text:
    STATE v. VIRGIL HARRIS et al.
    No. A-7430.
    Opinion Filed May 17, 1930.
    (288 Pac. 385.)
    F. M. Dudley, Co. Atty., and John M. Thompson, Asst. Co. Atty., for the State.
    Brown & Brown, S. A. George, and John L. Hodge, for defendants in error.
   CHAPPELL, J.

On the 10th day of October, 1928, a grand jury, duly convened in the district court of Carter county, returned an indictment against the defendants, of which the following is the charging part:

“* * * on or about the 24th day of October, in the year of our Lord one thousand nine hundred and twenty-seven, the defendant, Virgil Harris and W. L. Alexander, did commit the crime of embezzlement, in the manner and form as follows, to wit:
“That the said Virgil Harris, in the county and state aforesaid, on or about the 24th day of October, 1927, was the duly appointed, qualified and acting deputy county treasurer of Carter county, state of Oklahoma, and as such deputy county treasurer was charged and entrusted with the collection, receipt, safekeeping, transfer and disbursement of all public money belonging to the said county of Carter, state of Oklahoma, and to divers persons, firms, corporations, to the grand jurors unknown, and of all other funds, property, bonds, securities, assets, or effects of any kind received, controlled, or held by him by virtue of his said office of deputy county treasurer for safe keeping, transfer, and disbursement, and that the said Virgil Harris as such deputy county treasurer, and acting, charged and entrusted as aforesaid, was entrusted and charged with, and did in said county and state aforesaid on or about the 24th day of October, 1927, receive, have and hold in his possession and under his control, by virtue of his said office, and for the purpose aforesaid, certain public funds and other funds, property, bonds, securities, assets, and effects by him received and collected as such deputy county treasurer for taxes and for other purposes, and from various sources provided by law and to the grand jurors unknown, and which public money and other funds, property, bonds, securities, assets and effects were received and held by him for the said county of Carter, state of Oklahoma, and municipal and corporate subdivisions of said county and divers persons, firms, and corporations to the grand jurors unknown in large sums but the exact amount thereof being to the grand jurors unknown; that the said Virgil Harris and W. L. Alexander on or about the 24th day of October, A. D., 1927, in said county of Carter, state of Oklahoma, and the said Virgil Harris then and there being and then and there acting as such deputy county treasurer, and then and there being so charged and trusted with the control, disbursement, receipt, safekeeping and transfer of said public money, funds, property, securities, assets, bonds and effects aforesaid then being in his possession by virtue of his said office for safe-keeping, transfer and disbursement, did then and there acting together, unlawfully, willfully, wrongfully and feloniously convert and appropriate to their own use and benefit, and to a use and purpose not in the lawful execution of the aforesaid trust of him the said Virgil Harris, deputy county treasurer, Carter county, Okla., a part of said public money and funds, property, bonds, se-<yirities, assets, and effects received, controlled, and held by and entrusted to him the said Virgil Harris as such deputy county treasurer by virtue of his said office, towit: the sum of and to the amount of and of the value of $1,-069.18, a more particular description of which is to the grand jurors unknown. Contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

On the 5th day of November, 1928, the defendants in open court each waived arraignment, and each entered their separate pleas of “not guilty” to the indictment aforesaid. On the 5th day of February, 1929, the defendants were granted leave by the court to withdraw their pleas of “not guilty,” and their counsel dictated into the record demurrers to said indictment, alleging that the indictment does not state sufficient facts against either of defendants to state a cause of action. The demurrers were by the court sustained. Thereupon the state reserved a question of law for appeal, and gave notice in open court of its intention to appeal said cause to this court. Due notice of appeal was duly served, and in due time the appeal was docketed in this court. The state alleges that the court erred in sustaining said demurrers.

The defendants were informed against under section 9781, C. O. S. 1921, which provides as follows:

“If any county treasurer, or other officer or person charged with the collection, receipt, safekeeping, transfer or disbursement of the public money, or a,ny part thereof, belonging to tbe state or to any county, precinct, district, city, town or school district of the state, shall convert to his own use or to the use of any other person, body corporate or other association, in any way whatever, any of such public money, or any other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by such officer or person by virtue of such office or public trust for safekeeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or shall use the same by way of investment in any kind of security, stocks, loan property, land or merchandise, or in any other manner or form whatever; or shall loan the same, with or without interest, to any person, firm or corporation, except when authorized by law; or if any person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer, or other officer or person shall be deemed guilty of an embezzlement of so much of said money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid; and upon conviction thereof, such county treasurer or other officer or person shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid; which fine shall operate as a judgment lien at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property as aforesaid shall have been so embezzled; and in all cases such fines, so operating as a judgment, shall be released or entered as satisfied only by the person in interest, as aforesaid.”

The defendant Virgil Harris, one of the defendants named in the indictment, was a deputy in the office of tbe county treasurer of Carter county, and was therefore a public officer within the meaning of section 9781, C. O. S. 1921. Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18, 19.

In the case of State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, this court had under consideration the precise question raised by the defendant Harris. The information in the case at bar is practically in the identical language of the information in State v. Bunch, supra. In that case the court held that the information was sufficient to charge the crime of embezzlement trader section 9781, C. O. S. 1921. It was error, therefore, for the court to sustain the demurrer of the defendant Virgil Harris to such indictment.

The defendant W. L. Alexander was not a public official, but, according to the information brought to the attention of the grand jury that found the indictment, he assisted the said Virgil Harris in misappropriating, converting, and embezzling, the public moneys mentioned in the indictment. The question of law reserved by the state is, Are the allegations as set forth in the indictment sufficient to allege the crime of embezzlement by the said Alexander under section 9781, supra? That part of the section which applies to the defendant Alexander is as follows:

“* # * Qr if any person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer, or other officer or person shall be deemed guilty of an embezzlement of so much of said money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid.”

Section 1521, O. O. S. 1921, provides as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Section 2574 C. O. S. 1921, provides as follows:

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

Section 9781, supra, was section 7437, Revised Laws of 1910. In Davenport v. State, supra, this court, after setting out section 7437 verbatim, said:

“Tbe Legislature unquestionably bad tbe power to enact that tbe malfeasance of officers intrusted with public property and money as set forth in tbe section quoted should constitute tbe crime of embezzlement, and that any person advising, aiding, or in any manner knowingly participating, therein is guilty of the same crime. Therefore, in determining wbetber or not tbe information states an offense, we must look to this particular legislative enactment, and not to tbe law relating, in general to embezzlement. An indictment or information which sets out tbe elements of tbe offense as comtemplated in tbe foregoing statute and in substantial compliance with tbe language of the section would be sufficient.”

Both defendants contend that tbe indictment is fatally defective because it does not allege fraudulent intent. This contention might be disposed of upon tbe proposition that tbe words, “acting together, unlawfully, willfully, wrongfully and feloniously convert and appropriate to their own use and benefit, and to a use and purpose not in the lawful execution of tbe aforesaid trust of him, tbe said Yirgil Harris, deputy county treasurer,” sufficiently allege tbe fraudulent intent; but, since there are other indictments pending with similar charges, we will dispose of the question of whether or not it is necessary to allege and prove any fraudulent intent.

Embezzlement was not a crime at common law, but is a crime defined by statute, and the Legislature may declare what acts constitute the crime of embezzlement and fix the punishment therefor. Under proper averments, the definition of embezzlement as found in section 6357, C. O. S. 1921, may be considered an aid in defining embezzlement under the provisions of section 9781, supra. Both of these statutes are specific in their nature and not a part of the General Criminal Code. Hays v. State, 22 Okla. Cr. 100, 210 Pac. 728.

Sections 6357 and 9781, supra, are specific statutes within the meaning of section 1509, C. O. S. 1921, providing that specific penal statutes shall govern against general provisions of the Penal Code. As between specific statutes prescribing different penalties for any offense, the state may elect to try an offender under either statute. State v. Bunch, supra.

To sustain a conviction under section 9781, supra, it must be shown that there was a private personal appropriation of the funds or an appropriation not in keeping with his official trust. Where an offense is complete irrespective of a criminal intent, no averment of intent need be inserted. 20 C. J. 475; 15 Cyc. 513; State v. Trolson, 21 Nev. 419, 32 Pac. 930, 932; State v. Reynolds, 65 N. J. Law, 424, 47 A. 644.

In State v. Trolson, supra, that court said:

“The offense consists in the violation of the law, not in the intent or motive by which the party was actuated.”

In the case at bar it was sufficient to charge the offense of embezzlement in the language of the statute or substantially in such language. Since section 9781, supra, does not require any intent, but makes the officer intrusted with the funds coming into his hands for safekeeping, transfer, or disbursement, or in any other way or manner or for any other purpose, or any one who advises, aids, or participates in the conversion, using by way of investment, or loaning of such funds, guilty of embezzlement, it is sufficient to charge such acts in the language of the statute and to prove that such funds were converted or used by way of investment or loaned, and that the conversion, investing, or loaning was participated in by the defendants. Under the authorities cited, the indictment was sufficient to charge an offense not only against the defendant Harris, but also against the defendant Alexander.

For the reasons stated, the cause is reversed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    BRIGHAM YOUNG v. STATE.

