a precious thing. Once taken, it cannot be restored. It appears to us that the jury acted in a reasonable manner when they concluded that the defendant was not justified in taking the life of the deceased to prevent a threatened breach of the peace or trespass on his premises.

No question has been raised concerning the correctness of the instructions which were given, and we have found no error in the record sufficient in importance to justify us in concluding that the defendant was not granted a fair and impartial trial.

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

BAREFOOT, P. J., and BRETT, J., concur.


text:
    HERON WESLEY CALLICOTT v. STATE.
    No. A-10655.
    Jan. 22, 1947.
    (176 P. 2d 837.)

      O. A. Brewer, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Ralph K. Jenner, County Atty. of Choctaw County, of Hugo, for defendant in error.
   BAREFOOT, P. J.

Defendant, Heron Wesley Callicott, was charged in the county court of Choctaw county with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $1 and costs, and has appealed. ,

This appeal was filed on June 20, 1945, but the defendant has failed to file a brief herein, and made no appearance at the time the case was assigned for oral argument. The Attorney General has filed a motion to advance the case, and to have the judgment affirmed.

Under the rules of the Criminal Court of Appeals, we have carefully examined the information and other pleadings, the record, the instructions of the court and judgment, and no fundamental error being apparent, are of the opinion that the motion of the Attorney General should be sustained.

The record reveals that Mr. L. D. Rhoades, a highway patrolman, while driving down the highway in Choctaw county, observed a truck parked by the road on which a tire was being changed. On the opposite, side of the highway there was a parked private automobile with the rear extending about four feet out on the highway. The defendant was in this car, and when Mr. Rhoades stopped to investigate, defendant immediately drove off down the highway. He attempted to turn in at his home, and almost hit a bridge. He backed up, and made the turn. When defendant got out of the car, he fell, and was helped up by the patrolman, who had followed him, and who testified that he was very drunk at the time. Defendant was calling his mother, and cursing. Mr. Rhoades was not in uniform and did not arrest the defendant, but told him who he was and went to the sheriffs office, and he and the sheriff, Cap Duncan, and one of the deputies, Byrd Collins, returned to the home of the defendant, within 20 minutes. Both the sheriff and his deputy testified that defendant was drunk, and that he was cursing Mr. Rhoades and they smelled whisky on his breath.

Defendant, his mother and Mr. Carl Ross, a neighbor, testified that the defendant was not drunk. Several witnesses were presented by defendant, who testified to his good reputation.

Under the above statement, the evidence was sufficient to sustain the judgment and sentence of the court and jury. Defendant had a fair and impartial trial, and the jury was very lenient in the punishment assessed.

The motion of the Attorney General is sustained, and the judgment of the county court of Choctaw county is affirmed.

JONES and BRETT, JJ., concur.


author: BAREFOOT, J. BAREFOOT, P. J.

text:
    DOROTHY McGOWAN et al. v. STATE.
    No. A-10567.
    Sept. 26, 1946.
    Opinion on Rehearing Jan. 22, 1947.
    (173 P. 2d 227; 176 P. 2d 837.)

      Herbert K. Hyde and Lee Williams, both of Oklahoma City, for plaintiffs in error.
    Randell S. Cobb. Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

The defendants, Dorothy Loraine McGowan and Ernest Arthur Hurst, were charged jointly in the court of common pleas of Oklahoma county with the crime of contributing to the delinquency of a minor, were tried, convicted and sentenced to each pay a fine of $500 and serve six months in the county jail, and have appealed.

It is first contended that the evidence was insufficient to sustain the judgment and sentence, under the law.

