text:
    RAY OTT v. STATE.
    No. A-9502.
    Jan. 6. 1939.
    (86 P. 2d 341.)

      C. D. Roseman, of Enid, and Charles Swindall, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant, Ray Ott, was by information charged in the district court of Garfield county, with a violation of the prohibitory liquor laws of the state of Oklahoma, again and for the third time; was tried, convicted and sentenced to serve a term of two years in the state penitentiary, at McAlester, and to pay a fine of $500 and cost. Motion for new trial was filed, considered, overruled and defendant appeals.

The defendant alleges eight errors committed by the trial court. After an examination of the record it is only deemed necessary to consider the defendant’s first assignment of error, which is as follows:

“That the court erred in overruling defendant’s motion to suppress the evidence in said cause; to which order and ruling of the court, the defendant at the time excepted and saved an exception.”

The affidavit for the search warrant in part is as follows:

“That malt, spirituous, vinous and fermented liquors are being unlawfully kept for sale and are being sold in the building located at 21814 West Broadway street, city of Enid, in Garfield county, Okla., and known as occupants unknown and is being used as a place for storage for such liquors and is a public resort maintained for the illegal sale and distribution of such liquors.”

It will be seen the affidavit upon which the search warrant seems to be predicated stated the place to be searched is a building located at 2181/% West Broadway street, in the city of Enid, Garfield county, Okla., and known as occupants unknown.

When the search warrant was issued based upon this affidavit, it in part states:

“I find from the affidavit filed and from the evidence of witnesses sworn and examined that there is probable cause to believe that malt, spirituous and vinous liquors are kept for sale and unlawfully sold in a building located at 2191/2 West Broadway street, city of Enid, and known as occupants unknown, in Garfield county, Okla.”

Section 7012, C. O. S. 1921, now 2638, O. S. 1931, 37 Okla. St. Ann. § 87, reads as follows:

“No search 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.”

In Preston v. State, 42 Okla. Cr. 372, 276 P. 784, this court had this question before it, and in the second paragraph of the syllabus stated:

“A search warrant authorizing the search of a building at 700 North Hightower street is not authority for the search of a building at 702 North Hightower street.”

In United States v. Rykowski, D. C., 267 F. 866, it was held that premises described as belonging to William Kozman, 123 Garfield street, insufficiently described premises at 123 North Garfield street.

In United States v. Chin On, D. C., 297 F. 531, it is held that a warrant authorizing a search of a building at 24 Liberty street, did not authorize the search of a building at 23 Liberty street.

In Miller et al. v. State, 34 Okla. Cr. 103, 245 P. 68, 69, in the body of the opinion the court stated:

“It is evident that it was the intention of framers of the Constitution and the lawmakers to limit the right of search to places and premises where a proper affidavit showing probable 'cause was filed, particularly describing the premises to be searched.” People v. Musk, 221 Mich. 578, 192 N. W. 485; Scogin v. State, 61 Okla. Cr. 348, 68 P. 2d 111.

In Leary v. State, 61 Okla. Cr. 298, 67 P. 2d 972, in the fourth paragraph of the syllabus the court said:

“Where a conviction is based solely on evidence obtained by an unauthorized search and seizure, admitted over timely objection and exception, the judgment will be reversed.”

There are many other decisions from this state construing the statute, and holding there must be a particular description of the place to be searched. It is not deemed necessary to extend this opinion further.

The search warrant in this case authorized the searching of a building at 2191/2 West Broadway street, Enid, Okla. The affidavit filed to obtain the search warrant described the building as located at 2I8I/2 West Broadway street, Enid, Okla. It is not disputed that 2181/2 was on the opposite side of the street from 2191/2. The search warrant in this case was issued without authority of law and not supported by an affidavit as required by the statute.

The motion of the defendant to suppress the evidence was well taken and should have been sustained by the trial court. For the reasons herein stated the case is reversed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    CLARENCE WAKEFIELD v. STATE.
    No. A-9434.
    Jan. 13, 1939.
    (89 P. 2d 330.)

      John W. Whipple, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and L. J. York, Co. Atty., of Stillwater, for the State.
   BAREFOOT, J.

The defendant was tried and convicted in the county court of Payne county, of the crime of maintaining a place where intoxicating liquors were kept for sale, and was sentenced to pay a fine of $50, and serve 30 days in the county jail, and has appealed.

For a reversal of this case, it is urged:

(1) That the court erred in overruling a motion to suppress the evidence in this case, and

(2) That the court erred as a matter of law in the form in which instruction No. 3 was given.

The first contention is based upon the fact that the court overruled a motion to suppress the evidence, which was to be offered in this case, and permitted the officers to testify to the finding of intoxicating liquor upon the premises of the defendant by reason of a search conducted thereon on the 15th day of July, 1937.

The facts as revealed by the record are that the defendant operated a barbecue stand in the city of Stillwater. There was also located a toilet on the back end of his lot, and to which the public had access. It was here that the liquor was found.

On the date of the search the sheriff of Payne county, in company with two deputies and a police officer, went to the defendant’s place of business, as he testified, for the purpose of “looking it over.” He had had some complaint and this was his reason for going to the premises. He did not take the precaution to secure a search warrant, and the search was conducted without a search warrant. The sheriff and other officers testified that the defendant was found in the barbecue stand playing dominoes with other negro men who were there. That on being called out by the sheriff and told, “We want to look this place over, Clarence,” defendant replied, “That’s all right, there ain’t nothing here, I was making a little barbecue and trying to make a living.” The search was conducted by four officers, two of whom had already gone to the rear at the time the sheriff talked to the defendant. His home, the barbecue stand, and all out-buildings were searched, and one of the deputies found a number of bottles of whisky under the floor of the toilet. The exact amount of liquor found was not revealed by the record. The proof showed that two other negro men were living with the defendant on the premises.

The defendant denied any knowledge of the liquor and testified that the toilet where the liquor was found was open to the public. The officers further testified that the reputation of defendant’s place was bad; that they had had numerous complaints. No witness was produced that had ever bought any liquor or had seen any liquor sold upon the premises.

In this case the officer knew that he intended to search defendant’s place. He should have known, and probably did, that the law required that he have a search warrant before searching the premises. Certainly he knew that the statutes of this state specifically provide the necessity of having a search warrant, and knew of the opinions of this court construing the same. The home of the defendant, although it be an humble one, is entitled to the protection afforded by the statute, and before the premises were searched the officer should have procured a search warrant for the purpose of searching the same. It is a very poor excuse to say that defendant gave his permission for the search. He was there confronted by the officer who told him he was there to “look his place over.” There was nothing for him to do but say it was all right. If he had said “No,” his place would have, no doubt, been searched any way. In fact, the testimony reveals that two of the officers had gone to the back, and were in the act of searching the premises before the sheriff had talked to the defendant. This court has often held that permission to search under the facts as revealed by the evidence in this case, was not sufficient for an officer to search without the procuring of a search warrant. There have been some cases to the contrary, but we are of the opinion that under the facts of this case, there was not a voluntary consent on the part of the defendant. Jones v. State, 38 Okla. Cr. 251, 260 P. 89; Mosier v. State, 59 Okla. Cr. 106, 56 P. 2d 908; Clardy v. State, 64 Okla. Cr. 463, 82 P. 2d 239.

Not only was a search conducted without a search warrant, but the evidence in the case is very unsatisfactory. There is nothing to show defendant’s connection with the liquor, except that it was found under the floor of the toilet which was some distance from defendant’s place of business. Other parties resided at defendant’s place. There was no proof that defendant had ever been convicted of a violation of the prohibition laws. No proof of a sale at his place of business at any time and the evidence was offered of his good character and reputation, and that in addition to running the barbecue stand that he was a carpenter, and worked when he could secure the same. The record failed to show the amount of liquor that was seized, and it occurs to us that it did not reach that dignity which entitled it to overcome the presumption of innocence to which the defendant was entitled under the law.

The court instructed the jury as follows:

“You are instructed that if you find the defendant guilty, you may fix and assess his punishment at a fine of not less than $50 nor more than $500, and by imprisonment in the county jail for not less than 30 days, nor more than six months.
“In this case the defendant has requested that if you agree upon the guilt of the defendant, you must fix and assess the punishment in your verdict.
“Exception taken as to form and granted, this 4th day of October, 1937. (Signed) Ralph B. Simcoe, County Judge.”

It is contended that the clause:

“In this case the defendant has requested that if you agree upon the guilt of the defendant, you must fix and assess the punishment in your verdict,”

was error for the reason that it left the inference with the jury that defendant expected the jury to find him guilty.

Section 3107, Okla. Stats. 1931, 22 Okla. St. Ann. § 926, provides as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Under the above statute it is the duty of the court when requested by defendant to require the jury to assess the punishment. The case of Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140, says:

“Where upon the request of the defendant the court instructs the jury that, in the event they find a verdict of guilty, they may assess and declare the punishment in their verdict, it is the duty of the court to require the jury, if they find a verdict of guilty and fail to agree upon the punishment, to so say by. their verdict; and, if the jury render a verdict not in form, the court should with proper instructions direct them to reconsider it.”

