text:
    W. D. (BILL) MILLER v. STATE.
    No. A-9501.
    Aug. 26, 1938.
    (82 P. 2d 317.)

      J. Scott Vincent, of Cheyenne, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was by information charged in the trial court with the crime of rape in the first degree; was tried, convicted, and sentenced to the state penitentiary for a term of 15 years. From the judgment and sentence W. D. (Bill) Miller, the defendant in the trial court, has appealed, and will in this opinion be referred to as the defendant.

The testimony on behalf of the state in substance is as follows: Ferrell Wickham, the injured party, testified:

“I am eight years old; am in the fourth grade in school; I live with my mother and father Mr. and Mrs. Wickham. On or about the 11th day of June, 1937, I was visiting my sister Mrs. Whitfield; my sister has two daughters, Joyce Lee and Virgie; Joyce is six years old; I went down to my sister’s home some time before noon on the 11th of June, 1937; W. D., or Bill Miller came down to my sister’s some time after dinner; he came down on horseback and let us ride his horse; Joyce Lee, Leonard and I rode the horse and went down to the barn and shop; the next time I saw Mr. Miller after he went to the house was down at the shop; when we went to the shop the first time he did not do anything, then when we went back the next time he took Joyce Lee and I off the horse, he did not take Leonard off, Bill told Leonard to ride down there by the river, and he did. After we got off the horse we went into the shed. Roy’s car was in the shed on the north side of the blacksmith shop; it was closed in on all four sides, the carshed was not closed in; we went in the shed by the car. Mr. Whitfield’s house is southeast of the blacksmith shop and shed, you can see the top of the Whitfield house from the shop. There was no one present except Joyce Lee, Bill Miller and myself. After we got in there between the car and the blacksmith shop Bill Miller pulled us up on his lap and played with us; he was sitting on the running board of the car. Q. Do you mean, Ferrell, he played with your legs? A. Yes. Q. Did he play with your private parts? A. Yes. Q. What clothes did you have on at the time, Ferrell? A. Just had on our panties and dress. Q. Did he remove your panties? A. Yes. Q. Tell the jury what happened. A. After that he told us to stand on the running board of the car, then he pulled my panties down and put his private part to my private parts. Q. Now, Ferrell, by him you mean Bill Miller? A. Yes. Q. Did he make any penetration then? A. He told us not to tell. Q. I mean did his private organ penetrate into your privates? A. Yes. Q. And after that, did he do Joyce Lee the same way? A. Yes. Counsel for the defendant moved the court to strike that question in regard to Joyce Lee as being wholly prejudicial to the rights of the defendant. The motion was denied and counsel excepted. Q. Joyce Lee, there is one other question — I mean Ferrell too — at the time Bill Miller put his private parts to yours, did he get any secretion on you? A. Yes. Q. Whereabouts on you was it? A. Right about here (indicating). Q. Now, after that, did the defendant Bill Miller say anything to you about telling it or not telling it? A. Yes, sir, he told us not to tell, if we wouldn’t he would give us a dime. Q. Did he give you the dime? A. Yes.”

In substance, the witness further stated:

“I remained at my sister’s until the following day, when I was taken home by my brother-in-law and sister; my mother went with them on to Cheyenne and my mother returned home about 4 o’clock in the afternoon, and immediately after she returned from Cheyenne I told her what Miller had done to me in the shed down at my sister’s. I did not talk to Mr. Whitfield or my sister about what had happened at the shed. I slept with the Whitfield children that night in my petticoat; Leonard is five, and Joyce Lee six. I went home the next morning; when I got home mother and my 13-year-old sister was there; we live about four or five miles from where Mr. Whitfield lives; I played with the children down there at my home the next day; I told my 13-year-old sister what Miller had done some time after dinner. I do not have any idea what I told her; I told my mother just what I am telling here; I could walk just like I always did, my body was not injured at all. At the preliminary trial in Judge Crane’s court I testified that I was not sore. Q. Do you know what penetration is, you don’t do you? A. No. Q. You don’t understand what the word means? A. No, sir. Q. Do you know what secretion means? A. Yes, it means did he get any wet on me. Q. Now, did you testify to that in Judge Crane’s court? A. I did not unless you asked about it. Q. Do you remember now whether you told or whether you did not? A. Whether I told you? Q. Told about the secretion? A. I know I didn’t unless you all asked me. Q. Who told you, young lady, what secretion was? A. I think Mr. Bevins did? Q. Understand now there is nothing wrong about Mr. Bevins telling you that, that is all right, he explained to you what secretion was? A. He did the other day; he didn’t the other time. Q. I understand, but since then he has? A. Yes. Q. He did not tell you what penetration meant? A. No, sir. Q. Now, then, have you ever at any time done that with little boys? A. No, sir. Q. And do you claim Bill Miller did what you said he did was the first time you had ever been done that way? A. Yes. Q. And you want to tell this jury you were not sore in any way? A. No, sir. Q. You were not? A. No, sir. Q. Did you ever tell your dad or your brother-in-law about what your testimony would be before the preliminary or before you was in Judge Crane’s court? A. No, sir. Q. You never did? A. No, sir. Q. Now, Ferrell, at the same time that the county attorney and the other people told you what secretion was, did they tell you what your private parts were? A. Yes. Q. Now, at any time when you were down at the shed you didn’t see Miller’s private parts did you? A. No, sir. Q. You did not cry, did you? A. No, sir. Q. And as far as your feelings were concerned, you felt perfectly normal, and went to the house with the other little girl? A. Yes, I went to the house.”

Mrs. Maggie Wickham stated:

“I am the mother of Ferrell Wickham; on the 11th day of June, 1937, Ferrell was at my daughter’s, Mrs. Whitfield’s; Ferrell stayed all that day and did not get home until the next morning; I went to Cheyenne with Mr. and Mrs. Whitfield that morning and we did not get back until about 5 o’clock; we left for Cheyenne about five minutes after Ferrell came home; Ferrell remained at home with the other children; I was not with Ferrell by herself until after I came home from Cheyenne; I went in the bedroom to undress and Ferrell came in and says, ‘Mother, I want to tell you what happened while I was .over at Lilly’s,’ that is my daughter’s name, and I says, ‘What;’ and she told me about Miller mistreating her and my little granddaughter;. Mr. and Mrs. Whitfield had not left for home and I called my daughter and told her to come here, and she says, ‘Come on out to the car,’ and I says, ‘No, come in here,’ and she came in and I told her and she went on home.”

On cross-examination witness stated:

“Roy and Lilly Whitfield are my son-in-law and daughter; Ferrell told me what Miller had done about five minutes after I returned from Cheyenne; after she told me I questioned her as to where she was and who was with her and all about it. I made an examination of her in a way; I did not ask her whether or not she was sore; I did not take her to a doctor that day; I do not know whether it was two or three weeks after that before I went to the doctor. If Dr. Stephenson says it was the 3d of July, that might be right. The reason I did not go sooner I did not deem it necessary. The county attorney and the sheriff came out to see me, I believe it was Mr. Redden and Mr. Bevins; they did not say anything to me about taking her to a doctor; I don’t know whether she was sore or hurt, I just taken her because I thought it was best. I could not be positive about what time it was I went to the county attorney’s office, the reason I did not go earlier to report it there were different things, sickness for one thing. I don’t know whether it was the 26th of July or not.”