The statute under which defendants were charged is Tit. 21, O. S. 1941 § 856, and is as follows:

“Every person who shall knowingly or willfully cause, aid, abet or encourage a minor to be, to remain, or to become a delinquent child, as defined herein, shall, for the first offense, be guilty of a misdemeanor and punishable by imprisonment in a county jail not to exceed six (6) months, or by a fine not to exceed Five Hundred Dollars ($500.00), or by both such fine and imprisonment. * * *”

Section 857 of the same Title provides:

“* * * 2. ‘Minor’ or ‘child,’ as used in this Act, shall include male or female persons who shall not have arrived at the age of eighteen (18) years at the time of the commission of the offense.
“3. ‘Encourage,’ as used in this Act, in addition to the usual meaning of the word, shall include a willful and intentional neglect to do that which will directly tend to prevent such act or acts of delinquency on the part of such minor, when the person accused shall have been able to do so.
“4. ‘Delinquent child,’ as used in this Act, shall include a minor, as herein defined, who shall have been or is violating any penal statute of this State, or who shall have been or is committing any one or more of' the following acts, to-wit:
“(a) Associating with thieves, vicious or immoral persons.
“(b) Frequenting a house of ill repute. * * *
“(f) Willfully, lewdly or lasciviously exposing his or her person, or private parts thereof, in any place, public or private, in such manner as to be offensive to decency, or calculated to excite vicious or lewd thoughts, * *

The information filed in this case, charges the following:

“* * * That is to say, the said defendant in the county and state aforesaid, and on the day and year aforesaid, .then and there being, knowingly and wilfully cause, aid, abet and encourage one Genavee Keener, a female under the age of 18 years, to become a delinquent child, in manner and form as follows, to-wit; that is to say, the said defendants did willfully, lewdly and lasciviously in such manner as to be offensive to decency, and calculated to excite vicious or lewd thoughts to the said Genavee Keener, by enticing the said Genavee Keener to spend the night at-a residence at 22nd and South Eastern in said county and state, where they encouraged the said Genavee Keener to spend the night with one Esldll Marshall, and by taking the said Genavee Keener to various beer taverns, buying her beer, and by themselves having sexual intercourse in her presence, with the wilful and unlawful intent to excite vicious or lewd thoughts in the mind of the said Genavee Keener, contrary,” etc.

The record reveals that defendant Ernest Arthur Hurst had at one time worked at the Casaloma Night Club in Oklahoma City, and that he had for some time previous to January 15, 1944, been keeping company with his codefendant, Dorothy Loraine McGowan. That on that date the two defendants, who had previously met Genavee Keener at the Casaloma Night Club, where she had gone with her mother’s consent, went to the home of Genavee Keener accompanied by one Eskill Marshall, and asked her to accompany them to a night club, —The Midnight Sun. Her mother, after telling the defendant McGowan that Genavee was young and she wanted her to be protected, consented for her to accompany them. The defendant McGowan told Mrs. Keener that she was a married woman, and that she would protect Genavee.

After visiting the night club, the four of them went to a grocery store and got something to eat, and parked the car, which belonged to the defendant McGowan, and listened to the radio. They later proceeded to the home of Mrs. McGowan, and she asked Genavee to spend the night. Genavee called her mother to ask permission, and was first told that she could not stay; but after the defendant McGowan talked to Mrs. Keener over the telephone, told her that she did not have gasoline to take Genavee home, and assured her that the boys were not there, Mrs. Keener gave her consent for Genavee to stay, cautioning Mrs. McGowan to keep the window shades down. At the very time this conversation over the telephone occurred, both the defendant Ernest Arthur Hurst and Eskill Marshall were present at the McGowan home, and did not at any time leave there, although Hurst made a telephone call to Mrs. Keener, asking the whereabouts of the girls, and leaving the impression that they were not with them. The defendant Hurst and Eskill Marshall were rooming together, and working at the same place at this time.

It is further revealed by the record that soon after the telephone call was made from the home of Dorothy McGowan, the defendant Hurst went to bed in the front room, and the defendant Dorothy McGowan slept in the same room with him, both sleeping on the divan, but both deny that any misconduct occurred between them. Eskill Marshall and Genavee Keener went to bed in an adjoining room, slept together and twice had intercourse.

There is some dispute as to the age of Genavee Keener. The testimony of her mother and of Genavee was that she was only 16 years of age at the time. The defendants testified that she told them she was 18, and that she had told other parties she was 18. This was a disputed question of fact for the consideration of the jury.