We have examined the original record in this case and it reveals that defendant requested the court to instruct the jury to assess the punishment in the event they returned a verdict of guilty. The court did this in the instructions, but also added that in the event they could not agree upon the punishment to so state in their verdict and the court would assess the punishment. The court, however, did not instruct the jury that the defendant had requested this instruction, as in the case at bar. We have examined a number of authorities upon this proposition, and from reading them are of the opinion that in all instructions given by the court there should be no designation that any part of them are given at the request of the state or the defendant. This error alone might not be sufficient for a reversal of this case, but the instructions should embrace the law applicable to the particular facts in the case. For the purpose of reserving exceptions, the record should indicate what instructions were requested by the state or defendant, but it is certainly the best practice for the court not to give any intimation to the jury that any particular instruction was given either at the request of the state or the defendant. 16 Corpus Juris 1069; People v. Bundy, 168 Cal. 777, 145 P. 537; People v. Fisher, 16 Cal. App. 271, 116 P. 688; State v. Marren, 17 Idaho 766, 107 P. 993; Aneals v. People, 134 Ill. 401, 25 N. E. 1022; Hamilton v. State, 129 Ga. 747, 59 S. E. 803; Burnett v. State, 46 Tex. Cr. 116, 79 S. W. 550.

For the reasons above stated the judgment of the county court of Payne county is reversed.

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


author: DOYLE, P. J.

text:
    DEWEY STOKES v. STATE.
    No. A-9380.
    Jan. 13, 1939.
    (86 P. 2d 642.)

      H. M. Vance, of Tahlequah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction for unlawfully transporting intoxicating liquor and sentence in accordance with the verdict of the jury to confinement in the county jail for 30 days and to pay a fine of $50 and the costs.

The errors assigned and argued in the brief are that the court erred in overruling the defendant’s motion to suppress the evidence, and that the verdict is contrary to the law and the evidence.

The state relied for this conviction upon the testimony of three witnesses, G. C. Bishop, sheriff of Cherokee county, Billie Ballew, undersheriff, and Frank Goodacre.

Sheriff Bishop testified that on November 29, 1936, having received information that the defendant had a load of liquor, four or five miles northeast of Tahlequah, he with Undersheriff Ballew drove to that neighborhood and parked the car at the old mill near the home of Frank Goodacre; Jim Brown, who was with them, left the car, and in about 15 minutes Brown came running back and the defendant was following him, cursing and carrying a pistol in his hand. When they reached the car he stopped the defendant and took his pistol from him. He asked the defendant how much whisky he had. The defendant said that he was a poor boy and trying to get by; that he was a deputy sheriff and demanded the return of his gun. He produced a written instrument, on the head of which was the name of an Arkansas wholesale liquor house, and that the defendant was liquor hauler.

The officers took the defendant back to the Goodacre place and there found a case of whisky near the defendant’s car, it was bottled in bond liquor, the case of whisky in the yard was about 20 steps from the house.

Billie Ballew testified that he was with the sheriff when the defendant came by chasing Jim Brown, cursing and carrying a pistol in his hand. When the defendant came up they stopped him and took his gun from him. He said he had a right to carry a gun, and he showed them a letter. The letterhead was that of a wholesale liquor house in Arkansas. That he returned the letter to the defendant, saying it was no good over here.

The defendant stated to Sheriff Bishop that he was a poor boy and wanted to know if there was some way to get out of this; that he loaded the case of whisky that was near the defendant’s car into their car and went into the house and found four more cases, which he carried out and loaded in their car; that they arrested the defendant; that when he loaded the car the defendant said that some one had stolen a case, that he had six cases; that the defendant’s car had an Arkansas tag.

Frank Goodacre testified that he lives five miles north of Tahlequah, on No. 10 Highway, near the old saw-mill site; that when he returned home that evening he saw the defendant’s car parked down by the front gate, and they were loading what he took to be whisky, that Dewey Stokes did not live at his place and did not have a room rented there; that he never authorized Dewey Stokes to bring the whisky there.

At the close of the evidence for the state, the defendant interposed a demurrer to the same and moved the court to instruct the jury to return a verdict of not guilty, which motion was overruled and exception allowed.

As a witness in his own behalf, Dewey Stokes testified that he formerly lived in Cherokee county, but was raised over in Arkansas and lived back and forth; that he was a deputy sheriff of Cherokee county and had a deputy sheriff’s commission in Arkansas; that he was on his way back to Arkansas after attending a chicken fight at Sallisaw, and stopped at Frank Goodacre’s that evening; that Mrs. Goodacre invited him to have supper there; that he was driving his own car, but did not take any liquor there, that the liquor the officers found was not his liquor.

On cross-examination he stated that he had a pistol with him, and that he chased Jim Brown with the pistol; that he had family trouble with Jim Brown, but never did have any trouble with Brown over liquor; that he saw him standing there by the road, and thought he would just chase him off down the road with the pistol. He denied that he stated to officer Ballew that he brought the liquor to the Goodacre place, and that he did not want them to prosecute Goodacre, because it was not Goodacre’s liquor, and that he brought the liquor there.

The contention that the evidence was procured by an unreasonable search and seizure and in violation of the defendant’s constitutional rights is wholly without merit.

It is the well-settled doctrine in this state that the right to immunity from an unlawful search and seizure and its consequences is a personal right, extending to the property, person and effects of the accused only. The defendant has no right to complain of an illegal search and seizure on the premises of another, even though the evidence to be used against him be there obtained. Phelps v. State, 33 Okla. Cr. 380, 244 P. 452; Hardy v. State, 35 Okla. Cr. 124, 248 P. 874; Klaber v. State, 35 Okla. Cr. 238, 250 P. 142.

In Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052, it is said:

“The right to complain of an illegal search and seizure is personal, and where a defendant is charged with transporting whisky found in the possession of a codefend-ant and denies knowledge, ownership, or possession of the whisky, he cannot complain of an illegal search of his codefendant.”

It is also contended that the evidence is not sufficient to support the verdict.

An examination of the record convinces us that there was sufficient evidence to warrant the submission of the case to the jury.

No other reason for a reversal of the judgment being urged and no substantial error appearing in the record, the judgment of the lower court is affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    BON LEACH v. STATE.
    No. A-9421.
    Jan. 27, 1939.
    (86 P. 2d 1013.)

      Brown Moore and Guy Horton, both of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The defendant, Bon Leach, was by information jointly charged with Bill Mahoney; was tried separately, convicted of the crime of furnishing liquor to a minor, and sentenced to pay a fine of $50 and be imprisoned in the state penitentiary for a term of one year, and appeals.

The charge against the defendant, Bon Leach, is that the said Bon Leach and Bill Mahoney, then and there being, did then and there willfully, wrongfully and feloni-ously, sell, barter, give and otherwise furnish intoxicating liquor to Katherine Bateson, a minor, of the age of 15 years. Before the case was called for trial the defendant filed a general demurrer to the information, stating that the information wholly failed to state a cause of action against either of the defendants; which demurrer was overruled and exceptions saved.

The first assignment of the defendant is that the court erred in overruling the motion of the plaintiff in error for a new trial. This motion for a new trial embraces all the questions raised by the other assignments, and they will be considered together.

The defendant urges that the information is too vague, indefinite and uncertain to charge the defendant with any crime. The information says the defendant did willfully, wrongfully and feloniously, sell, barter, give and otherwise furnish intoxicating liquor, to wit: two pints of whisky to Katherine Bateson, a minor. In this information the defendant is charged with three offenses, that is, “sell, barter, and give,” and the other part of the charge, “and otherwise furnish,” is not found in the statute prohibiting the selling, bartering, or giving intoxicating liquor to a minor.

That portion of section 2622, O. S. 1931, 37 Okla. St. Ann. § 5, material to the question raised in this case, is as follows:

“It shall be unlawful for any person to barter, sell or give to any minor, person of unsound mind, or habitual drunkard, any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor.”

The only time the words, “otherwise furnish” any liquors, appear in our state laws is in what is known as the Beer Act, which makes a violation of the act a misdemeanor and not a felony. Session Laws of 1933, chapter 153, p. 338, § 2, 37 Okla. St. Ann. § 1.

The record before this court shows the defendant was tried and the jury returned a verdict of guilty of the crime of furnishing liquor to a minor, and fixing his punishment at imprisonment in the state penitentiary for a term of one year and a fine of $50. It is insisted by the defendant that the court erred in receiving this verdict and permitting it to be filed, as there is no statute making it a crime to furnish intoxicating liquor to a minor.

The enforcement of the prohibition law is to be commended, yet a conviction in order to be sustained must be based on an indictment or information charging the defendant with a crime known to Oklahoma laws.

The information in this case charges the defendant with three separate offenses, and then alleges he otherwise furnished the same. The information is bad for duplicity and charges more than one crime in one count. The court erred in overruling the defendant’s demurrer to the information, and his motion for a directed verdict. For the reasons herein stated, the judgment of the trial court is reversed, and the case remanded, with directions to proceed further in accordance with this opinion.

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


text:
    ZELMA THRASH v. STATE.
    No. A-9258.
    Jan. 27, 1939.
    (86 P. 2d 1012.)