      No. A-7440.
    Opinion Filed May 17, 1930.
    (288 Pac. 368.)
    Hendon & Hendon, for the plaintiff in error.

      J. Berry King', Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Pottawatomie county, on a charge of maintaining a place where malt, spirituous, vinous, and fermented liquors, capable of being used as a beverage, containing more than one half of one per cent, of alcohol measured by volume, was kept in violation of law, and was sentenced to pay a fine of $250 and costs, and be confined in the county jail for ninety days. From which judgment and sentence the defendant has appealed.

The appeal in this case was filed in this court on the 20th day of June, 1929. No brief has been filed on behalf of the defendant and no appearance was made for oral argument. Where no brief is filed and no appearance is made for the defendant, the court will consider the appeal is without merit, or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: DAVE-NPOBT, J.

text:
    WILL RUNNELLS v. STATE.
    No. A-7405.
    Opinion Filed May 17, 1930.
    (288 Pac. 367.)

      C. H. Glazner, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVE-NPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of McIntosh county, charged with a second violation of the prohibitory laws of the state, by having in his possession spirituous, fermented, malt, and intoxicating liquor, containing more than one-half of one per cent, alcohol measured by volume and capable of being used as a beverage, and was sentenced to pay a fine of $100 and be confined in the state penitentiary for a term of eighteen months. From which judgment and sentence defendant has appealed to this court.

Eight errors have been assigned by the defendant, alleged to have been committed by the trial court in his case. Without setting forth the testimony introduced over the objection of the defendant, the only error it is deemed necessary to consider is the sixth assignment, which is as follows:

“Because the affidavit for the search warrant was void on its face, the search warrant issued was illegal, and the search and seizure illegal and void, and in violation of the defendant’s constitutional rights.”

The statement in the affidavit for the search warrant that is deemed necessary to set out is as follows:

“That in McIntosh county, state of Oklahoma, on the 14th day of March, 1928, the above named defendant, Will Bunnells, at his residence, outhouses and premises in the southeast part of the city of Eufaula, in McIntosh county, did then and there have in his possession,” etc.

The description in the search warrant is the same as contained in the affidavit for the search warrant. Section 30, art. 2, Bill of Rights, is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to' be seized.”

By reference to the affidavit it will be noted that the only description in the affidavit and search warrant is, at the defendant Will Runnell’s residence, outbuildings, and premises in the southeast part of the city of Eufaula, McIntosh county, Okla., the defendant is violating the prohibition act, by naming the different things the defendant is doing.

It is the contention of the defendant that the description in the affidavit is too indefinite and uncertain to warrant a search of his premises and buildings upon the cur-tilage of his home.

This court has repeatedly held that the description in the affidavit and the warrant should be sufficiently definite that no> discretion is left to the officer making the search.

The description in the warrant before us is not sufficient under any authority we have been able to find. All of the evidence having been obtained under an invalid affidavit for the search and the search warrant, the case is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    I. E. McGILVERY v. STATE.
    No. A-7455.
    Opinion Filed May 17, 1930.
    (288 Pac. 400.)
    Mathers & Mathers, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance, and his punishment fixed by the jury at a fine of $200 and confinement in the county jail for thirty days.

The evidence of the state was that the defendant operated a place, the first door north of the City Views Mercantile Company at the northeast comer of Sixty-Third and Western avenue, Oklahoma City, Okla.; that the officers had watched this place for a week prior to the time of the arrest of defendant, and that large numbers of people came and went from this place at all hours of the day and night congregating there; that on the day of the arrest the officers saw a negro named Walker come from this place with a sack containing a jug; that they pursued Walker for a mile, captured him, and found that the sack contained a gallon of whisky which had been taken from defendant’s place by Walker; that, when they entered the place, they did not find the defendant there, but did find a negro named Mitchell; they found a gallon of whisky, ten or eleven gallon jugs, about a dozen one-half gallon jugs and about 150 pint bottles; that while they were there one man called over the telephone to know if he had enough stuff; that others called, but the officer did not remember just what the calls were; that people came there while the officers were there, among them defendant’s brother, who- gave an alias name; that while they were there defendant came with a young woman, and said the place belonged to him.

The defendant did not take the witness stand, but called neighbors who testified that they had never seen anything wrong about the place. The evidence of the state was sufficient to support the verdict of the jury.

The defendant next contends that the search warrant was a John Doe warrant, and was insufficient because the officer knew the name of the defendant. D. M. Kean, the officer who made the affidavit, while testifying in the case, said that he knew the defendant, but there is no¡ evidence that the officer knew at the time he made the affidavit for the search warrant that defendant was the proprietor of the place. The affidavit and search warrant were sufficient to- authorize the search of the premises of the defendant.

For the reasons stated, the cause is affirmed.

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


text:
    EWELL KIDD v. STATE.
    No. A-7469.
    Opinion Filed May 17, 1930.
    (288 Pac. 399.)

      Claude A. Niles, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of violating the prohibitory liquor laws of the state, to wit, having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for thirty days.

The evidence of the state was that the officers procured a search warrant to search the premises occupied by the defendant and searching the premises found a gallon jug of whisky and a jar partly full and some in a bottle, all of which was concealed in the bed of defendant. Also they found a quantity of empty whisky bottles in defendant’s room; that the place occupied by the defendant had been under observation by the officers for several days; that they had observed a large number of people coming and going from this place at all hours of the day and night; and that the place was a place of public resort. The officers then testified that they knew the reputation of the place as being a place of public resort and that the reputation of such place was bad; that defendant had no business or occupation to call people to the place where he lived.

The defendant did not take the witness stand and offered no evidence at the trial. This evidence was sufficient to sustain the verdict of the jury.

The defendant next contends that the search .warrant was not properly identified. Defendant filed a motion to suppress the evidence for the reason that the search warrant was not issued and served as provided by law and second, for the reason that the affidavit upon which the search warrant was obtained was false and untrue, and asked leave of court to prove that the allegations of the affidavit were false and untrue. The jury being excused, the state introduced the affidavit and search warrant, and upon an examination of the same the court overruled the motion to suppress.

In Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, and Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court held that where the affidavit was sufficient on its face, the question of the truth of the statements or the knowledge of the witness who made the affidavit could not be inquired into. The affidavit and search warrant in the case at bar were sufficient to authorize the search of the premises of the defendant, and the evidence obtained by the search was therefore properly admitted by the trial court.

Defendant in his brief raises but two' questions, the sufficiency of the evidence and the sufficiency of the search warrant. Neither of these contentions, have any merit. For the reasons stated the cause is affirmed.


author: PER CURIAM.

text:
    BOB WICKER v. STATE.
    No. A-7329.
    Opinion Filed May 17, 1930.
    (288 Pac. 398.)

      W. T. Jeter, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of transporting intoxicating liquors, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for a term of 60 days.

The evidence of the state shows: That an officer living at Granite was on his way to Mangum and saw a Chevrolet coupe sitting at the side of the road with two men in it apparently asleep. This officer drove on to Mangum, reported-the incident to a deputy sheriff, and together they returned to the coupe, found that it had not been moved since first seen by the officer, and the defendant and one Regin drunk in the car. They found a pint bottle with some whisky in it sitting on a back shelf above the seat. That they arrested the defendant and Regin and put them in jail. This is, in substance, all the state’s evidence.

The charge being transportation of intoxicating liquor , and there being no evidence in the record to support the verdict, the cause is reversed.


text:
    TOOTS THOMPSON v. STATE.
    No. A-7442.
    Opinion Filed May 17, 1930.
    (288 Pac. 398.)
    J. G. Aubuchon, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted for having possession of certain spirituous malt and intoxicating liquors, and sentenced to pay a fine of $500 and be imprisoned in the county jail for six months, from which judgment the defendant has appealed to this court.

The verdict of the jury was rendered on January 20, 1929, and judgment passed upon the defendant on the 23rd day of February, 1929. Petition in error and case-made was filed in this court on June 21, 1929. No brief has been filed in support of the errors assigned, nor has there been any personal appearance for the defendant, or argument submitted in support of the assignments.

Where no brief is filed and no personal appearance is made, the court presumes that the appeal is without merit or has been abandoned. We have examined the record, and find the information properly charges an offense; that a trial was had and defendant was convicted and sentenced. No fundamental or prejudicial errors being pointed out by the defendant or appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    JOE COVAULT v. STATE.
    No. A-7308.
    Opinion Filed May 24, 1930.
    (288 Pac. 504.)
    Mauntel & Spellman, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of possession of beer, the same containing in excess of one-half of 1 per cent, alcohol by volume, with the unlawful intent to barter, sell, give away, or otherwise furnish to others; and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for thirty days; from which judgment the defendant has appealed.

The testimony in this case shows that the officers went to' the home of the defendant and found several bottles of what was designated as beer in the ice box and in the basement. Neither of the officers could testify as to the contents of tbe bottles, or to whether or not it was intoxicating. About four months after the beer was seized by the officer and the trial began, the state closed its testimony without having sufficient proof to sustain the allegations in the information. The county attorney asked permission to reopen the case, and had a chemist examine the contents of two of the bottles. The chemist was called as a witness, and testified that the contents of the two bottles he examined contained more than one-half of 1 per cent, alcohol by volume; that he examined the same at'the request of the sheriff’s office; witness from the sheriff’s office was called, and stated that the bottles that the chemist had examined the contents of at the noon hour were bottles taken from the home of the defendant.