Roy Whitfield, testifying on behalf of the state, stated:

“Joyce Lee Whitfield is my daughter. On June 11, 1937, Ferrell Wickham was at my place; Bill Miller came to my place about 12:30 in the afternoon; he lived at the Hawthorne place about two months. On June 11, 1937, I was living in a little shack facing east, there was a shed and carshed a little ways north west from the house, the building was out of sight from the house; the little shed building had a door on the east with the carshed attached to the shed with no sides excepting where it joined on the shed; my car was in the shed on June 11, 1937. Bill Miller came to the house and wanted my wife to fix a pair of gloves so he could rob a bee hive, and I told him I had a pair of gloves that might be all right and Miller said, where are they, and I told him they were up by the side of the road where I was fixing a flat, they must be up there; Miller went out and looked for the gloves. The children liked to ride the horse and Miller let them ride. I did not learn until Saturday about 5 o’clock there had been any immoral or improper conduct between Miller and my sister. This was on June 12, 1937.”

Mrs. Roy Whitfield testified:

“There were two conversations between Bill Miller and myself and other persons, the first one was Saturday after we got back from town and found it out. One occurred down at the well; there was only Roy, Miller and myself present, I went down to the well with two buckets in my hand and Bill Miller says, T will get that water for you,’ and I says, ‘No thank you, I will carry my own water,’ and Miller rode on to the well and says, ‘Mr. Whitfield, you owe me for getting the cows up for you,’ and Roy says, T don’t owe you a thing,’ and Roy begin to talk to him about what he had done, and Miller says, ‘What have I done?’ and Roy says, ‘You know what you have done to those two little girls,’ and he says, ‘What did those two little girls tell you?’ and he denied he had done anything to the two girls and went on home.
“The next conversation was in the car; we had started to Sunday school and drove by where Miller lived, and as we went by the house he waved at us, and Roy stopped the car and he came up to the car and says, ‘Roy I have done wrong and I am sorry, do forgive me and give me a chance, I didn’t sleep a bit last night, give me a chance, don’t send me back to the penitentiary.’ He seemed to be talking to me, he says, ‘Go and talk to your father and tell him to come on down’; he never did say what he had done. He said, ‘If you will let me go, I will be a man from here on out,’ and he looked like he was real sorry, and he was weaving and trembling, and we started on, and just as we were about to get out of sight he started on off.”

On cross-examination witness stated Bill said:

“I have done wrong, I want you to forgive me. Q. Didn’t he say if I have done wrong? A. He said I have done wrong and want you folks to forgive me.”
“That was on Sunday morning; Bill Miller did not use the word ‘if’ in his conversation. I did not testify in the preliminary hearing. I don’t know whether I heard my husband testify in the preliminary or not. You cannot see the blacksmith shop and part of the shed from the house, you have to go up on a rise before you can see it. When Bill came up to the house he tied his horse to a bush about ten feet from the house; the children asked him to ride and he said all right and they untied the horse and brought it up and he helped them on. The children were gone quite a while and I got uneasy and called them; they were gone 15 or 20 minutes on the horse in the lot, the three of them were on the horse. Bill Miller was out there, he was not on the horse with them, they watered the horse, and while they were watering the horse I called again and they came to the house, and Miller came and helped them down. Miller said something about he had to go, and I said ‘children get off and let him have the horse,’ and he stood around a bit like a fellow just naturally will, and in about five minutes he got on the horse and left.
“When the children came up to the house they asked Bill to let them ride the horse some more, and he gave each one of them a dime; he then rode away and I did not see him any more that day. Ferrell did not complain of any soreness. Roy, my husband, was the first one I told about what mother had told me about what had happened to Ferrell, and Roy said, ‘Is that a fact,’ and I said, ‘that is what they say,’ and he said, T will find out about it.’
“When we got home Roy put the car in the shed, and said, ‘You bring the buckets,’ and I went into the house to get the buckets and went on to the well, and that is when the defendant Bill Miller came up and said he had driven the cows up. Roy was at the well when Miller said he would carry the water for me. Miller looked snoopey to me at the time; he looked as pale as could be; he denied he had done anything to the little girls. Roy said, ‘What did you do to those little girls?’ Q. Did he put any special time or place? I don’t think he did, was the answer. Miller said, T did not do anything.’ When he rode up to the well he had a look of guilt on his countenance. Bill said before he left, ‘Well I am not guilty,’ and and Roy said, T will be seeing about it.’ Bill Miller asked Roy, ‘What are you accusing me of?’ and he says, ‘What have you done — you know what you did, Bill Miller, without asking me.’ Bill Miller says, T am not guilty.’
“I had a conversation with John Hawthorne about occupying the house Miller lived in, I told him we were down there and did not have enough room; Hawthorne did not say Bill Miller was giving satisfaction, but that if Bill Miller wants to leave you can have the house, that Bill was batching and was getting tired.
“Bill told us he had some little trinkets at his place; he had a little matchbox about this long (indicating) ; he gave the matchbox to me about the time he left; he came by our house and said, ‘Here is this thing I have been telling you about’; he said it was a beautiful thing, and it was.
“My husband and I had not been planning for several weeks to get Miller out of the Hawthorne house, nor did we use the scheme of the way he treated our little girls to get him out; I know my husband told Miller, ‘There is another person interested in this matter and I will have to consult him,’ and he went to my father’s. I was not there when he came back. Q. After Bill gave you those things you wanted you went up to Johnny’s? A. No, we didn’t. Johnny came up and says, T thought you were going to move,’ and we says, ‘We are.’ ”
“It must have been a week or more after Bill gave me those things before we moved to his house.”

Several pages are taken up in the examination of the witnesses which have no bearing upon the charge in this case. The officers who arrested the defendant in Oklahoma City testified the defendant on his way to Cheyenne questioned them as to whether or not he might be able to get out by serving a short sentence. There is no evidence to show what brought about the conversation, or what crime the defendant was asking about, if any.

Dr. W. L. Stephenson, testifying on behalf of the state, stated:

“I know the little girl by the name of Ferrell Wick-ham; she is about eight years of age; she was brought to my office on or about the first day of July, 1937, and I made an examination and found that the hymen had been partially ruptured. There was some discoloration around the rupture; it would indicate some penetration of the vagina; the vagina is the organ where sexual intercourse takes place from the hymen to the womb; I do not know what caused the rupture of the hymen; it would have to have been some foreign body.”

On cross-examination Dr. Stephenson said:

“The little girl was brought to my office by her mother; I was advised by the county attorney to make the examination; I would not attempt to tell what caused the rupture, sometimes little girls rupture the hymen themselves; it could be done by a sudden fall. The presence or absence is no proof of prior sexual intercourse; I am familiar with what medical statistics show as to the number of young women who have never indulged in sexual intercourse who have perfect hymens, the only statistic I know of is one in 3,000. Medical science agrees that a recent rupture of the hymen will heal in eight to 20 days after it happens. I made the examination on the 3d of July, 1937. Where a man had raped a little girl eight or nine years of age, the child would be sore for several days thereafter. She would probably be so sore she could hardly walk.”

On re-direct examination Dr. Stephenson stated a slight penetration would leave very little soreness.