      Wise & Ivester, of Sayre, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Zelma Thrash, the defendant in the trial court, was by information charged with the possession of certain spirituous liquors, to wit: 24 pints of alcohol; 5 half pints of alcohol; 4 pints of gin, and 24 pints of whisky, with intent to barter, sell, and otherwise furnish to others; was convicted and sentenced to pay a fine of $100, and 30 days in jail. From said judgment and sentence she appeals.

When the case was called for trial, the defendant filed a motion to suppress the evidence on the ground that it was an unlawful search and seizure; that the affidavit for the search warrant and the search warrant were insufficient. The complaint for the search warrant and the search warrant have been carefully examined and while we find they are not models, the allegations in the complaint are sufficient to warrant the justice of the peace in issuing the search warrant. The description of the property in the complaint and search warrant are the same. Although there is some indication in the record the description was not furnished by the party making the affidavit.

In the hearing before the court a very peculiar situation developed. It seems the officer who made the affidavit for the search warrant and secured the search warrant, went to the different ministers in the town, and friends, and invited them to go down to the house when the search was made, and after the search was made and the whisky found, the ministers, whose names are given in the record, were invited in the defendant’s house to see what the officers had found.

It is further disclosed by the record that the constable making the affidavit for the search warrant had been indicted in the federal court, and that the defendant in this case was a witness against him. Whether that fact is the cause of the constable making the affidavit for the search warrant, and going to the defendant’s home and searching the same, and calling in the ministers, is not disclosed by the record, but by inference it appears the fact that the defendant was a witness against the officers making the affidavit for the search warrant had something to do with his actions in the case.

The motion to suppress was properly overruled. It is not deemed necessary to set out the complaint for the search warrant, or the search warrant, or the testimony in support of the same. Suffice it to say that the complaint for the search warrant was sufficient to authorize the officer to issue the same, and the court did not err in overruling the motion to suppress.

The record shows the officer searched the defendant’s home and found 24 pints of alcohol; 5 half pints of alcohol; 4 pints of gin, and 24 pints of whisky. It is evident from the quantity found in the defendant’s possession that she was intending to sell, barter, furnish or give away to others. The defendant did not take the stand and testify.

It is further urged by the defendant that the court committed error in its instructions to the jury. The brief of the defendant has been carefully read and the authorities cited studied, and we find, considered as a whole, the instructions correctly advised the jury as to the law applicable to the facts, and that the court did not err in the instructions complained of.

The defendant was accorded a fair and impartial trial. No errors appear in the record warranting this court in reversing the case. The judgment is affirmed.

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


text:
    BEN R. WILLIAMS v. STATE.
    No. A-9463.
    Jan. 27, 1939.
    (86 P. 2d 1015.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty, Gen., Sam H. Lattimore, Asst. Atty. Gen., and Roy Holbird, Co. Atty., of Enid, for the State.
   BAREFOOT, J.

The defendant, Ben R. Williams, was charged in Garfield county with statutory rape, was tried, convicted and sentenced to serve 30 years in the penitentiary, and has appealed.

Among the errors urged for a reversal of this case are:

(1) That the court erred in permitting evidence of a purported confession of defendant made to certain officers while he was in jail awaiting trial.

(2) That the court erred in permitting certain evidence which it was claimed was a privileged communication.

(3)That the evidence offered by the state was insufficient to support the verdict.

(4) That the court erred in failing to instruct the jury upon questions which were material to the issues involved.

The evidence in this case revealed that defendant was arrested on the 4th day of August, 1937. He was immediately placed in jail. On the 5th day of August, 1937, the chief of police of the city of Enid, went to the county jail for the purpose of having a conversation with defendant, and took with him one of his police officers, so that he might listen to the conversation. The evident purpose of this visit was to have defendant speak of the circumstances surrounding the crime with which he was charged, in the presence of the chief of police and his subordinate officer. When this evidence was offered in the trial of the case the court excused the jury, and after hearing the witnesses, overruled the motion of defendant, and then permitted the witnesses to relate the conversation to the jury.

The chief of police testified:

“Q. I believe you stated in your preliminary examination by the county attorney that the conversation you had with the defendant, Ben Williams, took place about August 5, 1937, in the county jail? A. Yes, sir. Q. Was that pertaining to the case now pending against him? A. Yes, sir. Q. At that time did you inform him that any statement he made might be used against him as evidence, that you might testify as a witness in the case? A. It was just a casual conversation. Q. You didn’t inform him of that, did you? A. No, sir. Q. Was there some conversation about his pleading guilty to the charge filed against him and receiving a sentence of two years ? A. Yes, sir. Q. Was that mentioned? A. Yes, sir. Q. So the things he said to you were after you had mentioned to him that a two-year sentence might be arranged ? A. No, sir, I don’t think so. Q. When was it? A. I questioned him with relation to the girl and he admitted that he had a time or two. Q. What did he say? A. I asked him if he had had relations with Dorthy Lewis, and he said he had a time or two, but it wasn’t rape, and I informed him of the seriousness of it, that 15 years was the least he could get and he informed me that it wasn’t rape in the first degree because she was willing, and that there had been other boys with her. Q. Can you give his exact words? A. That is, about his exact words. Q. Then you told him you would try to get him two years? A. My understanding with him was that it was two years, for second degree rape, if she was willing. * * * Q. But the degree of rape was discussed there between you and he? A. Yes, sir. Q. You have been apprised of the statutory penalties? A. Yes, sir. Q. Who had told you? A. The county attorney. * * * Q. Now, Chief Hess, would you say when that conversation was had, and the same conversation, it was stated that the reason which he offered to plead guilty was that he would get two years? A. Let’s get that again. Q. He never did offer to plead guilty to anything with a penalty of more than two years, did he? A. No, sir.”

The police officer, Earl Moore, who accompanied the chief, testified to the conversation before the court and jury as had the chief, and also testified as follows:

“Q. Who asked you to go there? A. The chief. Q. He asked you to go and listen to the conversation with Ben Williams, did he? A. Yes, sir. Q. And you did? A. Yes, sir. Q. Do you know if Ben Williams had been told, or informed of the nature of the charge against him at that time? A. Yes, sir, it was mentioned to him at that time. Q. You don’t know whether the warrant had been read to him or he had been furnished with a copy of it? A. I couldn’t say. Q. Who mentioned the nature of the charge? A. The chief. Q. What was said? A. He said he was charged with an offense of illicit conduct. Q. That is what he said it was? A. As near as I remember. Q. Did he say anything about the punishment? A. No, sir. Q. Nothing said about the punishment? A. No, sir. Q. Did he tell Ben Williams that any statements he might make at that time would be used against him in the trial of the case, that he would take the stand and testify against him? A. Yes, sir. Q. You heard him tell him that? A. Yes, sir. Q. Is that the words he used? A. I don’t know whether that is the exact words or not. Q. Did he tell him he wouldn’t have to make any statements if he didn’t want to? A. Yes, sir. Q. And that if he made a statement it could be used against him in the trial of the case? A. Yes, sir. Q. You heard him say that? A. Yes, sir. Q. Did you hear him- say anything about if he would plead guilty what penalty he would get? A. No, sir. Q. Didn’t he tell him if he would plead guilty he would get two years? A. No, sir. * * * Q. Did he tell you he wanted you to talk to him? A. No, sir. Q. Just to listen in? A. Yes, sir. * * * Q. Did Chief Hess tell you he was going to have a conversation with Ben Williams? A. Yes, sir. Q. And asked you to go along and listen in? A. Yes, sir. * * * Q. What did he say? A. He said it would be used against him. Q. Did he tell him he would testify to what he said ? A. Yes, sir. Q. Did he tell him he didn’t have to talk unless he wanted to? A. Yes, sir. Q. He told him that? A. Yes, sir. * * * Q. Was there any conversation about the punishment he should receive if he plead guilty? A. No, sir. * * * Q. Did you hear a conversation there in which Ben said that he had not done anything, but to save the girl’s name he would take two years to keep the girl out of court, did you hear any conversation about that? A. I heard him say something about that he would take two years. Q. To keep the girl out of court? A. Yes, sir. Q. Did he say that was his wife’s sister? A. Yes, sir. Q. In that conversation? A. Yes, sir. Q. That is all you had? A. I didn’t have any. Q. That is all the one you were present at? A. Yes, sir. Q, You forgot that while ago, did you? A. He said he would take two years if he could. Q. To save the disgrace on the family, wasn’t that right ? A. There was something mentioned about the disgrace in the family.”

It will be noted that there is a direct conflict in the evidence of the chief of police and Officer Earl Moore. The chief testified that he at no time warned the defendant that the statements which he made might be used against him, and Officer Earl Moore testified positively that he was warned by the chief. Yet both of these witnesses were present and heard the same conversation. The chief of police also testified as to the conversation with reference to defendant expressing a willingness to plead guilty and take a two year sentence. Officer Moore testified that there was no such conversation, but finally admitted on cross-examination that he had heard the two years mentioned.