The defendant denied any knowledge that the beer, or liquor, in the bottles at his place was intoxicating; some of it he had bought from some party, but he had not drunk any of it to tell the effect it would have upon him. Prior to the date of the trial, the chemist had examined two bottles shown to have been taken from the number seized at the ‘ defendant’s home, and his report showed these two bottles contained less than one-half of 1 per cent, of alcohol measured by volume.

The testimony further tends to show that these bottles were tightly capped, and the chemist testified that, while bottles are tightly capped, there would be a very little gain, if any, of the per cent, of alcohol between the time of the seizures by the officers and the examination by the chemist. He further testified that, when he removed the cap tO' analyze the contents of the bottle, it was no.t fermenting.

Several errors are assigned by the defendant, alleged to have been committed by the court in the trial of his case. Tbe first is, error of tbe court in overruling motion of tbe defendant for a new trial. All tbe errors complained of may be considered in tbe first assignment. An examination of tbe record shows that the chemical analysis of tbe beer found in tbe defendant’s home contained more than one-half of 1 per cent., measured by volume; that tbe bottles were tightly capped; that, when the caps were taken off, the bottles were not fermenting. While is is true tbe examination was made several weeks after tbe search of tbe defendant’s home, tbe testimony of tbe chemist tends to show that, if tbe contents of tbe bottles were not fermenting when bottled, it would gain but a very small per cent, of alcohol where the bottles were tightly capped. Stanka v. State, 41 Okla. Cr. 348, 273 Pac. 279.

Where seizures of this character are made, it would be a better procedure to have an analysis made immediately after taking possession of the alleged beer.

After a careful examination of the testimony, we hold the same is sufficient to sustain the judgment. The judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


author: EDWARDS, P. J.

text:
    Ex parte HARVEY ANDERSON.
    No. A-7309.
    Opinion Filed May 24, 1930.
    (288 Pac. 503.)

      N. S. Corn, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges in substance that he is illegally restrained of his liberty in the state reformatory or penitentiary at Granite, Okla.; that in May, 1925, he was sentenced to- serve a term of seven years for burglary, and this sentence was suspended by the district judge. Thereafter in February, 1929, upon a hearing his suspended sentence or parole was revoked by said judge and petitioner was committed. While it is not stated that petitioner at the time of his sentence was of the age of 21 years or under, we assume that he was, as otherwise the district judge did not have authority to suspend his sentence. Sections 2803, 2804, Comp. Stat. 1921. In Ex parte Eaton, 29 Okla. Cr. 275, 233 Pac. 781, this court held that in case of a suspension of sentence under the provisions of sections 2803, 2804, supra, that the trial co-urt was without authority to vacate the parole order of suspension and enforce the judgment after the expiration of the term for which the juvenile offender was sentenced. Ex parte King, 40 Okla. Cr. 21, 266 Pac. 511, is to the same effect. The holding in these cases is also- in substance that during the term for which the offender was sentenced the parole may be revoked and the offender required to- serve the full term. This view conforms to the language of section 2804, that when it is made to appear to- the judge that the offender has violated the terms of the order of suspension, he shall serve out the full term for which he had originally been sentenced.

The order suspending sentence in this case having been revoked during the term for which the offender was sentenced, the petitioner is not entitled to release by habeas corpus.

The writ is denied.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


text:
    A. C. MILLS v. STATE.
    No. A-7362.
    Opinion Filed May 24, 1930.
    (288 Pac. 496.)

      Ross Rizley, R. B. Loofbourrow, and Clyde Miles, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Beaver county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 30 years.

The evidence of the state was that defendant and deceased were farmers residing in Beaver county on adjoining farms. On the 3d day of July, 1928, deceased, who owned a combine harvester, began to cut the wheat of defendant. That a dispute arose between them over the use of a tractor to pull the combine, and later a more serious dispute because defendant had changed the governor on the combine. When defendant told the deceased about the change in the governor, the deceased became angry, stopped the combine, and ordered his hired man driving the tractor to pull the combine out of the field and quit the job. That defendant left the combine and hurried to his house, where he procured a revolver and started to return to the combine. That deceased had hitched his automobile to the water and oil truck and was driving out of the field as defendant returned from the house. That defendant hailed the deceased, and that deceased stopped his car and got out and started to walk toward the defendant, and that defendant continued to walk toward the deceased. That when they were ten or fifteen steps apart, deceased had his hand up and was gesticulating, and defendant fired two shots from his revolver. That deceased ran some distance and then slowed down and walked some distance further, where he fell and died a short time thereafter. Defendant went hack to the house, left his pistol, and went to the county seat to surrender. The sheriff not being there, defendant was taken to the office of the county attorney, where he made a voluntary statement of the events leading up to the killing. In this statement made by the defendant, the county attorney testified that the defendant made no claim that the deceased was armed or had a knife. The defendant claims that he was carrying his revolver with him that day because he was afraid to leave it at the house on account of his boy, who was mentally deficient, and because he thought he might be hijacked as he was returning from hauling his wheat. The defendant further claims that on returning from the house he hailed the deceased for the purpose of inducing him to go ahead with the cutting of the grain. That deceased cursed him, coming toward Mm with a knife in his hand, threatening to cut him, and that he shot deceased some ten steps away because he thought he was in great danger of his life or bodily injury.. The record shows that the deceased was dressed in a pair of blue duck trousers and shirt and was not wearing any underwear; that all he had on his person was a pair of pliers in a back pocket of his trousers, a little, old, dirty knife in the left-hand front pocket and a pocketbook in the righthand pocket; that after deceased had been taken to his home and after he had died, these articles were taken out of his pockets; that the knife was closed and was covered with oily grease and apparently had not been opened by deceased unless it had been to repair his tractor during the noon hour. There is very little dispute about the facts in the case except as to what actually transpired at the time of the killing. Two of the men were working not far away and could see what was going on, but could not hear because of the noise made by the tractors. Under the defendant’s own statement he was not in such danger as would justify the taking of human life.

The defendant first contends that the court erred in overruling his application for a change of venue. The application was in the usual form and supported by the affidavits of several residents of the county who swear in substance to the effect that in their opinion the defendant cannot have a fair and impartial trial in that county; that the case has been discussed by many people in the vicinity where the crime was committed; that the discussions made have held the defendant in bad light and accused the defendant of having committed a cowardly act; that the defendant had formerly committed murder by cutting the throat of his father-in-law; and that by reason of the widespread prejudice against the defendant it would be impossible to have a fair and impartial trial. The state filed numerous counter affidavits, in substance to the effect that the persons who made the affidavits in support of defendant’s application for change of venue were not rightly or reliably informed as to the condition of the minds of the citizens of Beaver county in their feeling toward the defendant; that some sentiment may exist in the vicinity where the offense is alleged to have occurred, but that such feeling is not general throughout the county; and that they believe a fair and impartial trial could be had. After hearing this evidence and argument of counsel, the court denied the application, whereupon counsel for defendant took proper exceptions to such ruling. This court has uniformly held that applications for a change of venue are addressed to the sound discretion of the trial court, and that unless it is made clearly to appear that such discretion was abused this court will not reverse the case for the refusal of the trial court to grant the change of venue. Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971.

In order to warrant a change of venue by reason of prejudice existing against the defendant, it must be shown that such prejudice extended throughout the county generally, and it is sufficient to show that impartial jurors can be secured from a portion of the county only. Williams v. State, 19 Okla. Cr. 307, 199 Pac. 400.

The presumption of law is that the defendant can get a fair and impartial trial in the county in which the offense is committed, and the burden is upon the defendant who seeks a change of venue to establish his right thereto. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168.

In the case at bar, no abuse of discretion appearing in the record, the application for the change of venue was properly overruled.

The defendant next contends that the court erred in admitting certain alleged incompetent, irrelevant, and hearsay evidence. This assignment relates to the admission by the trial court of the evidence of Dr. Markley given at the preliminary examination, and in addition to the contention that said evidence was incompetent, defendant contends that no proper predicate was laid for the reading of the evidence as contained in the transcript filed in the clerk’s office by the examining magistrate who had heard the preliminary examination. The witness had made an examination of the deceased after his death and testified at the preliminary examination describing the location of the wounds, their course, and that these wounds were the cause of the death. This testimony was competent and relevant to the issue as to the cause of death, since it was incumbent upon the state to prove that the wounds inflicted by the defendant did cause death. The county attorney testified that the witness Dr. Markley was a resident of Texas; that two subpoenas were issued for Dr. Markley and that service could not be procured upon him; and that the county attorney had been unable to reach the witness over the telephone. There was no way for the state to compel the witness to attend the trial, and neither could the state take his deposition. It is not contended that the testimony read in evidence was not the testimony as given by Dr. Markley at the preliminary examination, but the contention is that it was not properly identified. The court reporter who took the testimony at the preliminary examination was also the court reporter who took the testimony at the trial, and the state could have identified the record by the testimony of the reporter himself, and the state would have done so except for the statement of counsel as follows:

“If that is the record that Mr. King made we have no objection. If Mr. King made it we have no objection to his reading it but there is no evidence here that it is.”