The foregoing is the substance of all the testimony it is deemed necessary to incorporate in this opinion in order to determine whether or not the defendant had a fair and impartial trial, and whether or not the evidence is sufficient to sustain the verdict and judgment.

The errors assigned are:

“That the trial court erred in overruling the motion of the plaintiff in error for a new trial; the court erred in overruling defendant’s demurrer to the evidence; the court erred in overruling plaintiff in error’s motion for an instructed verdict of not guilty; the verdict of the jury is not sustained by the evidence and is contrary to law; the court erred in its instructions.”

In order to support a conviction on a charge of rape it is essential that the state show not only the assault but also the consummation of the crime charged by having carnal knowledge of the female. Penetration is necessary according to all the authorities to complete the crime of rape.

“Rape” is defined by section 2515, Okla. St. 1931, 21 Okla. St. Ann. § 1111, under the first subdivision thereof, which is applicable to this case, to be

“An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“1st. Where the female is under the age of 16 years.”

Section 2518, 21 Okla. St. Ann. § 1114, declares that:

“Rape committed by a male over 18 years of age upon a female under the age of 14 years.”

Our Penal Code, § 2517, 21 Okla. St. Ann., § 1113, provides that:

“The essential guilt of rape, except with the consent of a female over 14 years of age, consists in the outrage to the person and feeling of the female. Any sexual penetration, however slight, is sufficient to complete the crime.”

Under the provisions of the statutes quoted the essence of the crime is the violence done to the person and the feelings of the injured female which is completed by sexual penetration, while the slightest penetration is sufficient, there must be proof to some degree of entrance of the male organ, that is, it must be shown that the private parts of the male entered at least to some extent those of the female.

The charge in this case is one that arouses the passion and prejudice of citizens as well as the jurors, and for that reason it is the duty of the court to closely scrutinize the evidence to ascertain whether or not there is sufficient evidence to establish the crime of rape. In this case the court instructed the jury as to the crime of rape in the first degree, and all included offenses. The jury returned a verdict against the defendant of rape in the first degree, fixing his punishment at 15 years in the state penitentiary.

This court is not unmindful of the rule frequently announced to the effect that the weight and credibility of the witnesses is for the jury, and the court will not reverse a conviction on conflicting evidence where there is substantial evidence supporting the verdict. Witt v. State, 29 Okla. Cr. 357, 233 P. 788, and authorities therein cited.

This court has ruled that rape may be sustained upon the uncorroborated testimony of the prosecutrix, but the court further advises that a charge of rape is one, as stated by Lord Hale, as an accusation easy to make and hard to be proved, and harder to be defended by the accused, though ever so innocent.

If the defendant in this case is guilty of the crime charged, the punishment inflicted is not sufficient. It is necessary to consider the circumstances leading up to the charge brought against the defendant, and the environments at the time the crime is alleged to have been committed. The defendant had visited the home of the sister of the prosecutrix, and had secured the assistance of the sister to fix some gloves, and after being told by the husband, who was a brother-in-law of the prosecu-trix, that he had a pair of gloves out where he had been fixing a casing, left the house to go hunt the gloves.

The facts further show the daughter of the prose-cutrix’s sister, a small son and Ferrell had been riding the horse of the defendant, and they came out and wanted to ride and the defendant permitted them to ride the horse; later on it is claimed they rode down to a shed where the two little girls were taken from the horse and the boy rode on. The state’s testimony shows the defendant took one of the girls on each knee and felt of their private parts and then the prosecutrix says he told them to stand up on the running board of the car and he put his private part up to their private parts. In a leading question by the state they asked if he penetrated her, and she said yes, but on cross-examination she admitted she did not know what penetration was and did not know what secretion was, but that Mr. Bevins had told her it meant something wet, or words to that effect.

The mother claims that on Saturday following the alleged offense on Friday, the mother told her daughter, Mrs. Whitfield, at whose barn the offense is alleged to have taken place. That afternoon Mrs. Whitfield says the defendant came to their place; she started to the well for some water and he offered to carry the water for her and she declined saying she would carry her own water. The defendant then told Roy Whitfield he owed him something for bringing the cows up, and Whitfield said he did not owe him anything, and asked him how he had treated the little girls and the defendant asked him what he meant, saying he had not done anything wrong. About the 3rd of July following the offense on the 11th day of June, 1937, the mother of the prosecutrix took her to Dr. Stephenson’s office at Cheyenne, at the request of the county attorney and had her examined. This was several weeks after the alleged occurrence.

The defendant moved away from where he was living, and the Whitfields moved into the house. He had left some little trinkets there when he moved and told Mrs. Whitfield he had left them for her. One was a matchbox, a very beautiful piece of work.

The doctor testifying stated there was a slight rupture of the hymen, but he could not tell how it was made, a sudden fall might have caused it, or the little girl might have caused it herself, that there are very few women unmarried who have never had sexual intercourse that have perfect hymen — one in every 3,000. The prosecutrix claims the defendant told her he would give her a dime not to tell. The record shows the defendant at the house, before leaving the Whitfield place, gave each of the children a dime to get off the horse, as they wanted to ride longer. The record further shows the Whitfield family were talking to the defendant, and Mrs. Whitfield was receiving gifts from him up to the time he left the neighborhood.

It is a matter of greatest concern for the courts to protect from violence the outraged womanhood of our country. The protection of the mother, wife and daughters of our land, and the preservation of the sanctity and security of our homes all depend on the certainty and promptness with which cases of this character shall be visited with the just penalty of the law, and it is the duty of the courts and juries to give it effect, but a criminal trial should be an intelligent conscientious investigation under the laws with every favor for life and even reasonable doubt as to the facts in favor of the prisoner. Our law guarantees to every one accused, regardless of race or color, high or low, whether rich or poor, a fair and impartial trial, and it is the duty of the court to see that the testimony is sufficient to sustain a conviction before imposing sentence upon one charged and convicted of a crime.

The principal contention of the defendant is that there is not sufficient evidence to warrant a conviction of the defendant of the crime of rape. The length of time the family waited before starting the prosecution against the defendant, and the fact that he visited and talked with Mr. and Mrs. Whitfield, the sister and brother-in-law of the prosecutrix, and Mrs. Whitfield accepted gifts from the defendant after the alleged offense, and the further fact that the prosecutrix claims that Joyce Lee Whitfield was present at the time of the alleged rape; and the further fact that the testimony as to penetration is indefinite, and in our judgment is not sufficient to sustain a conviction of rape against the defendant.

While it is a rule approved by this court that where there is any evidence to support a conviction, or where the evidence is conflicting, the appellate court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, and ordinarily the verdict approved by the trial court will be allowed to stand, but cases of this character have always been held an exception to such rule, and even exceptional in this and other particulars from the rule of ordinary criminal cases.

The view we take of this record it is not deemed necessary to consider the other errors assigned by the defendant not specially referred to in this opinion.

After a careful examination and study of all the testimony as shown by the case-made, we hold that the evidence is insufficient to sustain a conviction of rape. Vickers v. U. S., 1 Okla. Cr. 452, 98 P. 467; Kitchen v. State, 61 Okla. Cr. 435, 69 P. 2d 411; Witt v. State, 29 Okla. Cr. 357, 233 P. 788; Dubois v. State, 22 Okla. Cr. 308, 210 P. 1043.