The question of the admissibility of confessions or statements made, by a defendant while under arrest, and where inducements were made to him for the purpose of securing a statement has been before this court many times. In the case of Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, this court speaking through Judge Doyle, says [page 1070]:

“A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it. Wilson v. State, 17 Okla. Cr. 47, 183 P. 613.
“Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person. It is elementary law that such confessions, in order to be admissible, must be entirely free and voluntary. The rule is well established that confessions induced by a promise of benefit or a threat of harm, made to the defendant by a prosecuting attorney or an officer having him in custody, or by anyone having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383.
* * *
“Bishop says:
“ ‘The doctrine, in its essence and divested of its technicalities, is that a defendant’s confession is admissible in evidence against him if made freely and without the hope of benefit to his cause; otherwise it is rejected, since its purpose may have been to secure such benefit rather than to disclose the truth.’ Bish. New Cr. Proc. par. 1217.
“As Mr. Wharton has well said:
“ ‘The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from the fear of the threat, or hope of profit from the promise.’ Wharton, Cr. Ev. § 658.”

The above principles have been followed by this court in many decisions and constitute the general rule as announced by practically all of the states. Kearns v. State, 14 Okla. Cr. 142, 168 P. 242; Taylor v. State, 27 Okla. Cr. 165, 225 P. 988; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383; Bram v. United States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568.

In reading the cases it will be readily noted that there is an apparent conflict in some of the decisions, but this is generally caused by the actual facts in each particular case. The fundamental principles.are generally recognized by all the courts in all the decisions. Some of these fundamental principles are as announced in the above case. When the confession of a defendant is freely and voluntarily made, they are competent as evidence against him. Where they are not freely and voluntarily made it is error to admit them. Confessions or statements procured or induced by a promise of benefit or threat of harm, made a defendant by a prosecuting attorney, or an officer having him in custody, or by one having authority over him, or made by a private person in the presence of or acquiescence of one in authority will be deemed involuntary and inadmissible. By this it is not meant to be said that a defendant may not make a voluntary statement even to an officer who had him in charge, but it is certainly the best practice that he be warned that any statement which he makes may be used against him, and that there should not be an inducement held out to him that he will be benefited by the making of the statement or confession.

Applying the general principles, as announced above, to the instant case, one cannot but be convinced that the statement made by the defendant in this case was made as a result of an honest belief on his part that he would be charged with a crime, which would permit him to receive a penalty of two years in the penitentiary. The officer to whom he made the statement says that this was mentioned, and further testifies that he told defendant he had conferred with the county attorney, and while in answer to questions by the court, the chief of police recognized that he did not have the power and authority to promise the defendant he would receive a sentence of two years, yet the court seemed to recognize that from the evidence, the defendant had been led to believe that this would be the sentence, for the court at the time the chief of police was testifying, said:

“The Court: You realize that you had no right to tell him what sentence he would get. A. That is what I told him. The Court: I asked you that so you will know, and advise your officers that the sentence and judgment is up to the court and the officers have no right to make them any promises as to what will be done.”

The defendant was first charged by information in this case with rape in the second degree. While he was being held in jail on this charge the county attorney made a motion to dismiss this charge, which was sustained by the court. A complaint charging him with rape in the first degree was filed in the justice court. He was then tried by information filed in the district court charging him with rape in the first degree, and the jury assessed his punishment at confinement in the penitentiary for a period of 30 years.

Counsel for defendant contends that the county attorney did not have the right to dismiss the charge, and file a new charge except upon order of the court, and that, therefore, the court did not have jurisdiction in this case. We are of the opinion that the county attorney had the right, under the direction of the court, to dismiss a case and file a new charge if he saw fit to do so. This did not defeat the jurisdiction of the district court in this case.

It is next urged that the court erred in permitting Dr. R. H. Wigner and his wife to testify to certain conversations had with defendant, for the reason that they were confidential and should not, therefore, have been permitted to go to the jury. The evidence revealed that Dr. Wigner was a regular practicing physician in the city of Enid. His wife attended the reception room of her husband, who had his office at his residence, and was his assistant in the office. The defendant, during the early part of August, 1937, took the prosecutrix to the home of Dr. Wigner for the ostensible purpose of having her examined to determine whether or not she was pregnant. The doctor was busy with an operation at the time and asked defendant to return, which he did the same day. Both the doctor and his wife, over the objection of defendant, were permitted to give in detail the conversation between the defendant and Dr. Wigner.

It is urged by the state that this testimony was admissible for the reason that defendant was not the regular patient of Dr. Wigner, was not consulting him as such, and any statement made by him to Dr. Wigner would not come within the rule prohibiting testimony of a physician or surgeon concerning any communication made to him by his patient, with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient. And for the further reason that Mrs. Wigner was not a physician, and statements made to her, or in her presence, would not be privileged, and within the rule prohibiting proof thereof.

Section 272, Okla. Stats. 1931, 12 Okla. St. Ann. § 385, provides:

“The following persons shall be incompetent to testify: ❖ ❖ *
“6. A physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient: Provided, That if a person offer himself as a witness, that is to be deemed a consent to the examination; also, if an attorney, clergyman or priest, physician or surgeon on the same subject, within the meaning of the last three subdivisions of this section.”

It will be noted from this statute that a physician or surgeon is prohibited from testifying to any matter concerning any communication made to him by his patient, with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient, and under the terms of this statute the argument made by the state does not appeal to us. The defendant had taken the prosecutrix to the office of Dr. Wigner for the purpose of having her examined. His office was at his residence and his wife was his assistant. It was for this reason she was permitted to hear the conversation between the defendant and the doctor.

Both of these parties testified, not only to the examination of prosecutrix, but to conversations of defendant and the doctor. These conversations were with reference to whether or not the prosecutrix was pregnant, and the inquiry by defendant if the doctor knew of any medicine that would relieve her if she was in that condition. These statements could have, and evidently did have, great weight with the jury in the determination of their verdict. It was the contention of the defendant in his testimony that the prosecutrix had told him that she had been playing around with neighbor boys, and it was for this purpose that he consulted a doctor before she was to enter school. It occurs to us that to permit this conversation under these circumstances is in direct conflict with the statute. The argument that the relation of doctor and patient did not exist is untenable. The defendant, although he may not have been a regular patient himself, went to the doctor for the purpose of obtaining professional advice, and certainly any communication had between him and the doctor should have been a privileged communication under the statute, and to say that the wife can testify because the relation of physician and patient did not exist between, them, is also untenable. She was present because she was the assistant of her husband, and was acting in this capacity at the time the conversation was had. It is often necessary for those who assist the doctor as a nurse or attendant to be present at conversations between the patient and doctor, and little good would be subserved, if the lips of the doctor could be sealed by statute as to conversations, but the nurse or attendant might testify to all that was said and everything that was done. The purpose of the law was to protect the right of privacy, and while its scope should not be unduly extended, its very intention might be completely thwarted by the admission of this character. Homnyack v. Prudential Insurance Co., 194 N. Y. 456, 87 N. E. 769; Culver v. Union Pacific Ry. Co., 112 Neb. 441, 199 N. W. 794; Howe v. State, 34 Okla. Cr. 33, 244 P. 826.

The evidence in this case revealed that defendant was charged with the crime of statutory rape upon the prosecu-trix, Dorthy Lewis, a female under the age of 14 years, she being 12 years of age. She was the sister of defendant’s wife. She was one of 10 children, and her father was in poor circumstances as to worldly goods. Defendant was engaged in the sale of oleomargarine in the city of Enid. He made deliveries each week to residences in different parts of the city. He employed prosecutrix to assist him in making deliveries, and to keep his books, which consisted of tabulating the deliveries, and putting in a book the amount each person desired the next week. She received as compensation $1.50 per week. Her employment began in June, 1937, and extended to August, 1937. It was during this time it was claimed defendant had improper relations with her upon two different occasions, and while they were making deliveries of oleomargarine in the city of Enid. Her testimony is vague and uncertain. She testifies that defendant, on at least three occasions after they had made the deliveries, drove in the automobile to the edge of the city in the daytime and felt of her private parts, and on two different occasions, as she expressed it, “he put it in.” One of these times being by the Rock Island, and once at Heliums Dam.