Whereupon the court called attention to the fact that the transcript was certified to by the stenographer and thereupon overruled the objection and defendant’s counsel saved an exception. And to the reading of such transcript of the evidence, defendant’s counsel interposed the following objection:

“Now let the record show that the defendant objects to the reading of this testimony for the reason that the record has not been properly identified, therefore the evidence will be purely hearsay, incompetent, irrelevant and immaterial.”

In the case at bar the killing is admitted, and self-defense is relied upon. There was no real issue presented by the testimony of Dr. Markley. The theory of the defense was that the defendant was justified in killing the deceased, not that he did not kill deceased, nor that deceased died from causes other than from the wounds which defendant admits he inflicted in self-defense. A sufficient predicate having been laid for the admission of the transcript and the evidence being competent, it was not error for the trial court to permit the same to be read to the jury. Pierce v. State, 35 Okla. Cr. 67, 248 Pac. 654; Weil v. State, 47 Okla. Cr. 88, 287 Pac. 752.

Defendant next contends that the trial court erred in treating the statement to the county attorney by the defendant, shortly after the homicide, as a confession of guilt. It does not appear from the record except incidentally that the court treated this statement as a confession. The court in instruction No. 4, after defining homicide, told the jury as an abstract proposition of law what a confession was and that the same was satisfactory and effectual proof of guilt where the same was corroborated by other facts and circumstances surrounding the case and where such facts and circumstances connect or tend to connect the defendant with the commission of the offense within the rules set forth in the instruction in addition to showing the commission of the offense or the circumstances of such commission.

This instruction was correct as an abstract proposition of law. There was some conflict between the evidence of the county attorney and the defendant as to just what was said at the time the admissions were made. The court nowhere intimates in the instructions, nor is it intimated anywhere in the record, that these admissions made by the defendant were a confession. The admissions testified to by the county attorney and the defendant were clearly admissible against the defendant. Under these facts the instruction could not have been misleading to the jury nor have been prejudicial to the rights of the defendant.

The defendant further contends that the trial court erred in instruction No. 4, in that the trial court failed to define justifiable or excusable homicide. An examination of the whole charge given by the court discloses that the court did instruct upon justifiable or excusable homicide, and that the instructions given by the court when considered all together fairly stated the law of the case and were as favorable to the defendant as the facts in the case would require.

Defendant complains of other instructions and of the refusal of the court to give certain instructions requested by the defendant, but these contentions are all without merit. It is apparent from the record that the state should have filed an information against the defendant for murder instead of manslaughter in the first degree. This killing could not have been justified on the ground of self-defense. Deceased and defendant were friendly neighbors engaged in assisting each other in their work when the dispute arose which caused the killing. The defendant went to his house, procured the pistol, and returned to his field. Deceased was driving away from the premises when stopped by the defendant. The abusive language and threats of the deceased, even if made with gestures of the knife, at the distance defendant testified deceased was from him, was not such provocation or danger as would justify the taking of human life.

For the reasons stated the cause is affirmed.

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


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    HARVE OLLER v. STATE.
    No. A-7228.
    Opinion Filed May 24, 1930.
    (288 Pac. 494.)
    John W. Tillman, Fred A. Tillman, and Welcome D. Pierson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly tried with Roy Morrison on a charge of larceny of two head of cattle, was convicted, and sentenced to serve a term of imprisonment in the state penitentiary for a period of two years, from which judgment the defendant Harve Oiler has appealed.

The testimony, in substance, is that Cecil Drummond, on the 29th day of February, 1928, on his place in Osage county, near that of Floyd Oiler, had a herd of mixed cattle, mostly yearlings and some coming twos, most of which were white-face Hereford cattle; on about March 4th he saw two heads at Floyd Oiler’s place; Frank Wooten and Horace Burkhart had charge of the cattle; that no one had consent to take any of his cattle; that on March 6, 1928, the employees found this herd was seven head short. Witness stated the heads he saw were heads of whiteface Hereford cattle; the ears had been cut off close to the head; one showed to be a muley or dehorned yearling.

The testimony on behalf of the state further tends to show that the two defendants came to the house of Floyd Oiler and procured two horses from Chick Bounds, and then rode away and brought back and butchered an animal, and later got another yearling and butchered it at the same place; there was some conversation took place between the defendants and witness Bounds as to the beef being wet; that on the trip afterwards to the Oiler place they were accompanied by the state witness, at whose butcher shop the heads were taken in an effort to identify them.

W. W. Thomason, an Indian enforcement officer, and C. E. Livesay, with another officer by the name of Lancaster, and George Sutton went to the home of the defendant Morrison without a search warrant, and by accident saw some of the meat hanging up in the barn, and afterwards Thomason and Livesay went with him to the home of Harve Oiler and found some meat in the garage; that afterwards they procured a search warrant and seized the meat, and the defendants were arrested. Thomason testified that the defendant told him, in answer to interrogatories, that he had gotten the meat from Floyd Oiler. The testimony further shows that, after the defendants were arrested and taken to the office of the county attorney of Osage county, they were interrogated and their testimony and statements reduced to writing. These statements were not introduced in evidence, but were used for cross-examination of the defendant Oiler, by which it was sought to prove that he had made contradictory statements and given different testimony from his testimony on the stand.

Frank Wooten, an employee of the witness Drum-mond, stated that the Drummond cattle Avere about three-fourths of a mile north of the Floyd Oiler place; Sunday March 4th, he was at Floyd Oiler’s with Drummond and Horace Burkhart and saw two calves’ heads seventy-five or a hundred yards southeast of the house; they were white-faced long-aged calves; looked like they had been de-horned about a month or six weeks ago; he assisted in de-horning the Drummond cattle in December; the ears were cut off of these two heads; they looked like the same cattle and same age as Drummond’s; “I took the heads to Fairfax and turned them over to Bolton on the 6th day of March; Burkhart and I counted the Drummond cattle about the 15th day of February and there were 448; we counted them again on March 6th, and there were 442 head; that he saw the two heads of the calves at the butcher shop, and the ears were cut off close to the head; Floyd Oiler had one bunch of his cattle west of his house and a little bit northwest; Drummond’s pasture was north of Oiler’s house.

The substance of the defendant’s testimony is as follows: That Harve Oiler is the uncle of Floyd Oiler; he had known Morrison two or three years; Floyd Oiler was pasturing cattle in Osage county near Balston; that in his herd were several different kinds of cattle, red and white faced cattle.

Harve Oiler testified that he had often butchered some of Floyd Oiler’s cattle when he was out of meat; that Ray Morrison, George Hartzell, and Myrle Hamm went to Floyd Oiler’s place about sundown on the date alleged in the information to butcher some cattle; they went late for the reason that Roy Morrison worked until 5 o’clock in the afternoon for Fred Marshall; they butchered two yearlings the property of Floyd Oiler; they procured the services of Chick Bounds to gather the cattle, and, after they had butchered the two yearlings, they left the heads, together with the entrails, where they had butchered; the yearlings they butchered were branded seven on the left hip; the hides were so badly cut up they were worthless and were thrown into the river; the defendant hung his meat in a garage opening toward the street in Ralston; they did not steal any cattle from Cecil Drummond; the cattle belonged to Floyd Oiler.

Roy Morrison testified substantially the same as did the defendant Harve Oiler. Ray Pritchard testified on behalf of the defendant, and stated that while out hunting he found the two cattle heads south of Floyd Oiler’s and cut off the ears to encourage his hunting dogs to gO' home with him.

George Hartzell testified that the hides were worthless and were thrown in the Arkansas river from the bridge; he was the last one to leave the place where the yearlings were butchered and he saw no one cut the ears off the head.

Floyd Oiler testified for the defendant, and stated he had 205 head of cattle of all kinds, including white-faced red Herefords, about 65 head of which were in the stalk fields northwest of his house; some were branded seven, and some seventy-one on the left hip; that he was not at home the night the cattle were butchered; Harve Oiler was his uncle.

On cross-examination, the witness was asked the following question:

“Q. Did you ever have any conversation with Harve Oiler or Ray Morrison with reference to going out to your place and killing some cattle out there? A. No, sir.”

Myrle Hamm testified they went to the Floyd Oiler place and butchered the cattle; they left a quarter of the beef at Oiler’s place; he did not see or know of any one cutting the ears off the heads of the cattle they butchered.

This is, in substance, the testimony on the part of the state and the defendant.

The defendant in his petition assigns twenty errors alleged to have been committed in the trial of his case. The defendant in his brief has presented and argued the question of the sufficiency of the evidence to warrant a conviction, and argues that this case is almost entirely upon circumstantial evidence, and that the direct testimony is as consistent with the defendant’s innocence as it is with his guilt. A reference to the case-made will show that the Drummond cattle were counted on the 15th day of February, 1928, and there were 448 head at the time; that on the 29th day of February, 1928, the night of the alleged larceny, the cattle were in his pasture some distance north of Floyd Oiler’s place; that on the 6th day of March, 1928, the Drummond cattle were again counted, and at this time there were 442, there being six less than there were on the 15th day of February, 1928; the heads of the calves that were butchered by the defendant, Harve Oiler, and others with him, are shown to be the same class and kind of yearlings as those owned by Drummond; the ears of both these heads had been cut off close to the head, and the hides taken off these calves were stated to have been badly injured, so as to be considered utterly worthless. The testimony tends to show that these hides were placed in a sack at the place where the yearlings were butchered and taken in George Hartzell’s car to the bridge over the Arkansas river and thrown in the river. There is some testimony showing that a conversation was had at the time the yearlings were butchered about putting the ears of the yearlings butchered in the sack with the hides.