For the reasons stated herein, we are convinced that the evidence against the defendant is insufficient to sustain the judgment, and the case is and must be reversed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    JACK FREEMAN v. STATE.
    No. A-9364.
    Sept. 2, 1938.
    (82 P. 2d 1072.)

      John W. Whipple, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jesse L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

This is an appeal of Jack Freeman from a conviction on assault to do bodily harm. His punishment was fixed by the trial court at three years in the state penitentiary.

The defendant, Jack Freeman, was jointly charged by information with Henry Cleveland and Morris Poteet with assault to kill. A severance was granted and the state elected to try the defendant Freeman first. The record was properly saved and the defendant has appealed. The substance of the testimony is as follows:

The prosecuting witness Ray Goff was a tenant on the farm owned by Henry Cleveland. Cleveland had furnished Goff with a sow to raise hogs on the shares; at the time of the trouble the sow had several pigs. A few days prior to the difficulty Goff was in town and saw Cleveland and they discussed the division of the pigs, at which time Cleveland advised Goff he could not rent him the place for the following year as he wanted to move out to the place.

On the 19th day of May, 1936, Cleveland, Poteet, Jack Freeman and his wife drove out to the farm, drove up in the yard and got out, and went down to look at the sow and pigs. At this time Goff was not at home, but his mother-in-law went to where he was down near the Witt place and told him the parties were at the house.

The state’s testimony further shows that while Goff was at the Witt place Witt told Goff that Cleveland had advised him he was getting Goff off the place because he could not get along with him, or words to that effect. When Goff went back home, he and Cleveland went into the house and had some words about what Witt had told Goff.

The testimony further shows that Goff had a jar of whisky, and that Cleveland and Goff drank some of the whisky, and Goff finally demanded that Cleveland go to Witt’s place with him in order to show Goff had not lied as to what he claimed Witt had told him Cleveland had said and they started to go across the field the near way to the Witt place, got as far as the gate and Cleveland refused to go; Goff took him by the collar and started dragging him on toward the Witt place, finally Cleveland and Goff came back because Cleveland claimed he had heart trouble and did not want to walk that far and the parties agreed they would all get in Jack Freeman’s car and drive to Witt’s place, claiming they were in a hurry to get to Stillwater to get a girl of one of the parties to take her home from school.

When they left the Goff home Jack Freeman and his wife were in the back seat of the car. Poteet was driving and Goff and Cleveland were in the front seat, Goff being between Poteet and Cleveland. Shortly after the car had passed out of sight on the farm road going down to the highway the wife saw Goff coming back toward the house bleeding and considerably bruised. He came to the house but she could not do anything with him; he went down to the woods or field and finally was found near a neighbor’s place bleeding and partly unconscious. A doctor was called, but he could not do anything with him, and finally he was taken to a hospital, where he was treated for cuts and head bruises.

Goff, in his testimony, says they were driving out towards the road and the first thing he knew he was struck in the head with some kind of an instrument; someone said to beat him to death, or words to that effect, and throw him out of the car. The car was stopped, according to Goff’s statement, and he got out and wandered back toward his home.

Goff testified he had done nothing to cause them to beat him up, nor had he said anything, but the first thing he knew he was struck in the back of the head.

The defendant, Jack Freeman, stated Goff had been drinking, and as they were driving along the highway Goff reached over and grabbed Poteet around the neck and shoulders and Poteet lost control of the car and the car was about to run into some walnut stumps and he struck Goff with his fists and could not knock him loose from Poteet; he then hit him with some pliers or some other instrument and inflicted the wounds upon Goff, and they put him out of the car..

Cleveland and Poteet testified in substance to the same as Freeman. Cleveland says in addition that he asked Goff if he wanted him to go back to the house with him, and Goff said no. Goff in his statement says he was struck with a club by Freeman. The foregoing is the substance of all of the testimony.

The defendant has assigned twelve errors alleged to have been committed by the trial court, the sixth assignment being:

“That the verdict rendered herein is contrary to the law and the evidence.”

The eighth assignment:

“That the court erred in giving instructions numbered 3, 6 and 11.”

The eleventh instruction being as follows:

“You are further instructed that the assault by the defendant upon the prosecuting witness having been proven beyond a reasonable doubt, the burden of proving circumstances of mitigation, or that justify or excuse the assault rest upon the defendant unless the proof on the part of the state tends to show that such assault was justified or excusable.”

The prosecution in this case is brought under the provisions of section 1873, O. S. 1931, 21 Okla. St. Ann. § 652, which is as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding 10 years.”

The defendant insists that the court erred in giving instruction No. 11, and insists it shifts the burden of proof from the state to the defendant, when it stated:

“That the assault by the defendant upon the prosecuting witness having been proven beyond a reasonable doubt, the court shifted the burden to the defendant to prove his innocence,” and that the language of the instruction encroached upon the province of the jury.

In Carter v. State, 12 Okla. Cr. 164, 152 P. 1132, in paragraph one of the syllabus the court said:

“Instructions which tend to shift the burden of proof by requiring the defendant to establish his defense by a preponderance of the evidence should not be given in any criminal case.”

In the second paragraph of the syllabus the court said:

“Instructions submitted by a trial court to the jury should be clear and absolutely free from any suggestion as to the verdict the court expects. Any instruction which has the effect of intimating to the jury that the court expects a verdict of guilty, or expects the jury to go into the realm of possibilities for the purpose of finding a verdict of guilty, is fundamentally wrong.”

In Love v. State, 12 Okla. Cr. 1, 150 P. 913, in the fourth paragraph of the syllabus, the court said:

“Instructions couched in language which implies the expectation of the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to convict, or which tend to shift the burden of proof, are improper.”

In Bauer v. State, 3 Okla. Cr. 529, 107 P. 525, in the second paragraph of the syllabus the court said:

“An instruction, couched in language which implies the expectation of the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to convict, or which tends to shift the burden of proof is improper.”

The jury is bound to take the law from the court, but questions of fact are to be decided by the jury. An instruction of the court must not invade the province of the jury or show any interest beyond a plain statement of the law applicable to the facts.

In this case it will be noticed that the court invaded the province of the jury to the extent of telling the jury that the assault by the defendant upon the prosecuting witness had been proven beyond a reasonable doubt and placed the burden of proving the circumstances of mitigation, or the justifying or excusing the assault of the defendant unless the proof on the part of the state tends to show that the assault was justified or excusable.

The court in this instruction shifted the burden of proof by requiring the defendant to establish his defense after telling the jury that the assault had been proven beyond a reasonable doubt. This instruction may have been understood by the jury that the court expected a verdict of guilty, or construed as an instruction that it was the duty of the jury under the evidence to convict the defendant. We think the jury should have been instructed that after a fair and impartial consideration of all of the evidence in the case, if they were not convinced beyond a reasonable doubt of the guilt of the defendant as charged in the information, it was its duty to acquit the defendant.

It is never the duty of the jury to convict a defendant until after a fair and impartial consideration of all the evidence and the circumstances, it is convinced beyond a reasonable doubt of his guilt. The court should have left the jury free to act after properly instructing and advising it, if it had a reasonable doubt that the assault was justifiable it was its duty to acquit. Hooper et al. v. State, 26 Okla. Cr. 227, 223 P. 209; Nichols v. State, 10 Okla. Cr. 247, 135 P. 1071; Jarman v. State, 57 Okla. Cr. 226, 47 P. 2d 220; Bauer v. State, 3 Okla. Cr. 529, 107 P. 525.