The county attorney was required by the court to elect upon which of the charges he stood, and he elected to stand upon the charge at Heliums Dam. Her testimony with reference to this occasion was contradictory, and was as follows:

“Q. What would take place there? Between you and Mr. Williams ? Mr. Kirkendall: Don’t lead her, let her tell. A. We would stop the car. Q. You were in the car there, (then what would be done? A. I would get off and then we would start back to town. Q. Dorthy, before you would get off, and while you were on Mr. Williams’ lap, what would he be doing with you? A. Feeling of me. Q. What part of you would he be feeling of? You said he would be feeling of it. What did you say you would do while you were on his lap? A. He would touch it. Q. Do you mean he would touch your female parts, you know what that is? A. Yes, ma-am. Q. Is the place down in front of you here? A. Yes, sir. Q. How many different occasions was there that he drove out and he just ‘felt of it’? A. About three times. Q. Where were those places those times? A. Two times out there by the Rock Island and two times out there where the big mills are. Q. He played with you how many times you said awhile ago? A. Three times. Q. The last time you went out here by the mill, you say, what did he do to you? A. He put it in.' Q. Do you know what it was he put in, some part of him, was it, into some part of you? The Court: Let her tell it. Q. And that was out here in the vicinity of the mill, out this way? (Pointing) A. Yes, sir. Q. One time you said he just ‘played with it’? A. Yes, sir. Q. And the other time he put it in? A. Yes, sir. Q. That is right, is it? A. Yes, sir. Q. You could feel it, could you? A. Yes, sir. Q. Did you ever drive anywhere else, any place, after that time, that was four times? A. Not ’till up here by Heliums. Q. Dorthy, will you explain to me and these gentlemen how you go to Heliums? A. Go out on the pavement and go where the turn is. Q. How do you know where the turn is? A. Out by the stands. Q. Out on the highway, how do you know where to turn? A. A turn there that goes like that. (Indi-eating) Q. That goes toward Heliums, does it? A. Yes, sir. Q. Is there a marker that tells you out there? A. When you go to Heliums there is a sign there. Q. You went out that way, did you, and did you go into the Hel-iums’ gate there? A. No, sir. Q. Which way did you go then? A. We went to where that road is and turned and went north. Q. How far did you go north? A. I don’t know. Q. You didn’t measure the miles, did you pass anything, did you pass the two or three roads down that way? A. We went to the first or second road and turned east. Q. At that time, Dorthy, what did you do out there, was the car stopped again? A. Yes, sir. Q. Was there anyone else along besides you and Mr. Williams? A. No, sir. Q. Just the two; what did you do then? A. He just felt of it. Q. He just felt of it? A. Yes, sir. Q. After he felt of it, you stated about three times before he felt of it, and then did something else, this was the last time, what did he do up there? This is up there by Heliums, you told about four times, three times he played with it. A. Out there by Heliums he just touched it. Q. Let me ask you if at that time did you kind of sit across his lap, that time? A. Yes, sir. Mr. Kirkendall: That is objected to as leading. The Court: Let her do the answering. Mr. Holbird: It is important that we be allowed some latitude in examining this witness. The Court: We are giving you some. Q. Do you know what he touched it with out there at Lake Hel-iums, was it his hand, or the private part? Mr. Kirkendall: We object to the suggestion. A. He never touched it. Q. What did he do it with? A. Touched it with his hand. Q. How many times is that in all? A. Five times. Q. The first three times what did he do? The Court: She testified to that. A. He just touched it. Q. Then the next two times what did he do? A. He put it in. Q. The next two times, one time out here by the mill? A. Yes, sir. Q. The last time was where? A. Out there by Heliums. Q. Is that what you meant awhile ago? A. Yes, sir. * * * Q. Now Dorthy, these two times you say, ‘he put it in,’ those were the first times, the first time was here close to Enid? A. Yes, sir. Q. Then you would say that is in Garfield county? A. Yes, sir. Q. And the next time was pretty close to Lake Heliums? A. Yes, sir. * * * Q. Which direction did you go?__ A. North. Q. North from Lake Heliums? A. Yes, sir.-" Q. Did you turn north right at Lake Heliums? A. When we got there we turned north and then we turned east. Q. Do you mean the entrance into the Lake Heliums place? A. No, sir. Q. Where do you mean? A. The road this side of it. Q. You turned at the road this side of it? A. Yes, sir. Q. On which side of it? A. On the east side of it. Q. On the road east of Lake Heliums, you went north? A. Yes, sir. Q. And then back east? A. Yes, sir. Q. Do you know who lives up there? A. No, sir. Q. How far east did you go? A. I don’t know. Q. That would take you right back to the pavement, wouldn’t it? A. Yes, sir. Q. You sat on his lap out there? A. Yes, sir. Q. Then you came back to town? A. Yes, sir. Q. That was in broad daylight, was it? A. About 4 o’clock. Q. You don’t know the day of the month or the day of the week it was? A. No, sir. Q. You didn’t tell your mother or father about this? A. No, sir. Q. Did you tell your sister, Mrs. Williams? A. No, sir. * * * Q. Then you went to Lake Heliums once? A. Yes, sir. Q. That is the time you sat on his lap? A. Yes, sir. Q. Where did you go next? A. Nowhere, we came back home. Q. Did you go out of town with him any more after those three times? A. No, sir, I never went out of town, I just went out here by the tracks. Q. What tracks? A. The Rock Island. Q. You know where the Rock Island Depot is? A. Yes, sir. Q. Is that where you mean? A. Yes, sir. Q. That was in daylight? A. Yes, sir. Q. The tracks go out south. You went down the road there? A. Yes, sir. Q. Some people live down there, didn’t they? A. No, sir. Q. How far did you go? A. There is a house about four or five blocks. Q. That was in daylight too, was it? A. It was about 4:30. Q. That was in June or July, was it not? A. Yes, sir. Q. It wasn’t dark yet at 4 or 4:30, was it? Do you know what time it does get dark? A. About 7. Q. Then you went back home? A. Yes, sir. Q. And you didn’t say anything to your mamma or papa? A. No, sir. Q. Did you sit on his lap down there? A. Yes, sir. Q. Is that all? A. Yes, sir. Q. He didn’t do anything naughty down there? A. No, sir. Mr. Holbird: We object to the form of the question ‘Anything naughty’. The Court: I believe you talked to Mrs. Whitt after she had taken you to the police station, you never had told anyone before that? A. No, sir. Q. She was a police officer and took you to the police station? A. Yes, sir. Q. And you told her all about it down there? A. Yes, sir. Q. Then you wrote these letters to Mr. Holbird that you just read, and you wrote the one to me that you just read? A. Yes, sir. Q. You came down to the courthouse this morning? A. Yes, sir. Q. Where did you go when you came down here? A. To his office. Q. Did he read the letters over to you? A. No, sir. Q. Did you read them? A. No, sir. Q. Did he talk to you about them? A. Yes, sir. Q. You told him you wrote them because they were the truth, did you? A. Yes, sir. Q. Are they the truth? A. Yes, sir. Q. The letters are true, are they, is that right? A. Yes, sir. Mr. Kirkendall: That is all at this time, if the court please.”

The letters referred to are two letters written by the prosecutrix, one to the county attorney, and one to the attorney for defendant, just prior to the trial. These letters were almost identical, and are as follows:

“County Attorney:
“I will write you a few lines. In regards of law suit between I and Uncle Ben Williams as Miss Whitt come out and got me and taken me up to her office and ask me things that I didn’t know what she mint that Uncle Ben Williams always treated me meice. He never done anything naughty to me that I was scart so that I thought I had to say yes everything that she said. And I didn’t know anything else to say or do.
“I didn’t know what they took me to the doctor for.
“Yours Truly,
“ [Signed] Dorothy Lewis.”

On re-direct examination she testified as follows:

“By Mr. Holbird: Q. Dorthy, do you know now why you wrote these letters ? Mr. Kirkendall: That is objected to as incompetent, irrelevant and immaterial, not proper rebuttal. The Court: Overruled. Mr. Kirkendall: Exception. A. Because I didn’t want to come up here. Q. The questions you answered here awhile ago when you told these gentlemen that you didn’t mean that, that is the truth, isn’t it. Mr. Kirkendall: That is objected to as incompetent, irrelevant and immaterial and argumentative, and leading. The Court: Don’t lead the witness. Q. Dorthy, you say in the letter you didn’t know what you went to the doctor for, is that the woman doctor or the other doctor? Mr. Kirkendall: That is objected to as incompetent, irrelevant and immaterial. Q. Dr. Rude is the lady-doctor. Mr. Kirkendall: If the Court please, we ask that counsel quit answering for the witness.. Mr. Conway: This is our witness and we have a right to examine her. Mr. Kirkendall: We object to the remarks of the county attorney. Q. Now, Dorthy, I will ask you if you did go with Mr. Williams to a man by the name of Dr. Wigner? A. Yes, sir. Q. You saw his wife there, too, did you? A. Yes, sir. Q. Do you remember then, did you, also, go to a lady? A. Yes, sir. Q. The lady, where was her office? A. Up to the Broadway Tower. Q. Mrs. Whitt went with you up there? A. Yes, sir. Mr. Holbird: I believe that is all. Mr. Kirkendall: That is all, but I want to reserve the right to recall her for further cross-examination. The Court: Very well.”

Without the testimony of the officers heretofore referred to, and the testimony of Dr. Wigner and his wife, there was no corroboration of prosecutrix’ testimony except the testimony of Mrs. W. S. Whitt, who was at the time police matron of the city of Enid. She had made the preliminary examination which resulted in the arrest of defendant. She had conversed with the physician. She testified that while at the county jail after defendant’s arrest she had a conversation with defendant in the presence of his wife. She did not warn defendant in any way that whatever he might say could be used against him. Her testimony as to this conversation was as follows:

“A. I went in the jail and he and his wife were sitting in the office of the county jail, Mr. and Mrs. Lewis are friends of mine, and as I approached them Mr. Williams got up, crying, we all cried, and I said ‘Ben, what happened to you, what went wrong?’ and he said, ‘I guess we all go crazy sometimes,’ and I said ‘You are not the first one who has had weak moments, and you won’t be the last one, if you were we would just take you out and shoot you,’ and I sat down between him and his wife and we had a friendly conversation, not all of it pertaining to this case.”