It is further revealed by the record that the defendants were unmarried at the date of this alleged offense. At the time of their arrest on the charge here, they were living together in a rooming house in Oklahoma City as man and wife, and on the date of the trial they were both living at the same hotel. The defendant McGowan was married, and her husband was in the Navy and overseas. He and the defendant Hurst were friends. Mrs. McGowan testified at the trial that it was her intention to secure a divorce as soon as her husband returned to the states, and to marry her codefendant. Hurst testified that his wife had secured a divorce, and that he had one small child.

A reading of this record convinces one that the defendants planned from the very beginning to allure this young girl from her home for the purpose of spending the night with Eskill Marshall; and the jury no doubt reached this conclusion. The record abounds with circumstances and deceptions used to bring this about. The testimony of the defendants that they slept together on a divan and no wrong was committed was probably discredited by th< jury. Their every act was such as to lead this young girl, Genavee Keener, to commit the acts she testified she did. We do not mean to say by this that she is entirely guiltless, nor that her mother was as careful as she should have been, yet the record discloses that the mother was trying to be careful of the conduct of her young daughter, but it is now common knowledge that the rearing of a young girl in a populous city, crowded with beer taverns, dance halls, and honky tonks, is a troublesome and tremendous responsibility. The mothers and fathers of this age must themselves meet this responsibility for the moral welfare of their children, and the children must develop character strong enough to meet these ever present temptations. Their characters and good sense should prevail over their appetites and desires.

Much stress is placed upon the interpretation of the meaning and exact wording of the statutes defining “delinquent child,” above quoted; and it is contended that the evidence did not reveal that defendants had “knowingly” committed the acts charged in the information.

It is stated in defendant’s brief that:

“The gist of the charge against defendants as contained in the information consists of three things which it is alleged ‘caused, aided, abetted and encouraged’ Genavee Keener ‘to become a delinquent child,’ being
“(a) by enticing the said Genavee Keener to spend the night at a residence * * * where they encouraged the said Genavee Keener to spend the night with one Eskill Marshall,
“(b) by taking the said Genavee Keener to various beer taverns, and buying her beer, and
“(c) by themselves having sexual intercourse in her presence.”

These charges should be considered with reference to the statute above quoted, Tit. 21 O. S. 1941 § 856, which defines the crime of contributing to the delinquency of a minor, and fixes the punishment therefor, and section 857 of the same Title which defines the terms used in section 856, and also defines a delinquent child.

Subdivision 3 of section 857 defining the term “encourage” as used in section 856, and subdivision 4 of section 857 defining “delinquent child,” have been hereinbefore quoted.

From the evidence above quoted it cannot be doubted that it covers the charge that Genavee Keener was “encouraged” and enticed to associate with “vicious and immoral persons,” which is an act of delinquency under the terms of the statute. The testimony of the two defendants themselves establishes that they were vicious and immoral persons when they admitted that they occupied the same room and bed on the night of the alleged offense, and that the door between the room occupied by them and that occupied by Eskill Marshall and Genavee Keener was open and not closed; and admitted that they had lived together as man and wife at the rooming house up to the time of their arrest. By the terms of the statute, the word “encourage” in addition to the usual meaning of the word, shall include a willful and intentional neglect to do that which will directly tend to prevent such act or acts of delinquency on the part of such minor, when the person accused shall have been able to do so.” The evidence here not only shows that the defendants failed to do anything to prevent the minor child from entering the room and occuping the same bed with Eskill Marshall on the night of the offense charged, but that they encouraged it by their acts, conduct and deception. While the evidence may not show directly that the defendants actually committed an act of sexual intercourse in her presence, yet their conduct and the circumstances were such that would cause any person to reach the conclusion that such act was actually committed.

In the case of State v. Johnson (Mo. App.) 146 S. W. 2d 468, the third paragraph of the syllabus is as follows:

“Evidence sustained conviction of contributing to the delinquency of a 14-year old child by soliciting, encouraging and advising her to associate with immoral persons, though the defendants themselves were the immoral persons with whom they caused the child to associate.”

Defendant Hurst was asked:

“Q. Did you have sexual intercourse? A. No, sir, I don’t guess I did, I was asleep.”