An instruction placing the burden on the defendant to prove the assault made on the prosecuting witness by the defendant was justifiable is an erroneous instruction and tends to shift the burden from the state to the defendant.

A general instruction that the defendant is presumed to be innocent until his guilt is proved beyon'd a reasonable doubt was not cured by a general instruction that he was presumed to be innocent until his guilt was established beyond a reasonable doubt. Brown v. State, 14 Okla. Cr. 115, 167 P. 762.

We have refrained from discussing the evidence and the other errors assigned for the reason that this case will be tried again. For the reasons herein stated, instruction No. 11, complained of by the defendant, was an error on the part of the court, and for that reason the case is reversed and remanded with directions to proceed in conformity with this opinion.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    SIMON SCOTT v. STATE.
    No. A-9395.
    Sept. 2, 1938.
    (82 P. 2d 684.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Bob Shelton, Co. Atty., of Chickasha, for the State.
   BAREFOOT, J.

The defendant was charged by information in Grady county with the crime of larceny, was tried, convicted and sentenced to serve a term of four years in the penitentiary, and has appealed.

The defendant assigns nine errors, but in his brief only presents errors that the evidence is insufficient to uphold the verdict; that the prosecuting witness being an accomplice, there was not sufficient corroboration of his testimony, and that the court erred in overruling his motion for continuance.

The defendant was charged jointly with Bob Stone-cipher, and Jack Scott, with the larceny of a hog, the property of Jess Todd, in Grady county, Okla., on or about May 3d, 1936. Bob Stonecipher plead guilty, and was sentenced to serve a term of 10 years in the penitentiary. While serving this term he was returned to Grady county and testified for the state against his co-defendants. His testimony was that he became acquainted with Simon Scott and his younger brother, Jack Scott, a few months prior to the alleged offense; that these three parties and the father of defendant and Jack Scott went in a Ford car belonging to Jack Scott, from Duncan, in Stephens county, the home of defendant, to the home of Jack Shaw, a brother-in-law of the Scotts, who resided in Grady county. They then went to Rush Springs and returned to the Shaw home. That none of the Shaw family or any one else was there. That while they were there a hog came up, and some conversation was had about killing it, and that he finally took a .22 rifle and killed it. It was a spotted' hog. After they had killed it, Jack Scott and this defendant loaded it into the back end of the car and took it to the home of this defendant in Duncan. They arrived in Duncan about dark. The defendant Simon Scott was with them at the time the hog was killed at the Shaw home in Grady county, and returned with them in the car to Duncan. The witness and Jack Scott skinned the hog and cut it up in the home of this defendant. They then loaded the head, hide and entrails in the Ford car and started to take them away, when they were seen by police officers and picked up and arrested on the streets of Duncan and taken to police headquarters. The witness testified that this defendant did not help to dress the hog at his home as he was sick and went to bed, and was rather reluctant in his testimony against the defendant.

Jess Todd testified to the ownership of the hog; that he missed it from his place the day after it was taken. He was called to Duncan and saw the hide and entrails and identified the hide as being that taken from his hog. He lived only a short distance from Jack Shaw, who was a brother-in-law of the Scott boys. Jack Scott had visited his uncle at one time.

The officers of Duncan testified to arresting the defendants, Bob Stonecipher and Jack Scott, and taking from their possession the hide, head and entrails of the hog, and of searching the home of the defendant Simon Scott on the same night and of finding the meat of a hog, which had been cut into small pieces which was in a pan in the kitchen of defendant’s home. They also testified to the identification of the hide by the witness Jess Todd.

The defendant, his brother Jack Scott, and his wife, all testified that the defendant did not accompany the witness Stonecipher and Jack Scott to Shaw’s home on the date the hog was killed, and brought to the home of defendant. The defendant Jack Scott testifying that Stonecipher was driving the car and run into a hog and broke its back, and that he got a .22 rifle and that Stone-cipher killed the hog; that they loaded it into the car and brought it to the home of Simon Scott with the intention of finding the owner and paying him for the same as soon as they found him, but by reason of their arrest they had not had an opportunity to do so.

It will thus be seen that there was a direct conflict in the testimony of the state and the defendant. The jury heard the witnesses, had an opportunity to observe their demeanor upon the witness stand, and under the law it was for them to say whom they would believe. It has often been held by this court that it will not interfere and set aside a verdict of the jury where there is reasonable grounds to support it. Haddock v. State, 64 Okla. Cr. 353, 81 P. 2d 339; Bryant v. State, 63 Okla. Cr 270, 74 P. 2d 624; Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981; Brents v. State, 53 Okla. Cr. 26, 6 P. 2d 1080.

We cannot agree with the contention of the defendant that the evidence does not sufficiently corroborate the witness Stonecipher. The property was found in the home of defendant. It had evidently been skinned and dressed in his home. Defendant was home at the time, and while the evidence was that he did not participate in it, he knew it was being done, as he testified that Stone-cipher told him that he had been given the hog by his brother. The jury had a right to take into consideration the fact of the unusual manner of dressing the hog in defendant’s home, and the attempt to conceal and do away with that part which could have been identified. Defendant was a man of mature years. The proof showed that he had been to the penitentiary upon two prior occasions for the crimes of burglary and robbery, and had also been convicted in the federal court and served a jail sentence. His brother, Jack Scott, was only 17 years of age. The jury evidently considered that the burden should not be carried by this 17-year-old boy, but that the defendant should pay his part of the penalty.

In the case of Hufford v. State, 61 Okla. Cr. 141, 66 P. 2d 529, it is said (page 532):

“It is not essential that corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.” Rice v. State, 60 Okla. Cr. 398, 64 P. 2d 1240; Bond v. State, 54 Okla. Cr. 39, 14 P. 2d 425; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; McCurdy v. State, 39 Okla. Cr. 310, 264 P. 925; Patterson v. State, 42 Okla. Cr. 255, 275 P. 387; Bradley v. State, 43 Okla. Cr. 456, 279 P. 920; Morton v. State, 46 Okla. Cr. 361, 287 P. 1087.

It has often been held that the possession of recently stolen property is a circumstance to be considered by the jury, and to be given such consideration as the jury deems advisable in arriving at their verdict. Nicholson v. State, 18 Okla. Cr. 491, 196 P. 730; Gunter v. State, 17 Okla. Cr. 404, 189 P. 200.

The overruling of the motion for continuance filed by the defendant was within the discretion of the trial court, under the facts and the law. Defendant was represented by able counsel and in an able manner. There is nothing in the record to show that his health was so impaired that he was not able to present the defendant’s defense in the proper manner.

For the reasons above stated the judgment of the district court of Grady county is affirmed.

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


author: DOYLE, J.

text:
    FRED RAUSCH v. STATE.
    No. A-9436.
    Sept. 2, 1938.
    (82 P. 2d 687.)
    Lloyd C. Colter, of Nowata, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that Fred Rausch, in Nowata county, on or about the 30th day of May, 1936, “did unlawfully have the possession of 70 pints and 18 quarts of whisky and gin” with the unlawful intent to violate provisions of the prohibitory liquor laws.