The evidence of Dr. Evelyn Rude, who examined the prosecutrix, Dorthy Lewis, on direct examination, was as follows:

“Q. I will ask you if during the month of August, 1937, you examined this little girl by the name of Dorthy Lewis? A. Yes, sir. Q. Doctor, what was the purpose of your examination? A. To determine the condition of the hymen. Q. To determine the condition of’the hymen? A. Yes, sir. Q. Do you know for what purpose you were to determine that? A. Yes, sir. Q. For what purpose was it, why was that fact sought? A. To see if there had been any penetration. Q. To see if there had been any penetration of a sexual nature? A. Yes, sir. Q. Did you examine Dorthy Lewis’ hymen? A. Yes, sir. Q. Will you explain, very briefly, to these gentlemen what the hymen is, whether a membrane, or what it is? A. The hymen is a small membrane at the entrance of the vagina between the libia minora and the vagina and ordinarily will admit one finger in the opening, the opening is the avenue into the vagina and will ordinarily admit one finger, but that would vary. Q. How close would you say that is to the opening, or to the libia, or outside of the vagina proper? A. It is a half to one inch inside the vagina or below the libia minora. Q. What was the condition of that hymen or the aperture into the hymen? A. It was sufficiently large to admit two fingers without any discomfort to the child. Q. Would you tell the jury about what that would be? A. My fingers are rather small. Ordinarily I allow for about three of my fingers to make what is ordinarily called two fingers by medical physicians or the medical profession. Q. That is ordinarily an examination to determine chastity, is it not, by the fingers? A. Not necessarily. Q. It is one way, is it? A. Yes, sir. Q. You say this hymen was distended until it would contain without pain to the patient two of your fingers or three, did you say? A. Easily two. Q. Would you say two of an ordinary person’s fingers? A. Yes, sir. Q. Without pain to the patient? A. Yes, sir. Q. Let me inquire, Dr. Rude, if the opening, or size of it, was it more than a normal opening? A. Yes, sir, more than normal for a virgin. Q. Let me ask you if that could have been caused by the penetration of a normal male organ? A. Yes, sir. Q. It could have been? A. Yes, sir,”

On cross-examination she testified as follows:

“Q. Dr. Rude, you are a lady, what is your weight? A. About 110 pounds. Q. Your fingers are of the ordinary size for a lady of that size? A. Yes, sir. Q. You say the hymen was stretched? A. Yes, sir. Q. It wasn’t ruptured, was it? A. It had not been recently ruptured, but it was so large it was hard to tell. Q. In the report you made to the police officers, it was stated as just stretched, wasn’t it? A. Yes, sir. Q. You didn’t find a rupture or torn condition of the hymen, did you? A. She didn’t have very much of a hymen — it is sometimes hard to tell whether it has been just stretched or whether torn. Q. You did report that it was just stretched, didn’t you? A. Yes, sir.”

The defendant, as a witness in his own behalf, testified he was 50 years of age; that he had been married 11 years to the sister of prosecutrix; that he and his wife and her parents had agreed that he should employ her sister during vacation time. This for the reason that she needed funds to help support the family. He denied that he at any time had ever had any illicit relation with the prose-cutrix. His testimony was that the work was finished évery afternoon and he was back home prior to 6 o’clock. That the only time he had ever taken her to Heliums Dam was when his wife went along and they were looking for a place to have a picnic for both families. His wife, as a witness, also testified to this same state of facts. He testified that he took her to Dr. Wigner’s office on the 3rd day of August, 1936. He gave as a reason for doing so that she had told him about relations she had with some other boys in the community, and he wanted to have her examined so that she could be ready for school. That she gave the boy’s name as “Clarence,” and that there was a boy in the neighborhood by that name. This conversation with her was brought about by her father teasing her about “Clarence,” and he thought “it was getting out of line a little, and I asked her about Clarence and she admitted to me she had been with him.” She at this time told him about missing her menstruation. He denied telling the chief of police or Mr. Moore that he had sexual intercourse with prosecutrix.

Four or five witnesses were offered by defendant who testified to his good character and reputation.

From what has been stated it will be noted that the evidence in this case is very unsatisfactory and contradictory. Not only the evidence of the prosecuting witness but the other evidence in the case reveals that every effort possible was brought to bear to secure a statement from defendant that would tend to corroborate the evidence of the prosecutrix, which was itself unsatisfactory. An examination of the entire record reveals that almost every objection of the county attorney was sustained and those of the defendant were overruled.

After the state had closed its case defendant asked for permission to recall the father of the prosecutrix for cross-examination. The purpose was to show that the clothing worn by prosecutrix had been washed, and that there was no blood on them and they were in order. The objection of the county attorney for permission to further cross-examine this witness was sustained because the state had closed its case. This, however, was before defendant had made his statement to the jury. This was a matter that was in the sound discretion of the trial court, and we do not hold the same was error, yet we can see no good reason why this request was denied under the circumstances of this case.

We have examined the instructions, and the requested instructions, and while counsel for defendant did not offer a requested instruction, we see no reason why the court should not have instructed the jury with reference to voluntary and involuntary confessions, so that the jury might have distinguished whether or not the statements made by the defendant were voluntary or involuntary. Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L.R.A., N. S., 849; Kearns v. State, 14 Okla. Cr. 142, 168 P. 242; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064. In the last case it is said:

“After a confession has been admitted, the defendant is entitled to have the evidence in regard to the manner in which it was obtained given anew to the jury, not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence; and the jury may disregard it if they are not satisfied that it is voluntary.”

In that case, the court instructed the jury as to voluntary and involuntary confessions, and instructed the jury if they found that the confessions which had been permitted to be introduced were not made freely and voluntarily, they should not be considered by the jury, and that it was the province of the jury to say whether or not the confessions were voluntary.

After carefully reading and considering the whole record in this case, we cannot but come to the conclusion 'that this defendant did not have that fair and impartial trial to which he was entitled under the law. McDonald v. State, 61 Okla. Cr. 287, 67 P. 2d 806; Workman v. State, 62 Okla. Cr. 81, 70 P. 2d 133; Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083. The case might not be reversed on one point, but one cannot read this record and believe that justice has been done by a verdict of 30 years in the penitentiary for this defendant, and for the reasons above stated we are of the opinion that this case should be reversed, and as the record discloses that the defendant is now confined at the state penitentiary at McAlester, the warden of that institution is directed to deliver defendant to the sheriff of Garfield county, and if the county attorney is of the opinion that he has evidence sufficient to convict the defendant in another trial of this cause, that the same be set for trial, otherwise, the defendant should be discharged.

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


text:
    GILBERT SEALY v. STATE.
    No. A-9381.
    Feb. 3, 1939.
    (87 P. 2d 166.)

      Robt. N. Dunn, of Waurika, and Cornelius Hardy, of Tishomingo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Victor Eckler, Co. Atty., of Waurika, and Earl Pruet, Asst. U. S. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant was charged jointly with his son, Emerson Sealy, with the crime of the murder of Norman Dodd, in Jefferson county, Okla.; was tried, convicted, and sentenced to serve a life term in the penitentiary, and has appealed.

The first contention of defendant is that the court erred in permitting Hon. Earl Pruet, Assistant United States District Attorney for the Western District of Oklahoma, and formerly Assistant United States District Attorney for the Eastern District of Oklahoma, to appear as a special prosecutor in this case, the contention being that both of the defendants were full-blood Chickasaw Indians, whose restrictions had not been removed, and the alleged offense was not one by a restricted Indian against a restricted Indian, committed upon an Indian Reservation over which the United States had exclusive jurisdiction, or an offense for the killing of a United States officer; that the defendants were wards of the United States government, and there was no record of any authority of the Attorney General of the United States authorizing the appearance of Hon. Earl Pruet in the case either as a private or public prosecutor.

No evidence was offered in connection with this objection, either by the defendants or by the state. Only statements by the attorney for the defendants and by Mr. Pruet. From these statements it does not appear that Mr. Pruet was appearing in this case in his official capacity but as a private prosecutor, and that he had received permission from the District Attorneys of both the Eastern and Western Districts of Oklahoma to participate in the trial. From the statements made it appears there was nothing in the rules and regulations of the Department of Justice prohibiting the appearance of an Assistant United States District Attorney in the trial of a case in the state court under the circumstances here existing. Furthermore, it appeared during the hearing that Mr. Pruet was informed over the telephone that Hon. W. C. Lewis, United States District Attorney for the Western District of Oklahoma, had received a message from Hon. Joseph B. Keenan, Assistant Attorney General of the United States, informing him there was no departmental rule or regulation prohibiting the appearance of an assistant United States District Attorney where a restricted Indian was charged with murder in a state court, and that Mr. Pruet was authorized to participate in the prosecution of said case. Under the above circumstances, we do not think the court erred in overruling the objection of counsel for the defendant.

The next contention is, “admission of illegal evidence.” This contention is based upon the fact the court permitted to be introduced in evidence a statement of the defendant Emerson Sealy, made on Sunday after the killing on that day, and while the defendant was in jail. This statement was made in writing to the county attorney. It was as follows:

“State of Oklahoma, Jefferson County.