The record does not sustain the allegation that defendants purchased beer for Genavee Keener. They went to the beer tavern, but it was closed and they did not go in.

Defendants contend that they did not have personal knowledge that Genavee Keener was not 18 years of age. There is some conflict in the evidence as to this point. Genavee testified that she told the defendants she was 17. Her mother testified that she told the defendant Dorothy McGowan at the time she gave permission for Genavee to accompany them that Genavee was yonng and she did not want her out where she should not be, and that defendant, McGowan answered: “I am married and I will take good care of her,” and that when she gave her permission for Genavee to spend the night, she told defendant McGowan to be sure the boys were not there. At this very time the boys were there, and stayed there all night, and slept with the girls in adjoining rooms with the door open. There is no evidence that either of the defendants uttered one word of warning to Genavee Keener, but there are many facts and circumstances that they encouraged and approved of her action in sleeping in the same room and bed with Eskill Marshall.

In DeZarn v. Commonwealth, 195 Ky. 686, 243 S. W. 921, 922, the court said:

“The commonwealth did not prove by direct evidence that Sams knew Gregory was not 21 years of age, as no doubt it was unable to do, but it introduced Gregory as a witness, who testified without contradiction that at the time he was only 16 years of age. The jury was thus given the opportunity to judge for themselves whether or not Gregory’s appearance was such that Sams must necessarily have known he was a minor. This fact, considered in connection with the uncontradicted proof that Gregory was only 16 years of age at the time, is some evidence at least tending to prove that Sams knew he was a minor, and is doubtless the best, if not the only, evidence that could have been introduced to prove the fact.
“It is urged that it is a matter of common knowledge that many boys 16 years of age have the appearance of being more than 21, but to this we cannot agree, and even if it were true, we certainly do not know judicially that the appearance of this 16-year old boy whom the jury saw and heard testify was not such as to prove that Sams knew he was under 21 years of age when he permitted him to play on the tables of defendant. Upon the other hand, we feel entirely warranted in assuming, in the absence of evidence to the contrary, that his appearance was such as to prove that Sams must have known, and did know, he was a minor when he permitted him to engage in the game.”

We have examined the cases cited in defendants’ brief. Most of them are cases involving the sale of intoxicating liquor, or the possession of intoxicating liquor, and the receiving of stolen property. This court in the recent case of Walker v. State, 82 Okla. Cr. 352, 170 P. 2d 261, reviewed the cases with reference to the proof necessary to establish “knowledge” on the part of one who receives stolen property. We quoted at length from the case of Camp v. State, 66 Okla. Cr. 20, 89 P. 2d 378, and think it unnecessary to quote from that case. It gives the general rule adhered to by this court as to the “knowledge” necessary where one is charged with receiving stolen property. The same principle applies to the facts in this case. But as above stated, the definition of the word “encourage” in the statute adds an additional responsibility upon the defendant in a case where the charge is contributing to the délinquency of a minor.

From the above statements, we are of the opinion that the evidence in this case was sufficient to sustain the verdict of the jury, and that the court did not err in refusing to sustain a demurrer to the evidence, or to advise the jury to acquit the defendants.

It is next contended that the court erred in (a) giving certain instructions; and (b) in refusing defendants’ requested instruction.

We have examined all of the instructions, including those to which exception was taken by defendants. The instructions to which exceptions were taken were generally definitions of the terms as provided by the statutes. In fact, most of the material instructions consist of these definitions. The instructions as a whole, while not subject to reversible error in our opinion, do not present a comprehensive view of the issues under the evidence submitted. No instruction was given with reference to “associating with vicious or immoral persons”, which we have pointed out as a provision of the statute which the evidence in this case clearly supports. The defendants, however, did not offer a requested instruction covering his phase of the case.