Ray Pritchard testified to coming along about daylight, and that he cut the ears off of these heads for the purpose of encouraging his dogs to follow him, but that he did not cut them very close to the head. The reason given for butchering these calves in the nighttime is that Roy Morrison did not get off from work until 5 o’clock in the afternoon, and that by the time he drove out to the Floyd Oiler place it was getting dark. The testimony of Floyd Oiler shows that the defendant in this case had not discussed with him the question of butchering any of his cattle, and that he was not at home at the time the defendant and other parties who came with him came to the Floyd Oiler place and butchered' these cattle, and he knew nothing about the cattle, and did not testify that any of his cattle were missing about the time these calves were butchered. No question was asked Floyd Oiler by the defendant as to whether or not he missed any of his cattle.

The defendant complains of the seventh instruction given by the court upon the question of circumstantial evidence. This instruction complained of by the defendant is not a model, but, when considered in connection with the evidence in this case and the other instructions, it substantially instructed the jury as to the law as applied to the facts in the case. We have read the record in this case and carefully studied the testimony and reviewed the facts and circumstances as they appear in the record, and we hold that the testimony is sufficient to sustain the judgment. The fact that the calves were butchered at night and the meat distributed or secreted, and that the hides were thrown in the Arkansas river, are strong circumstances tending to show that the defendants desired to conceal their action and to prevent the identity of the calves that had been butchered by them.

There is no error in the record of sufficient merit to justify this court in reversing the same.

The judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    F. E. CLARK v. STATE.
    No. A-6962.
    Opinion Filed May 24, 1930.
    (288 Pac. 489.)

      P. H. Moroney and William F. Collins, for plaintiff in error.
    J. Berry King, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter, called the defendant, was informed against jointly with Chauncey M. Davis and Earl R. Kelley, charged with forgery, was tried separately, convicted and sentenced to imprisonment in the state penitentiary for a period of seven years. Motion for new trial was filed, considered, overruled, and defendant excepted, and the case appealed to this court.

To sustain the allegations in the information the state called J. P. Flanagan, who testified in substance as follows :

“On August 28,1926, I began negotiating with the defendant respecting the purchase of the royalty interest of Leonard D. Ingram, in the southwest quarter of section 2, township 19 north, range 7 east, Creek county, Oída. I began negotiations with the defendant in the office of H. R. Johnson. Johnson and the defendant discussed the runs, and Mr. Johnson told the defendant that I was joining in the contemplated purchase of the royalty. The defendant stated he had to pay $27,500 to the negro and $2,500 to some one else, and wished to make $5,000 himself. I agreed to pay $36,000 for the royalty interest. I told, the defendant I did -not know Leonard Ingram, and that he would have to buy the royalty from Ingram, and that I would in turn buy it from him. The defendant stated he had the inside track; that a Muskogee bank held a mortgage for $15,000, and that he had left his check in payment of that sum, and was working with Napoleon Scott, who was getting Ingram to make the sale. I was later advised that Ingram would be in the office the following day. The defendant then stated he would go to Sapulpa with Ingram and have the instrument recorded before the money was paid. On September 2, 1926, the defendant and Johnson, accompanied by the colored man, drove to my home. I told the defendant that Earl Kelley was acquainted with Ingram, and the defendant stated Kelley had identified him. Defendant stated he had a deed, and he would drive to Sapulpa and place it on record. Defendant, Johnson, and the negro that was with them left, and I saw them later at the Exchange National Bank building.
“The bank held a draft drawn by Ingram upon the defendant for $12,500. The defendant gave me a deed, and I delivered him a check for $36,000 for the property. Exhibit 1 is the deed from Ingram to the defendant. Exhibit 3 is the deed from the defendant to me. Exhibit 4 is a receipt signed by C. H. Garrett for $15,000. There was in the bank at the time of this transaction a check for $15,000 from the defendant, upon which was written, ‘Full payment of mortgage and note on the Southwest 2-19-7, to First National Bank of Muskogee.’ The defendant promised to get a release of the mortgage. I took a transfer order to the Prairie Oil & Gas Company. Later I was served with a summons in the suit of Leonard D. Ingram to quiet title. An investigation was begun. Johnson, the defendant, and myself went to Muskogee and tried to locate Napoleon Scott. We learned that he was away. We went to the office of Clark Compton, chief of police of Muskogee, and tried to locate C. H. Garrett. Compton said that Clu Garrett was the only Garrett he knew in that community. The defendant talked to Clu Garrett, and he denied any knowledge of the transaction. Defendant told me he paid Kelley $2,500. The whole deal was consummated in the Exchange National Bank on September 2, 1926. I don’t recall that Clark told me at any time that he knew Leonard Ingram, or that he had any dealings with Ingram.”

H. R. Johnson in substance testified for the state:

“I began negotiations with the defendant for the purchase of this royalty in August, 1926, when the defendant appeared at my house claiming to have the royalty interest for sale. We examined the wells and the runs. Defendant stated he was able to deliver the property and would have Leonard Ingram in the Exchange National Bank on the 1st day of September, 1926. He failed to appear. The defendant said Ingram had given him a mortgage and blank deed. On September 1st the defendant advised me that Leonard D. Ingram would be there the following morning, and about 8 o’clock a. m., the morning of the 2d, the defendant appeared at my home with Ingram. We went down to the Exchange National Bank. The defendant Clark went out of the bank and brought in Leonard D. Ingram, and Ingram signed the transfer order. When the order was signed, there was $27,500 paid to' Leonard D. Ingram. Mr. Flanagan suggested that Ingram take a cashier’s check, which he declined to do. Mr. Flanagan then suggested to the defendant that it would be a good idea for him to go back with the boy to Muskogee, and see that the negro boy arrived there safely with the amount of money he had.”

Chauneey M. Davis also testified in substance for the state that he was acquainted with Earl Kelley, had kno wn him since 1924; saw him on the morning of September 1st, in Muskogee. Kelley asked the witness if he would like to make some money, and witness answered in the affirmative; drove with Kelley in a Ford coupe to Tulsa, the night of September 1, 1926. When they reached Tulsa they went to the apartment of the defendant, and Kelley got ont and went into defendant’s apartment. Kelley and the defendant came ont together, and—

“We got in a Pierce-Arrow coupe. Kelley went in his car, and the defendant and I drove in the Pierce-Arrow. We three drove to the northwest part of the city to the residence of a man by the name of Boyles, where Kelley introduced the witness to Boyles as Mr. Davis. We returned to the Security National Bank building, where Kelley and Boyles got out of the car. The defendant and I went on to Fourth and Boston and parked. The defendant then got out of the car and left me alone in the car. A man was waiting in the lobby of the Clinton building. The defendant and Kelley got out of the car, and the three went upstairs and remained for some time. This was about 3 o’clock in the morning. I remained in the car and Kelley brought me a sandwich and a bottle of beer. Kelley then started away, and reached in his pocket and pulled out a piece of paper, and said he had better have me sign this, and told me to sign Leonard D. Ingram. I told him he must be crazy. ‘All right, big boy, you are going to- sign this, or we are going to do away with you.’ Kelley pulled out an automatic, and the defendant told me I was going to sign because Mr. Johnson had been looking for him to produce for three days.
“Kelley called me Ohauncey and nothing else. They told me to sign the paper as I was going to- sign it at the bank, and said we have to go to the bank; Kelley said, ‘Write Leonard D. Ingram, N. B. 210.’ I started to add, per C. M. D.’ and he said, ‘Don’t do anything like that’; Mr. Clark says, ‘You are not smart as you think, I know what I am doing, I have studied this for years and I forgot a lot of their stuff.’ He gave me a long lecture. After the paper was signed, the defendant put it in his pocket. This paper I signed there was torn up. Exhibit 1 I signed in the Exchange National Bank. We went to1 the home of Lee Smith or A1 Westerman about 7 o’clock and returned to the bank. Some papers were made out, and I signed something as Leonard D. Ingram, N. B. 210. The defendant impressed upon me that all the police and everything was behind him and to do1 anything he stated. On the way out to Mr. Johnson’s house defendant told me to be careful, that he would do away with me if I made a balk. The defendant also told me to- insist on cash. At Sapulpa I remained in the car while the defendant went to the abstract office. While in the bank, the mortgage was returned and I started to put it in my pocket, defendant tore the end off, and I received the money, $15,000 in one roll and $12,000 and a $1,000 bill in another; I put them in my pocket. The defendant and I then left in the Pierce-Arrow and went to the defendant’s apartment. The defendant took me in a room and told me to give him that money; I pulled it out and handed it to him. He told me to get out of town, that he would take me to Muskogee. Defendant told me to go< to Los Angeles or old Mexico, that he would bear the expense, and that if I returned he would have me put in jail. Defendant gave me $3,000 and said that should run me two- years. After that the defendant gave me three $50 bills, and told me never to tell any one about it, as he knew what he was doing. Kelley came and took charge of me and drove out the Bixby road, and defendant soon appeared, and had me prepare a lease and sign it in the name of C. H. Garrett. Exhibit 4 is the paper I signed; did not see Napoleon Scott upon arriving at Muskogee.
“I had known Leonard D. Ingram since 1919; I had worked for his stepfather. I had known Napoleon Scott since 1905. I tried to dispose of the Ingram royalty interest in July, 1924. I knew it was in Creek county; first saw the defendant in Tulsa, September 2, 1926; was not introduced to the defendant, and did not tell the defendant my name; had had dealings with Kelley before this time.”