“Before me, the undersigned, a Notary Public within and for the above named County and State, personally appeared Emerson Sealy, who being first duly sworn on his oath deposes and says:
“My name is Emerson Sealy. I am 19 years old. I live with my folks out Northeast of Ryan. About 400 yards from our house is another house where Norman Dodd lives. Last November Dodd accused we kids of bothering his things. I never had been in his place, but my brother, Jim, had. He is about 16 years old. Papa was at home and he told Norman Dodd if he accused us of bothering his things again he would kill him, so yesterday afternoon about sundown or dark, Norman Dodd and Lawrence Hunt came up to our place and wanted to know where the door key was; that somebody had got it and they could not find it. I told him I didn’t know anything about it, and we had some words. He didn’t try to hurt me. He didn’t even threaten me, but it looked like he wanted to. There was no one else at the house but my mother, brother and sister.
“I went back to town last night with my mother to get my dad, but I never said a word to my dad about the trouble. My mother didn’t either. He was drinking mighty heavy last night was the reason we didn’t tell him. I didn’t get him the first time we went after him and brought him home about 2:30. The children were all at home; all of them slept in the house.
“Delmas Green and Laverne White stayed all night with us and we were there when my dad called me and said, ‘Drive the car. I’m going down the road.’ I got in the car and he was in the car with the shotgun. I think he had two extra shells. When we got down to the mailbox of Norman Dodd’s, north of our house, Papa told me to stop the car that he was going to kill a man. I said, ‘Papa, don’t do that,’ and then he called Lawrence Hunt first and then he called Norman Dodd. Norman came out of the house and they both came on out towards the car to a distance of about 100 yards from the house to the mail box, and when they got about 20 feet from the car, Papa told them to stop. He said I want to talk to you sons-of-bitches. He told Lawrence to step out of the way, and Lawrence stepped out of the way. Then my Dad said to Norman Dodd: ‘You remember what I told you last fall.’ I don’t remember whether Dodd said anything or not. Dodd was standing still where my Dad had stopped him and he had a shotgun pulled on him and Dodd didn’t rush or step forward, and when Dad got through saying ‘You remember what I told you last fall.’ Then he said, ‘I’m going to kill you’ and about that time he shot. My Dad got out of the car when the boys got about 30 feet of the car, and that is when he told them to stop and they must have been about 20 feet apart from where my Dad shot him. Then my Dad told Lawrence to stand back.
“After my Dad had killed Dodd he got in the car and said ‘Drive on.’ We drove about a quarter of a mile west and he had me stop, and said, ‘Let’s go back,’ and I told him, ‘No, let’s not, that was wrong,’ and he said, ‘Well, I’ve got to do it,’ so I turned and taken him back.
“When we got almost there the folks all ran back towards the house. Lawrence Hunt was carrying Dodd to the house when my father told me to speed up. We went on. We came on back by our house and he went in with the gun, and then he came back out to the car, and said ‘I’ve got to go to Waurika and give up.’ He had the gun with him.
“I guess it must have been about 4:30 the last drink he had, and I went and hid the whisky, and somebody broke the whisky bottle out by the windmiss later on, but I don’t know who it was.
“My father had killed one man and served 10 years for it, and I knew he was dangerous. We stopped by Don James. He got out of the car and talked to him, and then he got in the car and we drove by West Green’s, and I don’t know what he talked to West about, and then we came on towards Waurika, and we saw Bill Warren, and he talked to Bill about getting some one to go his bond; that he had killed Norman Dodd.'
“It was something like 6:30 this morning when the killing happened. We got to Waurika about 7:30. He didn’t say much to me coming on up. The car was headed northwest when Dad called the boys out. I make this statement of my own free will and no threats or promises have been made for or against me, and the statements contained herein are true, so help me God.
“(Signed) Emerson Sealy.”
“Court: Be admissible against the defendant who made the statement. Mr. Hardy: In addition the defendant, Gilbert Sealy, moves the court to instruct the jury that the statement which he now offers in evidence cannot be used as testimony against the defendant making the statement. Mr. Pruet: Yes, sir, that is the only purpose for which we offer it, against the one making it. By the Court: This statement is not to be considered against the defendant, Gilbert Sealy, but only against Emerson Sealy, the one who made it.”

Again the record reveals that after the statement had been read the court admonished the jury as follows: “By the Court: Now, gentlemen, that is not any evidence and cannot be used in evidence against Gilbert Sealy.”

Further, during the cross-examination of the defendant, Emerson Sealy, the following proceedings occurred:

“Mr. Hardy: The defendant, Gilbert Sealy, asks the court to instruct the jury that all the statements made by Emerson Sealy and the statement introduced of Emerson Sealy cannot be used in evidence against the defendant, Gilbert Sealy. Court: I have told the jury, as clearly as I can, and know how to tell them, that it is not to be used against Gilbert Sealy. Mr. Pruet: I insist at this time, since this witness has taken the stand and given his version of what his father did down there at the time of the killing, about whether he made those statements and what happened down there at the time of the killing is certainly admissible as going to the credibility of this witness. Court: That is true.”

This court in many cases has discussed the question of the admission of voluntary and involuntary statements, and especially with reference to statements made to officers who have parties in their custody and under arrest. In a case decided on January 27, 1939, Ben R. Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015, this question is fully discussed and it is stated therein there is at times seemingly a conflict between the decisions, but this is generally caused by the facts of each individual case. We again state that the mere fact a confession or statement is made to an officer while the accused is under arrest, in or out of prison, or is drawn out by his questions, does not necessarily render the confession involuntary. Taylor v. State, 27 Okla. Cr. 165, 225 P. 988; Mays v. State, 19 Okla. Cr. 102, 103, 197 P. 1064, 1065; Jewell v. State, 41 Okla. Cr. 389, 273 P. 366; Reagan v. People, 49 Colo. 316, 112 P. 785; State v. Blodgett, 50 Ore. 329, 92 P. 820.

In the case at bar the statement was in writing. This appeared in the statement:

“I make this statement of my own free will and no threats or promises have been made for or against me, and the statements contained herein are true, so help me God.”

Several parties were present at the time the statement was made and all testify that it was made voluntarily, and no threat or promise of any kind was made in order to secure the same. It was made with reference to the killing, and actions prior thereto, and is in perfect accord with the witnesses who testified in the case. The perso.n who made the statement was on trial at the time it was admitted in evidence, the court on three different occasions instructed the jury that the statement could not be used against the defendant, Gilbert Sealy. The party making the statement afterwards took the witness stand and repudiated many terms in the statement. It was certainly proper on cross-examination to introduce the statement as affecting the credibility of the witness. We here, however, state that it is the best practice for officers who have parties in charge to fully warn them that any statement made may be used against them. No promises of relief or benefit should be held out. The statement should be wholly voluntary. The evidence in this case was overwhelming and is amply sufficient to justify the jury in convicting the defendant, regardless of the statement of his codefendant.

It is also contended in this connection that the introduction of this statement was in fact permitting one to testify against the defendant, whose name was not endorsed on the information, or whose name had not been served on the defendant two days prior to his trial, as provided by the Constitution of this state. Okla. St. Ann. Const, art. 2, § 20.

The argument above made that the party making this statement was himself on trial, and that there had been no severance demanded, and none granted, fully answers this contention.

The contention that the court erred in refusing to give defendant’s requested instruction No. 3, which was in effect that the jury was not to consider the above statement as against the defendant, Gilbert Sealy, cannot be upheld for the reasons above stated. The court told the jury at several different times the statement could only be considered against the defendant, Emerson Sealy, who made it. People v. Lombard, 131 Cal. App. 525, 21 P. 2d 955; State v. Roupetz, 73 Kan. 663, 85 P. 778; State v. Thomas, 75 S. C. 477, 55 S. E. 893.

It is claimed that objectionable questions were propounded to various witnesses. We have carefully examined the record and find no serious error therein. Some of these questions were clearly competent as affecting the credibility of the witness. It is unnecessary to review all the evidence.

The defendant presented three requested instructions, which were refused by the court, and to which the defendant excepted. The first of these was with reference to the plea of self-defense; the second, to a plea of insanity; and the third, with reference to the instruction to the jury not to consider the statement made by the defendant, Emerson Sealy, as against the defendant, Gilbert Sealy. The last requested instruction has heretofore been discussed. The first and second requested instructions were fully covered by the general instructions given by the court. They covered practically every suggestion made in the requested instructions and fully and fairly gave to the jury the law in this case.