The requested instruction offered by defendants, and refused by the court, was as follows:

“You are instructed that one of the essential elements of the crime charged is that the same was committed ‘knowingly.’ In this connection you are instructed that if the defendants, or either of them, knew that Genavee Keener was a minor, or had such information from her appearance or otherwise as would lead a prudent person to believe that she was a minor, and if followed by inquiry, must bring knowledge of that fact home to him, then the acts charged, if you find they were committed by the defendants, or either of them, would have been committed ‘knowingly.’ If, on the other hand, the defendants, or either of them, did not know that she was a minor, and had no information from her appearance or otherwise as would lead a prudent person to believe that she was a minor, which, if followed by inquiry, would necessarily have brought knowledge of that fact home to him, then such defendant lacking such knowledge or information could not have ‘knowingly’ committed the offense charged and it would be your duty to find such defendant not guilty.”

Herbert K. Hyde and Lee Williams, both of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City for defendant in error.

No instruction was given by the court with reference to the question of “knowledge.” This was a question of fact, as above stated, and the requested instruction fairly presented this issue to the jury for their determination. We have often held that the giving or refusal to give an instruction was not necessarily a cause for reversal of a case; but that the entire record would be examined and determination made as to whether the fundamental rights of the defendant were denied before the case would be reversed. Stroud v. State, 82 Okla. Cr. 124, 167 P. 2d 80; Lamb v. State, 70 Okla. Cr. 236, 105 P. 2d 799; Ned v. State, 29 Okla. Cr. 389, 233 P. 1096.

We have examined this record carefully, and find that the judgment and sentence rendered was the maximum provided by the statute, and we have come to the conclusion that this case should not be reversed, but that from the above statement, justice demands a modification of the sentence imposed of a fine of $500 and six months in jail, to a fine of $100, and thirty (30) days in jail as to each of the defendants.

As so modified, the judgment of the court of common pleas of Oklahoma county is affirmed.

On Rehearing.

Former opinion set aside, and judgment reversed and case remanded.

BAREFOOT, P. J.

In the original opinion filed herein, the judgment of the court of common pleas of Oklahoma county was modified from a sentence of $500 and six months in the county jail for each of the defendants, to a fine of $100 and 30 days in the county jail for each defendant.

A petition for rehearing was filed, and has been granted.

Upon reconsideration, we have reached the conclusion that this ease should be reversed and remanded for a new trial. The failure of the court to give the requested instruction, which is set out in the original opinion, was error which justifies a retrial of this case.

For the reason above stated, the judgment of the court of common pleas of Oklahoma county is reversed and the case remanded.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte PAUL WILLIAMS.
    No. A-10821.
    Jan. 29, 1947.
    (177 P. 2d 138.)
    William H. Lewis, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and W. N. Mounger, Asst. Co. Atty., of Oklahoma City, for the State.
   BRETT, J.

The petitioner, Paul Williams, was charged in Oklahoma county with the crime of murder. At the preliminary examination he was held to the district court without bail and information was filed against him in the district of Oklahoma county, December 20, 1946, and said Paul Williams is now confined in the county jail of Oklahoma county.

Application was made to the district court of Oklahoma county for a writ of habeas corpus and a hearing had thereon on January 18, 1947, and the defendant, Paul Williams, was denied bail.

He has filed his application in this court for a writ of habeas corpus, stating that he is not guilty of the crime of murder, as charged, and that proof of his guilt of the charge of murder is not evident nor that the presumption thereof, great.

This petition was heard by agreement of the parties in this court on January 23, 1947.

It is unnecessary to give a detailed statement of the testimonies presented at the hearing before this court. A complete transcript of the testimony taken at the examination before the district court on the application for a writ of habeas corpus therein was introduced and oral testimony was also heard by the court. The evidence in the transcript from the proceedings below and the oral testimony taken in this court consisted entirely of the defendant’s testimony as to the facts of the killing, herein involved. His testimony, standing alone and uncontroverted both in the court below and in this court, is sufficient to raise the presumption of a probable case of accidental and not a premeditated and intentional homicide. This testimony, standing uncontroverted, is sufficient to entitle the defendant to the writ and the same is granted and said Paul Williams is ordered to be released from the county jail of Oklahoma county upon the giving of bail in the sum of $20,000, to be approved by the court clerk of Oklahoma county.

In keeping with this order, the writ is hereby granted to the above defendant in compliance with the order as above stated. ,

BAREFOOT, P. J., concurs. JONES, J., absent and not participating.