The jury by their verdict found the defendant guilty as charged and fixed his punishment at a fine of $50 and 30 days imprisonment in the county jail.

From the judgment rendered on the verdict he appeals.

The evidence is not disputed that on the day alleged, Hugh Owen, sheriff of Nowata county, by authority of a search warrant, describing a Model A Ford car, and giving license number, owned by the defendant, Fred Rausch, parked on east Cherokee street, city of Nowata, proceeded to where the car was parked, and found the same locked, the officers were about to break open said car when the defendant came up, unlocked the car and said, “The whisky is in there.” Intoxicating liquors as alleged in the information were found in the car, and the defendant was arrested.

The errors assigned are that the court erred in overruling the defendant’s motion to suppress the evidence on the ground that the affidavit and the search warrant under which the search and seizure were made were insufficient, in that affiant had no personal knowledge of the facts sworn to; and that the information was insufficient to charge an offense.

The affidavit or complaint upon which the search warrant issued was verified by Hugh Owen, sheriff.

The sufficiency in form or substance of the affidavit or complaint for a search warrant and the search warrant issued thereon may be challenged by motion to suppress the evidence, or by an objection to the admission of the evidence. Such challenge is to be determined by the trial court. The purpose of the verified complaint for a search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the facts stated in the affidavit. In so determining the magistrate exercises a judicial function.

It is the settled rule in this state that, if the affidavit or complaint and the search warrant issued thereon are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the defendant to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained. Phillips v. State, 84 Okla. Cr. 52, 244 P. 451; Moss v. State, 4 Okla. Cr. 247, 111 P. 950.

Under the rule stated the motion to suppress the evidence was properly overruled.

It appears from the record that no objection was, made in the court below as to the sufficiency of the information.

It is the rule in this state, that where an information is not challenged either by demurrer or objection to the introduction of evidence, every intendment or presumption will be indulged to sustain it.

Finding the evidence sufficient and no prejudicial error appearing, the judgment appealed from is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    EDNA LAHOMA SKELLEY v. STATE.
    No. A-9239.
    Sept. 9, 1938.
    (82 P. 2d 843.)
    For former opinion, see 64 Okla. Cr. 112, 77 P. 2d 1162.
    David Tant, O. P. Estes, and Gordon Johnston, all of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

Permission was granted for oral argument to be had upon the petition for rehearing. Briefs in support thereof have been filed. Careful consideration has been given, the cases presented have been read, and the cases cited in the original opinion have been re-read. We have been unable to find anything which would cause us to change the opinion as first written. The suggestion that the instructions given by the trial court should be considered as a whole is, of course, true, and that was done before the writing of the original opinion. Instruction No. 24 (which is quoted in full in the dissenting opinion) does not, to our mind, in any way, present the defense of defendant of “excusable homicide,” based upon “accidental death.” This instruction does not even use the word “accidental,” and could in no way be construed as an affirmative instruction presenting this issue, to which defendant was entitled under the law. It uses these words just as they are used in the statute. The issue of “excusable homicide,” based upon “accidental death,” was at no time presented to the jury in an affirmative way, as held by this court, and every other court, in the decisions heretofore cited in the original opinion.

The only issue presented by an affirmative instruction was that of self-defense. Instruction No. 22 gives the jury the right to consider the statements made by deceased, but does not mention the word “accidental,” nor in any way give an affirmative charge that if deceased was killed accidentally, defendant would not be guilty of the crime charged. The decision in this case does not to our mind “overrule the settled law of this jurisdiction,” but sustains the principles which have been announced by this court since its organization, and by the courts of every state, the principle that:

“It is the duty of the court to instruct the jury from both the standpoint of the state and the defendant; and the defendant has the right to have a clear, affirmative charge, based upon the hypothesis that her testimony, and the testimony of her witnesses, was true, when this testimony affects a material issue in the case.”

An examination and special reference to the decisions cited in support of the contention of the state would lengthen this opinion to an undue extent. These cases are cited and reviewed in the dissenting opinion of Judge Doyle filed in this case. These two opinions express the honest divergent views of the members of this court after a most careful consideration of the record. The majority of the court are of the opinion that defendant was not accorded that fair and impartial trial to which she was entitled under the law of the land, and that the petition for rehearing should be denied.

DAVENPORT, P. J., concurs. DOYLE, J., dissents.


text:
    D. J. CLARK v. STATE.
    No. A-9459.
    Sept. 9, 1938.
    (82 P. 2d 844.)

      Mathers & Mathers, of Oklahoma City, and Alvin Moore, of Cheyenne, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

“That one D. J. Clark late of the county aforesaid on or about the 29th day of December, 1937, in the county of Beckham and state of Oklahoma, did then and there unlawfully, knowingly and wilfully sell one pint of spirituous, vinous, fermented malt and intoxicating liquor to one Leland Essary, contrary to,” etc.

A demurrer to the information was duly interposed on the following grounds: That the facts stated do not constitute a public offense; that the same is duplicitous in that more than one offense, if any, is charged in the information; and that it does not impart sufficient information to enable the defendant to properly prepare his defense. Which was overruled, exception reserved.

Upon his trial the jury returned their verdict finding: “the defendant guilty as charged in the information and fix his punishment therefor at a fine of $50 and 30 days in the county jail.”

Motions for new trial and in arrest of judgment were duly filed, and on January 29, 1938, overruled.

To reverse the judgment rendered on the verdict he appeals, and assigns as error the overruling of the demurrer to the information, and questions the sufficiency of the evidence to sustain the verdict.

The state relied for this conviction upon the testimony of two witnesses.

Leland Essary testified that he had lived in Clinton the past 25 years, was in the dairy business, on December 29th had occasion to be in Elk City, and that evening about 10 o’clock stopped at the Tower Tavern on the northeast side of the city, had lunch served by a man and woman, and then asked them if they had anything to drink there; they said no, a fellow there said, “I might rustle you a drink.” He talked to him, and the fellow left, that he went out and got in his car, and backed it up to the filling station in the same building, went in to get some cigarettes; the man there said he would have to go and get them, came back to his car and talked to Mr. Rice, who was in the electric appliances business at Clinton. Some fellow brought the cigarettes out there, and charged him 20 cents. Then the other fellow who had talked to him came and delivered a pint of liquor and he paid him for it. That he did not know the man who delivered the liquor, but it was not the man who delivered the cigarettes; that he opened the bottle of liquor and passed it to his friend, and a fellow reached in and grabbed it. That the man he talked to, or the man who delivered the bottle, was not the defendant.

M. Y. Baker testified that he was a constable; knew the defendant, Clark, and knew Leland Essary; that he saw the defendant and Mr. Essary at the Tower Tavern that night about 9 o’clock; that Mr. Essary came out of the cafe, went to his car and drove around in front of the filling station, went in, came out and went back to his car. A man came from another car to Mr. Essary’s car and talked to him; a party brought some cigarettes to Mr. Essary; that he saw the defendant come out of the filling station, go south about 100 yards, and then came back with a pint bottle sticking out of his left pocket, and went to Mr. Essary’s car, and handed the bottle to him. Mr. Essary paid him, and the defendant walked into the filling station and sat down; that Orlin Jones, chief of police, and Mr. Shope drove up and were sitting in their car, and he got out of his car and walked to their car and said, “I want to make an arrest here,” then he walked over to Mr. Essary’s car, he had taken the top off the bottle, and told Mr. Essary he was under arrest, then he took the bottle and pulled the switch keys from the car, then went into the station and told the defendant he was under arrest.