P. A. Boyles then testified to knowing Earl R. Kelley and to meeting the defendant in September, 1926; that Kelley came to the de-fendant’s home and wanted to get his key to go to the office and see the roll book.

A. H. Westerman testified to tbe transaction which occurred in the Exchange National Bank, and that he saw the instrument signed, and that the negro signed the instrument and acknowledged he signed the same as his free voluntary act and deed. Lee Smith corroborated in substance the testimony of the witness Westerman as to what took place in the bank between the parties. This is in substance the testimony introduced on behalf of the state.

The defendant, testifying in his own behalf, stated he met H. H. Johnson the latter part of August, 1926; met E. It. Kelley about the middle of that month; prior to that time he had never had any dealings with E. It. Kelley; that he first saw the negro about 1:30 the morning of September 2, 1926. He never had any business with Leonard D. Ingram, and did not know there was such a negro in existence until about ten days before the deal was consummated.

“The sale of the royalty of Leonard D. Ingram was first mentioned to me by Napoleon Scott; Kelley called me and we met in the Clinton building. We went to Muskogee with Kelley in Kelley’s car. Up to this time I had never seen Napoleon Scott. When we went to Muskogee, Scott claimed he could go to Chicago and get Leonard Ingram if some one would pay the expenses of the trip, and that he would bring Ingram back and arrange for the sale of his royalty. On the return from Muskogee to Tulsa Kelley told me all about the royalty, and I then asked several parties if they had any prospective purchasers for the royalty interest. Mr. Maddox asked me to meet him the next morning; Napoleon Scott said he could buy this royalty for |27,500; Maddox and I went to the office of Mr. Johnson where the property and price desired was discussed. Mr. Johnson and I went and checked the property. I got an abstract on the property at Sapulpa. Two or three days prior to the actual transfer I met Mr. Flanagan and he was looking to Kelley to make the deal through Scott. Kelley asked me for money for Scott to make the trip to Chicago. This was five or six days before the deal was closed. Kelley told me Scott had gone to Chicago. This was the first deal I ever had with Creek freedmen. The negro, wlm later claimed to be Chauncey Davis, came to my apartment September 2d, and was introduced to me as Leonard Ingram and asked me if I was the man who was supposed tO' be buying the royalty. He presented a check for $15,000 which I had given to Kelley, and asked me if I was ready to pay the other $12,500. The negro did not eat breakfast at my house. I took him to a restaurant, later I came back and got the negm and rode around and discussed his life and what had been learned from the abstract. I was convinced he was Leonard D. Ingram. Before going, to Mr. Johnson’s, the negro signed the royalty deed to me, and it was deposited in the Exchange National Bank with a draft for $12,500, and my check for $15,000 for the deed to me was acknowledged. We drove down and asked Kelley if the boy was the one for whom we were looking, and Kelley and the negro had some conversation, and Kelley finally advised me he thought he was the boy. We then went o Johnson’s house, and Johnson asked who we could get to identify the boy. I stated I did not know, and Johnson said the only one he knew was Earl Kelley. I told Johnson what Kelley said, and Johnson said that was poor identification. We then drove to Flanagan’s, and some one suggested that the boy he brought to the office of Johnson, and we finally decided to go into the bank and close the deal there. After the deal was closed, Johnson and- Flanagan suggested that I take the negro to Muskogee, and I did so, arriving at Muskogee about 2 o’clock in the afternoon. We drove down Second street and stopped the car. The negro and Scott were to get a written release for the additional $15,000. I had seen Scott once, and I took the negro at Muskogee to be Scott; received the receipt the following day, in an envelope I had addressed to myself and left with the clerk of the Baltimore Hotel, Muskogee. I first learned there was a question about the validity of the transfer when a little negro went up to the Johnson office and claimed somebody had forged this deed. The negro was named Chandler. He filed a snit against me and others in the federal court to quiet title to Leonard D. Ingram, and cancel the deeds.”

In rebuttal G. J. Eastwood testified that he had charge of the boohs of the Exchange National Bank, and had the records of the individual checking accounts; that on the 2d day of September, 1926, the defendant’s balance was $2.10; August 27, 1926, defendant’s balance was $2.60.

J. P. Elanagan, called in rebuttal, stated that:

“After the defendant Clark received the deed he did not ask Mr. H. It. Johnson or myself to go with him to Sapulpa; he made the remark that he was going to Sa-pulpa to record the deed, with the idea of seeing there was nothing ahead of it. I did not make any agreement .to meet him at the bank at 10:30. I was ready to buy the property when he was ready to deliver it.”

Mr. Johnson was called, and testified that, on the day of the delivery of the deed to Mr. Flanagan, Mr. Flanagan paid $36,000. Mr. Clark did not ask him to go with him to Sapulpa. He further testified:

“I did not make any statement to the defendant that I wanted him to put me out there as I did not want to be seen uptown with the negro; nothing like that occurred. I did not make any statement to him that I did not want the negro to be seen down town in the business part. We came over from Mr. Flanagan’s to Eighteenth street, and north from Eighteenth to Boulder and north on Boulder to Fourth and Boulder, that was the nearest to my office.” On cross-examination the witness stated that he did not have any conversation with Mr. Maddox that morning or the day before. “I do not know what Mr. Maddox was paid. I recall receiving $200 from F. E. Clark; this was for money I had loaned Earl Kelley in 1924.”

The defendant has assigned 20 errors álleged to have been committed in the trial of his case. The defendant, in discussing Ms first assignment of error, urges, in addition to the assignment in the original brief, that the information in this case was and is insufficient, and his demurrer leveled against the same should have been sustained. The defendant sets out in his brief a copy of the information, and the deed attached to the information as an exhibit, and urges that the motion of the defendant to quash the information, for the reason that the facts stated therein are insufficient to constitute a public offense against the defendant; that the information is fatally defective, for the reason that there is a fatal variance between the purport and tenor clause of the information. The defendant, in said information, is charged with forging the name of Leonard D. Ingram to certain instruments in writing, wherein it is alleged that such instrument in writing purports to' transfer and convey to one F. E. Clark the right, title, and interest of the said Leonard D. Ingram, in andto the following described lands: Describing the same as the southwest quarter of section 2, township 19 north, range 7 east, Creek county, Okla.; that the language used in the purport clause conveys a fee-simple title in and to said land; and the defendant further contends that, as shown by an inspection of the tenor clause attached to said information, the forged deed does not convey, or purport to convey, to the said F. E. Clark any interest in the said real estate or fee-simple title in or to said land, but only conveys, according to the tenor thereof, the right, title, or interest of the said Leonard D. Ingram in and to an undivided one-half interest in all the oil and gas and other mineral in and under the said land that may be pro - duced.

It is further urged by the defendant that in the purport clause of the information the property alleged to have been conveyed by the forged instrument is described as follows: The right, title, and interest of the said Leonard L. Ingram in and to the southwest quarter of section 2, township 19 north, range 7 east, Creek county. In the tenor clause, conveys an undivided one-half interest in all the oil and gas and other minerals in and under said land that may be produced, together with the right of ingress and egress at all times for the purpose of mining, drilling, and exploring said land for oil and gas and other minerals, and removing, the same therefrom.

The defendant in support of his contention sets out in full the case of Cook v. State, 23 Ariz. 55, 201 Pac. 397, which he says by analogy throws some light on the question raised in his assignment. A careful study of this case shows that the instrument set out in the information and the proof were different, and thereby is not by analogy in point in this case. In this case the alleged forged instrument is attached to the information, and described as Exhibit A. The proof shows that the copy attached to the information is the same as the forged instrument introduced in evidence. The Supreme Court of Oklahoma has decided in a great many cases that, where a written instrument is made the foundation of a civil case, the original or copy thereof should be filed as an exhibit to the complaint, and, in the case of a variance between the complaint and the exhibit, the exhibit must control. Southern Surety Co. v. Municipal Excavator Co. et al. 61 Okla. 215, 160 Pac. 617, L. R. A. 1917B, 558.

We hold that in this case a copy of the alleged forged instrument was attached to the information, which is controlling as to the offense alleged against the defendant, and that the demurrer of the defendant to the information was properly overruled.

The second assignment urged by the defendant is the misconduct of the court during trial of the case. The record has been read with a great deal of care, and, while there were many statements made by the court that should not have been made, yet we fail to find any statement made by the court of sufficient importance to indicate that the court was biased or prejudiced against the rights of the defendant, or that he had said anything which tended to prejudice the right of the defendant before the jury. This assignment is not of sufficient merit to justify the court in reversing the same.