The evidence reveals that defendant shot deceased without cause or provocation. This is revealed by the witness Lawrence Hunt, whom defendant testified had been friendly to him. His evidence was practically the same as the statement made by the defendant, Emerson Sealy. He testified that on Sunday morning, August 30, 1936, the defendant, Gilbert Sealy, and his son, Emerson Sealy, came to his home in an automobile, and that defendant, Gilbert Sealy, said: “Lawrence, you come here, I want to talk to you a minute.” That after talking to the defendant, he went to the home of deceased, Norman Dodd, who lived only a short distance from him and told him: “Gilbert Sealy was up there and wanted to talk to us a minute.” That the deceased put on his shoes and they went toward where the defendant was sitting on the running board of his car; that as they approached the defendant “pulled his gun out from under his leg” and “he raised his left hand toward us and said, ‘You son-of-a-bitch stand right there’.” His testimony as to the actual killing was as follows:

“Q. What did Norman say? A. He said, ‘Gilbert, I didn’t take a gun up to your place and run you kids off, I just asked them for the door keys.’ Q. What did the defendant, Gilbert Sealy, say, if anything, in answer to that? A. Well, he said, T am going to kill you, you son-of-a-bitch and there is two more I am going to get before I give up.’ Q. What did he do then? A. Then he raised his gun up and I said ‘Gilbert, I wouldn’t do that’ and he said, ‘You needn’t worry you son-of-a-bitch.’ Q. What did he do? A. He shot Norman. * * * Q. Any gun on his person when you took him to the house? A. No, sir, wasn’t no gun on him. Q. What kind of a gun did the defendant have? A. A double-barrel shotgun. Q. When this was said, what did the defendant, Gilbert Sealy, do? A. He shot this boy, Norman Dodd. Q. Where did he shoot him? A. Here (indicating on head) above the left eye. Q. How many times did he shoot him? A. One time. Q. After this shot was fired, what did Norman Dodd do? A. Fell backwards, fell right flat on his back. Q. What did Gilbert Sealy do? A. After he shot the boy he throwed his gun over to me and stood there a minute, seemed longer than that to me, he got in the car and told the boy to drive on, he stopped again. Q. Had the boy said anything at that time? A. No, the boy never opened his mouth. Q. Which way did they go? A. They went west. Q. How far? A. They went out of sight over the hill, they did. Q. After Dodd fell and they drove off, did anybody come up to the scene of the shooting? A. Yes, sir. Q. Who? A. Robert Hunt. Q. Where did you meet him? A. I met him by the gate, and after I met him I fell down on my hands and knees. Q. What did you and he do? A. He went back to where the boy was laying, Norman Dodd, the women was up there, I heard the car coming back. Q. Did you look in that direction when you heard the car? A. Yes, sir. Q. What did you see? A. I heard the car coming back. Q. What was Robert doing? A. Up there with his head laying in his lap. Q. Whose head? A. Norman’s. Q. Where did the car go? A. Come up there and stopped. Q. What did the defendant, Gilbert Sealy, do? A. He got out and I heard him say to my brother, first, he waved his hand and got out on the running board, waved his hand to stand back, he told my brother, Robert, to lay him down and stand back, T want to do a good job,’ and my brother told him, ‘You have done a good job, go on.’ Q. Did he stay in the car or get out? A. When I seen him he was standing on the running board. I had my back to him, I had hold of Norman Dodd. Q. He drove off? A. Yes, sir.”

This witness also testified to being with the deceased on Saturday before the killing when he went to the home of the defendant, and asked the wife of the defendant and children about a door key he had lost. He testifies that all the deceased did on this occasion was to ask them where his door key was, and that the defendant, Emerson Sealy, cursed the deceased at this time, and he left.

Delmas Green testified he stayed all night at the home of the defendant Saturday night before the killing on Sunday; that Emerson Sealy told one of his sisters to get the gun, and that the defendant, Gilbert Sealy, told him, “He was going to kill Norman Dodd.” Immediately after making the statement the two defendants left in the car with a gun, and he soon heard a shot fired. This evidence was corroborated by Lorance White, a disinterested witness, who stayed all night at the home of the defendant on Saturday preceding the killing.

Two parties testified that the defendant, after the killing and prior to his going to Waurika to give up, acknowledged killing deceased and stated to them there were two others he wanted to get before he gave up.

Defendant’s defense was that the deceased was attempting to get a gun from his pocket when he walked up and that he shot in self-defense. There was also some testimony that the deceased had attempted to take privileges with a young daughter of the defendant. Evidently the jury in this case did not look with favor upon this defense. After reading the record, one cannot say they were wrong in their conclusion. The evidence amply justified the verdict. The defendant having had a fair and impartial trial, the judgment of the district court of Jefferson county is affirmed.

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


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    MIKE MALADIN v. STATE.
    No. A-9477.
    Feb. 3, 1939.
    (87 P. 2d 164.)
    L. G. Brewer, of Sayre, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The defendant, Mike Maladin, was by information charged with the possession of spirituous, fermented, malt or intoxicating liquor; was convicted and sentenced to pay a fine of $50 and to be imprisoned in the county jail for 60 days, and appeals.

Before the case was called for trial a motion to suppress the evidence obtained by means of the search warrant was filed, claiming it was an illegal seizure. Testimony was taken in support of his motion to suppress the evidence, and after hearing the argument of counsel the court overruled the motion, and defendant reserved an exception.

It is argued by the defendant that the search of the defendant’s place of business, and where he slept, was an unlawful search and seizure for the reason that the affidavit for the search warrant did not comply with section 30, art. 2, of our Constitution, Okla. St. Ann., in properly describing the place to be searched and the things to be seized. The affidavit for the search warrant is not a model, and it is difficult to tell just what the description of the property to be searched is, or who occupied the premises to be searched.

The affidavit says that the property to be searched is occupied by Mike Maladin or parties unknown to affiant. A number of blanks are left in the affidavit, but the description is sufficient to show the metes and bounds where the property is alleged to be located, and that it is the private residence of Mike Maladin, or parties unknown to affiant.

The defendant urges the affidavit is bad because the statement is disjunctive, alleging that either the defendant or some one unknown to him occupied the premises, and cites, in support of his contention, Slover v. Territory, 5 Okla. 506, 49 P. 1009. The affidavit for the search warrant is one of those stock forms that are often filed in the courts of our state charging all of the crimes known to the prohibition laws of our state. In the sixth paragraph of the affidavit, the officer admits, if his statement is true, that he had not been doing his duty and enforcing the laws as he was sworn to enforce them. The statement being:

“Affiant further states he has observed this place for the past two weeks and has seen cars going in and coming out, during all hours of the day and night, and some of the occupants was intoxicated, and some of them appeared to have bottles in their pockets.”

If the statement made by Ed West to secure the search warrant is true, as stated in the sixth paragraph, then it is admitted by West that he had not been doing his duty. No officer who is telling the truth and admits he has been observing a place for two weeks, and saw what he states in the affidavit he claims to have seen, should decline to make an arrest or to secure the proper warrant to investigate the place, and wait for at least two weeks before getting a search warrant.

Considering the testimony in this case, which is undisputed, the defendant was running a filling station and serving lunches, and had a dance floor where parties met; bought gasoline and oils, and ate and danced. This paragraph could be absolutely true and not be a violation of our law, and there can be no reason for incorporating this in the affidavit for the purpose of trying to bolster up the affidavit to secure a search warrant. The record discloses that the affidavit for the search warrant in several places contained the same language as is in paragraph 6 in this case.

This paragraph does not allege these parties when they drove up to the defendant’s place of business were sober and that they got out of their car and went in, and came out later intoxicated, nor was the allegation in that paragraph that when the parties left his place of business some had what appeared to be bottles in their pockets. That could be true and yet not be ground for securing a search warrant for the reason that the record showed the defendant was running a place of business as herein stated. Of course, this statement in paragraph 6, supra, is not such statement upon which defendant could predicate a prosecution for perjury. Suffice it to say it was an absurd statement made in an affidavit for a search warrant and the contradictory statements in another paragraph saying that it was the residence of the defendant or some one unknown. The affidavit stated positively sufficient facts to issue the search warrant, and the court did not err in overruling the motion to suppress.

It is next urged by the defendant that the court erred in overruling his demurrer to the evidence, and his motion for a directed verdict. The evidence shows that the officers in making the search found hidden in the wall of the building, just over the door that leads from the main part of the building to a room in which the defendant slept; that it was admitted by the defendant he occupied the room as a sleeping room; the officers secured seven pints of whisky, one pint of alcohol, and one of gin. Section 2, ch. 153, S. L. 1933, page 338, 37 Okla. St. Ann. § 1, in part provides:

“It shall be unlawful for any person, individual or corporation to furnish, except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, or to manufacture, sell, barter, give away or otherwise furnish any liquors or compounds of any kind or description whatsoever whether medicated or not which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight, and which is capable of being used as a beverage. * * * »

The defendant in his testimony on his motion to suppress the evidence claims he did not know the whisky was where the officers found it; that he did not know who put it there, and that he had nothing to do with its being placed in the wall where it was found. The proof shows that he and a party who had been in partnership with him had secured a government license to sell liquors. The defendant also claims he knew nothing about this license being secured by his partner, who had not been in business with him for several months.

Many authorities are cited by the defendant to sustain his position that the judgment and sentence against him is not sustained by the law and the evidence, and that the affidavit for the search warrant was improper and not sufficient upon which to predicate the issuing of the warrant.

The quantity of whisky found at the place of business of the defendant is a small quantity, being a gallon and a pint. In the trial of the case the state made no effort to show that the statement in the affidavit made by Ed West, as to the parties going away from the defendant’s place intoxicated, and that anyone had been seen in and around the place intoxicated. The evidence in this case is sufficient to sustain a conviction, but in view of the fact that the state made no effort to show that his place of business was a place of public resort, other than that admitted by the defendant that people came there to eat, and to buy gas and oil, and to dance, or that there had been trouble of any kind or character around the defendant’s place of business, we feel that the judgment in this case should be modified from a fine of $50 and 60 days in jail, to a fine of $50 and 30 days in jail, and as so modified the judgment of the trial court is affirmed.

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