On cross-examination he stated that he took Mr. Essary to the city jail, then took a cash $22.50 appearance bond for drinking in a public place, and let him go home; that he never appeared in court; that when a man does not appear they plead him guilty and take his cash deposit to pay the fine and costs; that he did not know that it was liquor until he took the bottle from Mr. Essary; that he had Mr. Green with him in his car.

On the part of the defense, Leland Essary testified that the door of his car was open, when the fellow slid the bottle in on the floor of the car; that he was a little fellow, much smaller than the defendant, Clark; that he was positive the defendant Clark was not the man that delivered the whisky, and was not the man who had agreed to deliver the whisky to him.

Orlin Jones testified that he was chief of police of Elk City, and deputy sheriff; that with Bill Shope, he drove out to the Tower Tavern, and was there when Constable Baker arrested Mr. Essary; that he parked his car facing north and there was a coupe parked at their right, facing east, and Constable Baker was in a coupe west, and the defendant, Clark, was sitting on a bench in the filling station; that two men came and got in the car on the east side, and they sat there about 15 minutes when Constable Baker came up and asked them to go with him to shake the coupe down, and he asked him what for; Baker said, that some one delivered some whisky to that car, and he said he didn’t know anything about it, and refused to go. That he knows the defendant, D. J. Clark, and did not see him approach that coupe while they were sitting there.

On cross-examination he stated that he was there about 25 minutes before Baker approached him and asked him to go with him to shake the coupe down.

Walter A. Green testified that he is a farmer, living seven miles northeast of Sayre; that he went with M. Y. Baker to the Tower Tavern that night; that while they were sitting in the car in front of the filling station the defendant came out and went to the white house in the next block, went in, then came back to the filling station; that a car honked and he came out to the car, then went back in and came back with a package of cigarettes; that he was sitting with Mr. Baker at the time, and that was all he saw.

On cross-examination he was asked:

“Q. Did you see this Ford coupe parked over a little east of you there? A. The third car. Q. Did you see Clark go up to that car? A. Saw him bring a package of cigarettes up there? Q. You didn’t see anything else?”

The record shows at this time the county attorney asked leave of court to have a conference with this witness. Leave granted. The county attorney and witness leave the courtroom.

The objections interposed on the part of the defendant were:

“Overruled for the reason there were no objections at the time the court granted the request until the time the county attorney was returning from the conference with the witness.”

The record shows that after the conference there were no further questions asked by the county attorney.

As a witness in his own behalf, D. J. Clark testified that he lives in Elk City, and that he is the owner of the Tower Tavern; that the front part is the filling station, and the only door to it is the front door; that the partition between the filling station and the cafe is without a door; that he had rented the place to Mr. Long and his wife; that on the date alleged he was there that evening and Mr. Long said he was sick and had to go to bed for an hour or two, and asked him to stay in the filling station while he took á rest; that he was talking in there to Mr. Rice, from Clinton, when Mr. Essary came up, and wanted a package of cigarettes, he told him that he did not have them there, but had some in a machine in the cafe, and he went to the cafe, got a package of cigarettes and went out to the car and gave them to him; that he did not know Mr. Essary at that time; that he did not sell in any manner any liquor to the witness Mr. Essary, had none in his possession and none was sold to Mr. Essary so far as he knew.

On cross-examination he stated that he went south to a white house where Mr. Long sleeps, and woke him up, but did not bring back any liquor; that when he came back Mr. Essary came in and wanted some cigarettes and he went to the cafe and got a package; that Mr. Rice was sitting in the car with him when he delivered the cigarettes.

Asked if he had ever been convicted of a violation of the prohibitory laws of the state, he answerd that when he was 18, he together with another boy were arrested for having a half pint of alcohol.

When the state rested, the defendant interposed a demurrer to the evidence and moved for a directed verdict of acquittal, and again at the close of all the evidence renewed his motion for an instructed verdict, which were overruled and exceptions allowed.

It cannot, we think, be successfully maintained that the information gives to the defendant full information of the nature and cause of the accusation against him, to which he. is entitled under section 20, art. 2 of the state Constitution, Okla. St. Ann. Const, art. 2, § 20. Nor does it conform to the requirement of the statute that the information must be direct and certain as it regards the offense charged. Sec. 2884, St. 1931, 22 Okla. St. Ann. § 402, Proc. Crim.

The defendant in a criminal case, in view of his presumption of innocence, is not only entitled to know from the allegations of the information what facts the prosecution consider as sufficient to make him guilty of the offense charged with reasonable particularity, so as to enable him properly to make his defense thereto, but he is also entitled to demand that the information should charge the essential facts so specifically that the judgment in the case will be a complete defense to any subsequent prosecution for the same offense.

In this case the information was verified by the witness, M. Y. Baker. The testimony of this witness shows that he knew when he verified the information that the alleged intoxicating liquor was whisky. And when the information was drawn, verified and filed, the alleged intoxicating liquor was known to the prosecution to be whisky.

In the case of Byxbee v. State, 29 Okla. Cr. 9, 231 P. 898, it is said:

“There are many kinds of intoxicating liquors that come within the prohibition of the statutes, such as ale, wine, beer, extracts, alcoholic medicines, certain tonics, several kinds of commercial alcohol and many kinds of fermented beverages. The accused is entitled to know the kind of liquor he is charged with making, selling, or transporting illegally, in order that he may fairly prepare his defense. 14 R.C.L. 187, and cases cited.”

The charge must be stated with as much certainty as the circumstances of the case will permit.

In Cole v. State, 16 Okla. Cr. 103, 180 P. 713, the syllabus reads as follows:

“An information charging that defendant ‘did wil-fully and intentionally manufacture certain spirituous, vinous, fermented, or malt liquors, or an imitation or substitute therefor,’ is bad for duplicity.”

The proper allegation in an information charging a sale is that the defendant did sell or barter intoxicating liquor, naming or describing it.

It follows from what has been said that the demurrer to the information in this case should have been sustained.

It is also contended that the evidence is insufficient to support the verdict.

The testimony on the part of the state was from two witnesses. The state’s case rests entirely upon the identity of the man said to have sold the pint of whisky. The only testimony tending to connect the defendant with the sale was that of the prosecuting witness, Baker. The first of the two witnesses called by the state was Leland Essary, named in the information as the purchaser of the alleged intoxicating liquor, and he testified that the defendant, Clark, was not the man that sold and delivered the whisky to him, and in this he is corroborated by the testimony of the witness, Green, who was with the prosecuting witness, and by the testimony of the witness, Jones, chief of police.

As a witness on his own behalf the defendant positively denied making the sale of the whisky or having anything to do with it.

In the case of Jackson v. State, 12 Okla. Cr. 446, 158 P. 292, this court held:

“A judgment of conviction cannot be had upon testimony introduced for the state, when that testimony comes wholly from two witnesses of equal credibility, one testifying to the guilt, and the other testifying to the innocence, of the accused.”