The defendant in presenting his third assignment urges that the evidence in this case is wholly insufficient to support the verdict and judgment rendered against him, and that his demurrer interposed at the close of the state’s evidence should have been sustained. With this contention we cannot agree. The testimony is conclusive that the defendant in this case began negotiations with the witness J. P. Flanagan for the purchase of the royalty interest of Leonard D. Ingram for the lands described in the information, and that the negotiations continued until about the 2d day of September, 1926, when the defendant, acting with Chauncey M. Davis and Earl R. Kelley, presented Chauncey M. Davis to the said J. P. Flanagan and introduced him as Leonard D. Ingram; and the defendant had a purported deed, which he claims had been signed by Leonard D. Ingram, to a one-half interest in and to all the oil and gas and other mineral's in and under the lands described as belonging to Leonard D. Ingram, N. B. 110; that the said defendant and the negro claimed to have been Leonard D. Ingram, who subsequently developed to be Chauncey M. Davis, claim to have gone to Sapulpa and filed the mineral deed, stated the deed had been filed, and that there was nothing against it, and the deal was closed, and the defendant in this case delivered a deed from himself to J. P. Flanagan, and the said Flanagan paid the negro- who claimed to be Leonard I). Ingram, who was afterwards found to be Chauncey M. Davis, the sum of §36,000. The testimony in this case shows beyond question that the purported conveyance of the royalty interest from Leonard D. Ingram to F. E. Clark was a forgery, and that the defendant in this case was a party to the forgery. Under the record in this case no unbiased jury could have found a verdict other than a verdict of guilty. The evidence is amply sufficient to sustain the conviction.

The defendant, under his fourth assignment, contends that the court committed prejudicial error in allowing, the jury to separate in the absence of the defendant and his counsel, and because of said separation his rights were prejudiced. We have read the record and examined the same very carefully to see whether or not there was any misconduct on the part of the jurors during the separation of the jury, and have reached the conclusion that the rights of the defendant were not prejudiced by reason of the court permitting the jurors to separate before the case was finally submitted to the jury.

The defendant complains in his fifth assignment of the instructions of the court. We have examined the instructions, and find, taking them in their entirety, they correctly stated the law applicable to the facts in this case.

There are other errors assigned that are not discussed in this opinion, for the reason that, after a careful examination of the same, they are not sufficient to justify a reversal. There are no errors in the record sufficient to warrant the court in reversing this case.

The judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    SOL LONGENBAUGH v. STATE.
    No. A-7478.
    Opinion Filed May 24, 1930.
    (288 Pac. 611.)
    Chas. R. Weaver, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to serve a term of 60 days in the county jail and to pay a fine of $250.

The record discloses that defendant pleaded guilty to the charge of having the unlawful possession of intoxicating liquor. At the time he had no attorney. He conversed with the constable who arrested him as to the punishment to be assessed in case of a plea of guilty. The constable conferred with the county attorney, who declined to recommend the minimum sentence, and he then conversed with the county judge and informed defendant that in case of a plea of guilty he would receive the minimum sentence. The minimum was not assessed, and defendant filed a motion for new trial setting out the facts, which motion was considered by the court. Some controversy appears to have arisen between the county judge and the constable, the county judge being of the opinion that the constable did not correctly disclose all the facts as to the age and condition of defendant at the time of the conversation in reference to the punishment. At the time of sentence, after hearing testimony of the constable, the defendant and the wife of defendant touching the agreement under which defendant entered his plea of guilty, the judge in part said:

“* * * I think we have to depend upon the officers for information, particularly with reference to the plea of guilty where there is no evidence, the court must depend on facts on which to base his judgment and sentence. That must depend on information supplied by the arresting officer. I don’t think and I am not saying that the constable intentionally, — and am not inferring — that he intentionally deceived the court. But the fact remains, according to Mr. Jennings’ own testimony, that the court was misled. * * * I was led to believe that this man was just about in the last stages of tuberculosis and the fact developed that he has probably a slight case and not on his last stages of tuberculosis. * * * I feel that the court was misled and I want it to be understood that there is no intention to mislead any defendant on the part of the court. * * * If testimony had developed, that after all the facts had been represented to the court, the court had indicated a minimum sentence and that had been communicated to the defendant and he entered his plea of guilty, then I would be inclined to set the judgment aside, but the court was not in possession of all the facts.* * *”

The arresting officer, of course, had no authority to make an agreement as to the punishment which would be binding on the county attorney or the court. The law, however, favors trials, and, where an officer in seeming authority makes a promise which may reasonably have influenced and brought about a plea of guilty, and the promise is then not carried out, upon such facts appearing to the court the defendant should be permitted to with; draw his plea of guilty. Hart v. State, 29 Okla. Cr. 414, 233 Pac. 1095; Cook v. State, 45 Okla. Cr. 69, 281 Pac. 819. Under all the circumstances shown by the record, justice requires that the punishment assessed against defendant should be reduced to a fine of $50 and to confinement in the county jail for a term of 30 days.

As modified, the case is affirmed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


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    L. W. WOLF v. STATE.
    No. A-7402.
    Opinion Filed May 24, 1930.
    (288 Pac. 610.)
    Waldrep & Haight, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of having the unlawful possession of whisky, and was sentenced to serve a term of sis months in the' county jail and to pay a fine of $500.

The record discloses that at the time charged certain officers with a search warrant searched the premises of one Allen in the city of Shawnee and found defendant and several persons there, whom they searched. They took a pistol from the person of defendant, and then arrested him. As they were leaving, they had him point out his car; in it they found six gallons of whisky. Judgment was entered in March, 1929; the appeal lodged in this court in May, 1929. No briefs in support of the appeal have been filed. If the errors had been urged, there might have been a serious question as to the validity of the search of defendant and his car. • The errors, however, are not fundamental. This court has many times held that, where no brief in support of an appeal from conviction for a misdemeanor is filed and no jurisdictional or fundamental error is apparent, the case will not be reversed.

The case is affirmed.


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    H. C. PEAVLER v. STATE.
    No. A-7434.
    Opinion Filed May 24, 1930.
    (288 Pac. 610.)
    King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of selling one-half pint of whisky to Lew Wheeler, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. From the judgment and sentence, the defendant has appealed to this court.

The testimony in this case shows that the defendant has a place of business at a point in Pontotoc county known as Gilmore City. Lew Wheeler testified that he and his wife and a man by the name of Burdwell drove to tlie place of business of the defendant, and that he and Burdwell went in and bought a half-pint of whisky. Burd-well is not called as a witness. Wheeler further testified that at one time prior to this time he was in the defendant’s place of business with Mace Patterson and that Patterson bought whisky.

Mace Patterson was called as a witness, and testified be was never in the place of business of the defendant, and had never bought any whisky from the defendant when the witness Wheeler was present or any other time.

Oer the objection of the defendant, the court permitted Mrs. Nina Wheeler, wife of the said Lew Wheeler, to testify that Wheeler said he was going to stop at defendant’s place for the purpose of buying some whisky. The wife was asked if the witness Wheeler had any whisky before he got to defendant’s place, and she said he had a drink.

There is no testimony showing that the witness Wheeler had any whisky after he left the defendant’s place of business.

The defendant has assigned six errors alleged to have been committed in the trial of his case; the sixth assignment being error of the court in overruling the defendant’s motion for a new trial. All of the questions raised in this case are included in this one assignment. An examination of the testimony in this case shows that the prosecuting witness Wheeler’s testimony stands alone as to his buying the whisky from the defendant.

The defendant denies selling any whisky to the witness Wheeler, and Wheeler is contradicted in his testimony by Mace Patterson. The testimony of Nina Wheeler, wife of the witness Lew Wheeler, is purely hearsay as to the witness stopping at the defendant’s place of business to buy whisky, and was not made in the presence of the defendant. This court has repeatedly held that hearsay evidence is not admissible. McRae v. State, 8 Okla. Cr. 483, 129 Pac. 71; Spear v. State, 7 Okla. Cr. 379, 123 Pac. 852; Ellington v. State, 24 Okla. Cr. 67, 215 Pac. 964; Bohannan v. State, 24 Okla. Cr. 103, 215 Pac. 1078.

The testimony of Nina Wheeler, wife of Lew Wheeler, stating that Lew Wheeler said he was stopping at defendant’s place to get whisky, made in the absence of the defendant, was hearsay evidence and inadmissible, and was prejudicial to the rights of this defendant. If this hearsay evidence had been excluded from the jury, the verdict of the jury might have been different, as the defendant denied selling Wheeler any whisky, and Mace Patterson contradicted the witness Wheeler as to his testimony that he was with Patterson at the defendant’s place when Patterson bought whisky of the defendant.

For the errors herein stated, the judgment is reversed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    A. B. SADLER v. STATE.
    No. A-7433.
    Opinion Filed May 24, 1930.
    (288 Pac. 608.)
    Ray - & Thomas, for plaintiff in error.
    J. Berry King, Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted in the county court of Comanche county, Okla., on a charge of having in his possession intoxicating liquor, to wit, two gallons of whisky, with intent to violate the prohibitory liquor laws by bartering, selling, giving away, and otherwise furnishing the same to others, and was sentenced to pay a fine of $250, and to be confined in the county jail for 90 days, from which judgment the defendant has appealed to this court.

The state, to maintain the allegations in the information, called Jess Ansel as a witness, who, in substance, stated that, on the 15th day of July, 1928, I went out to search the defendant’s place; I had a search warrant; I did not know the name of the defendant. The testimony of the witness shows that the original search warrant had been lost and the state offered a copy in evidence; the witness stating that the description of the land in the copy was the same as in the original, that it was signed by the same justice of the peace, and had the same return made as on the original.

On cross-examination, witness stated he came out to defendant’s place about 4 o’clock; they searched the house of the defendant. The testimony was then objected to by the defendant on the ground that there had been no showing made that the affidavit was properly made upon which the search warrant was issued. Then some conversation took place between the county attorney and the defendant’s attorney, and the defendant and the state agreed that Exhibit 1 was a copy of the search warrant issued by D. M. Jdoncrief, Sr., authorizing the officer to search the place and premises of the defendant. The affidavit which authorized the issuing of the search warrant was introduced, and marked “Exhibit 2” for the purpose of identifying it, and defendant then renewed his objection to the introduction of any testimony for the reason that the affidavit introduced was not sufficient to authorize the searching of the defendant’s home.

The objection of the defendant was overruled, and defendant duly excepted. The county attorney then, in open court and in the presence of the jury, stated to* the court that he had examined the affidavit for the search warrant, and believed it to be insufficient.

The court then made the following statement:

“All evidence obtained by reason of the search of the house and yard of the defendant under the search warrant just introduced in evidence will be excluded and you are instructed not to offer any evidence obtained by reason of the search of the residence, outbuildings and yard of defendant under said warrant. The jury are instructed not to consider any evidence heretofore offered by the state regarding anything found in the house, outbuildings or yard of the defendant.”

The record discloses that, after the court had advised the jury not to> consider any of the testimony of the witness with reference to anything, found in the house, outbuildings, or yard of the defendant, the state then proceeded to ask the witness:

“Q. Mr. Ansel, out there that afternoon, did you make any search on that quarter section of land upon which the defendant’s house is situated and not on his premises, for liquor? A. Yes, sir; we walked over the place.
“Q. Did you find anything on that quarter section of land? A. Yes, sir; about forty-seven yards east from the house I found four one-half gallon fruit jars full of whisky. It was hidden in some crab grass.
“Q. You may state whether or not you found any tracks leading to or from this whisky in any direction? A. Yes, sir; from the east door of the house. Mr. Thomas: We object anything he saw on the premises of the defendant.

“The Court: Sustained.

“By Mr. Tyree: Mr. Ansel, omit anything you found on the premises of the defendant, and tell us what you found in the cotton field? A. Forty-seven yards east of the house we found two gallons of whisky. We found steps leading to the whisky.
“Q. Could you tell they came from the door of the defendant’s house? A. Yes, sir; they did. I followed these tracks to the end of the cotton row, right out to where we found the whisky.”

On cross-examination, witness stated that the defendant’s residence and filling station was on the corner of the place, an intersection of two lines of the road; that the defendant lived in the northeast corner of the intersection.

W. E. Nix stated he was a deputy sheriff; he was with Mr.- Ansel when he found the two gallons of whisky near the residence of the defendant, on July 15,1928; the whis-ky Avas hidden in some grass about 50 steps from the premises of the defendant; there were tracks going and coming from the whisky; the tracks were a fair man size; the ground was sandy, but Avet; “I did not notice where the cotton had been freshly chopped or hoed; this filling station was on the highway running north and south, and one running, east and west; the east and west road running near where the whisky was found was just a country road; the tracks leading to the whisky and back had been made since the rain; I did not see any tracks going beyond where the whisky was.” Witness J. S. Hanks testified it had rained the night before the search was made.

The defendant, A. B. Sadler, testified in his own behalf that he had lived in the county for several years; on July 15, 1928, the officers came out to his place; “I was running a filling station, living there with my wife and family; I did not own or control any part of the place except the filling station; Harland Mitchell was living on the quarter section of land and was cultivating it; I did not control any part of it whatever; Mr. Mitchell was making a crop on the place, had cotton choppers; Mitchell was living something like a quarter of a mile from where I lived; the whisky claimed to have been found was not mine; I did not put it there nor did I know it was there; the fence row was grown up with grass and weeds; I handled oil and gas and cold drinks; I have a well of water there on the corner; the hands working in the field that were employed by Mr. Mitchell would buy cold drinks at my place.”

The defendant has assigned nine errors alleged to have been committed by the court in the trial of his case. The first assignment of the defendant is that the court erred in overruling his motion for a new trial; the fourth, the verdict returned against the defendant is not sustained by sufficient evidence and is contrary to law. These two assignments are all that it is deemed necessary to consider in this case.

The record discloses that the officers of the law went out to defendant’s home with a search warrant -and searched a quarter section of land and buildings on the same, and, when the affidavit for the search warrant was produced in court, the defendant objected to any testimony on the ground that the affidavit was insufficient to justify the court in issuing a search warrant to search his premises, and, after the court had overruled the motion of the defendant, the county attorney then confessed that the affidavit for the search warrant was insufficient, and the court instructed the jury not to consider any evidence obtained by reason of the search of the residence, outbuildings, and yard of the defendant under said search warrant, and not to consider any evidence heretofore offered by the state regarding anything found in the house, outbuildings, or yard of the defendant. Under that instruction of the court, and the confession of the county attorney that the affidavit was insufficient to predicate a search warrant to search the house and outbuildings on the premises of the defendant, the county attorney proceeded to inquire and brought out the only testimony which tends to connect the defendant with the whisky, as follows:

“The witness Ansel stated they found steps leading to the whisky.
“Q. Could you tell they came from the door of the defendant’s house? A. Yes, sir; they did. I followed these tracks to the end of the cotton row, right out to where we found the whisky.”

This evidence, given by the witness Ansel in response to the question of the county attorney, was secured under and by virtue of the search warrant, and was brought out by the county attorney after the court had advised the jury not to consider any testimony secured by reason of the void search warrant in the house, premises, and yard of the defendant. Without this testimony to show the tracks they claim they saw going toward the whisky, there is not a single circumstance tending to connect the defendant with the whisky found.

It was found on premises not under the control of the defendant, and about 45 or 50 yards from the defendant’s house, inside of the Mitchell field. This testimony was inadmissible, and there is no competent testimony which tends to connect the defendant with the whisky. The fact that the whisky was found in another inclosure near the defendant’s home, over which inclosure the defendant had nothing to do, amounts to nothing more than a suspicion. The testimony is insufficient to sustain the conviction.

The judgment is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    CARL PARISH v. STATE.
    No. A-7212.
    Opinion Filed May 24, 1930.
    (288 Pac. 1117.)
    Mounts & Chamberlin, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county of assault and battery, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

Defendant was charged with assault and battery with a dangerous weapon with intent to do bodily harm, and was convicted of the included offense of assault and battery.

No briefs in support of the appeal have been filed. An examination of the record discloses that at the time charged, defendant, who assisted in an automobile repair shop, had a dispute with one Lee Higgs in reference to some work, during the course of which he struck Higgs in the head with an iron pulley, inflicting a serious wound and a slight fracture of the skull. The jury was extremely lenient under the circumstances shown by the record. The testimony would sustain a conviction for the higher offense. There is no material error apparent.

The case is affirmed.


text:
    MILTON ANDERSON v. STATE.
    No. A-7375.
    Opinion Filed May 24, 1930.
    (288 Pac. 1114.)
    Clay Snodgrass, for the plaintiff in error.
    J. Berry King, Atty Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Jackson county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to serve a term of 90 days in the county jail and to pay a fine of $250.

The record discloses that at the time charged certain officers with a search warrant went to the residence of defendant, and, as they approached the house, some one in the kitchen poured out a quantity of whisky. In the car of defendant near the house was found a jar containing a half gallon of whisky.

Judgment was entered in January, 1929; the appeal was lodged in this court in May, 1929. No briefs in support of the appeal have been filed. The evidence reasonably supports the judgment. No material error appears in the record.

The case is affirmed.


text:
    DICK DRIGGERS v. STATE.
    No. A-7414.
    Opinion Filed May 31, 1930.
    (288 Pac. 1115.)
    Ray & Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Comanche county on a charge of transporting intoxicating liquor and was sentenced to pay a fine of $200 and to serve 60 days in the county jail.

The appeal is by transcript. Judgment was rendered in February, 1929, and the appeal was lodged in this court in June, 1929. No briefs in support of the appeal have been filed. An examination of the record discloses no material error.

The case is affirmed.


text:
    Ex parte JOSE ALVARADO.
    No. A-7751.
    Opinion Filed May 31, 1930.
    (288 Pac. 1113.)
    T. A. Aggas, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus. The petitioner alleges that he is illegally restrained by the warden of the state penitentiary at Mc-Alester, Oída.; that in January, 1926, he was convicted of burglary in the district court of Osage county and was sentenced to serve a term of seven years in the state penitentiary; that he appealed to this court and the case was affirmed. Alvarado v. State, 38 Okla. Cr. 360, 261 Pac. 983. Petitioner alleges that the verdict of the jury and the sentence based thereon is void, and states that there were thirteen men on the jury which returned the verdict. He attaches a copy of the verdict and minutes of the court clerk to his petition. These do not support the allegation made. It appears that in transcribing the record there is a clerical error in the name of one juror.

The application is without merit and the writ is denied.