In the opinion it is said:

“It is the duty of the state to establish beyond a reasonable doubt that the person on trial is guilty and that, too, by proper and credible testimony. The state cannot put on two witnesses and prove by one of them that there is a probability of defendant’s guilt, and another that he is innocent absolutely, and expect this court to uphold the judgment. One charged with crime is entitled to a fair and impartial trial, and to be convicted according to the forms of law; and it is the duty of the trial court to see that this is done.”

Our Procedure Criminal provides:

“If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant.” Sec. 3090, St. 1931, 22 Okla. St. Ann. § 850.

Carefully considering all the testimony in the case we are convinced that the trial court should have advised the jury to acquit the defendant when the state rested, because as a matter of law the evidence was insufficient to warrant a conviction.

For the reasons stated, the judgment of the lower court is reversed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    DOUG McAFEE v. STATE.
    No. A-9376.
    Sept. 16, 1938.
    (82 P. 2d 1006.)
    Lew H. Akin, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Thos. C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

The defendant was charged in the county court of Pottawatomie county with the crime of having unlawful possession of intoxicating liquor, was convicted and sentenced to pay a fine of $250, and serve a term of 60 days in the county jail, and has appealed.

The contention of defendant is that the court erred in failing to sustain his motion to suppress the evidence secured by a search warrant. For a determination of this question it is necessary to briefly review the facts.

A search warrant was procured by the sheriff of Pottawatomie county on the 6th day of March, 1937, for the purpose of searching lots 1 and 2, block 3, Harrison avenue addition to the city of Shawnee, and the filling station and store located thereon; “together with all cellars, outbuildings, automobiles and other conveyances occupied and under the control of John Doe.” The search warrant did not state who the owner was, or who was in possession of the premises, but did accurately describe them. While the search was being conducted, the defendant, coming from the south, drove his. automobile in or near the premises that were being searched. The sheriff had secreted himself in the shadow of a building while his deputies were conducting the search of the premises. It was about 10 p. m. Upon seeing the defendant drive up in his car, the sheriff asked the defendant to get out and immediately searched the person of the defendant, but did not find any intoxicating liquor. Defendant was asked by the sheriff what he had in his car. His reply was: “He had a load of whisky.” He then requested defendant to step into the room where other persons were being detained while the search was being made. The sheriff immediately looked into the window of the car and saw whisky on the floor boards and some on the seat. He saw six or eight pints, some wrapped and some unwrapped. He then took the keys out of the ignition and opened the turtle-back of the car and there found 90 pints of bonded, tax paid whisky. The defendant was then taken by the sheriff and his deputies to the county jail where he was charged with the possession of intoxicating liquors, to wit: whisky.

A motion was made by the defendant to quash the search warrant and evidence taken thereon. At the trial the question was very much stressed as to whether defendant’s automobile was located on the property described in the search warrant, or in the city streets. As we view the record the question of the legality of the search warrant or whether defendant’s automobile was on the premises therein described is immaterial to a proper decision of this case. The evidence did not reveal that defendant was in any way interested in the premises searched, either as owner or in possession thereof. If this decision is to be affirmed, it is not on the question of the legality of the search warrant, but whether defendant committed an offense in the presence of the officers,' and one which would permit them to search his automobile without the necessity of the issuance of a search warrant. To sustain his position on this point, the defendant, in his brief, cites the following cases: Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Graham v. State, 31 Okla. Cr. 125, 237 P. 462; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Wells v. State, 37 Okla. Cr. 305, 258 P. 285; Sowards v. State, 37 Okla. Cr. 431, 259 P. 157; Wallace v. State, 49 Okla. Cr. 281, 294 P. 198; Marple v. State, 51 Okla. Cr. 240, 1 P. 2d 836; Haltom v. State, 58 Okla. Cr. 117, 50 P. 2d 744. The state relies on the principles announced in the following cases: Miles v. State, 31 Okla. Cr. 4, 236 P. 907; Bynum v. State, 40 Okla. Cr. 352, 268 P. 993; Sands v. State, 36 Okla. Cr. 55, 252 P. 72; Bullington v. State, 38 Okla. Cr. 214, 259 P. 876; People v. Cardella, 233 Mich. 505, 207 N. W. 141; State v. Quinn, 111 S. C. 174, 97 S. E. 62, 3 A.L.R. 1500. Applying the facts in the case at bar to the law as announced in the cited cases makes this quite a close case. There have been many decisions, not only from this court, but from the other states, construing the statutes with reference to what constitutes the commission of an offense in the presence of the officers, giving them permission to search or arrest without the necessity of having a warrant. There is no doubt that under the decisions of this state, as announced in the cases above cited, the sheriff had no authority to search the person of the defendant as was done in this case. But as a result of this search nothing was found. The sheriff then asked defendant what he had in the car, and defendant informed him that he had a “load of whisky.” Under this voluntary statement or admission of defendant, which is undenied in this case, the officer then had the right to arrest defendant and search his car. The officer looked through the glass into the car and saw lying on the seat and floor from six to eight pints of liquor, part of which was unwrapped. The turtle-back of the car was then raised and there was found ninety pints of bonded, tax paid whisky. Under the above circumstances we are of the opinion that an offense was committed in the presence of the officer and that the search and seizure was legal. In the case of Miles v. State, 31 Okla. Cr. 4, 236 P. 907, it is said:

“We think that, if a suspected person informed an officer that he is engaged in the commission of a misdemeanor, although the visual, auditory or olfactory proof is not evident, the officer is justified in acting on the information of the person suspected, although he cannot have the right to act on the information of any other person. Information by the person amounts to an admission, or to a waiver of knowledge derived through the ordinary senses.” Sands v. State, 36 Okla. Cr. 55, 252 P. 72; Bullington v. State, 38 Okla. Cr. 214, 259 P. 876.

One of the most recent cases decided by this court, and in which the facts are very similar to the facts in the case at bar, is Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081. The officers here found 18 pints of whisky in defendant’s automobile. They had a search warrant for certain premises but had no specific search warrant for the automobile. They observed the liquor in the car by looking through the window as the officer did in the instant case. His keys were taken from his person and the automobile searched. Judge Doyle, in the opinion, said:

“It appearing that the defendant being under lawful arrest, the officers had a right as an incident of that arrest to search his car and person where they saw him violate the law.” Washington v. State, 37 Okla. Cr. 415, 259 P. 150; Bailey v. State, 39 Okla. Cr. 159, 263 P. 1114; Ellige v. State, 39 Okla. Cr. 262, 264 P. 220; Strickland v. State, 40 Okla. Cr. 94, 267 P. 672.

From the view above taken it becomes unnecessary to pass upon the validity of the search warrant. Finding no error in the record, we are of the opinion that the judgment of the county court of Pottawatomie county should be affirmed.

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


text:
    Ex parte M. C. HODGES et al.
    No. A-9530.
    Sept. 23, 1938.
    (83 P. 2d 201.)

      John T. Levergood, of Shawnee, for petitioners.
    Mac Q. Williamson, Atty. Gen., and Randall Pitman, of Shawnee, for the State.
   DAVENPORT, P. J.

This is an application for a writ of habeas corpus wherein the petitioners allege that they are unlawfully imprisoned and restrained of their liberty and seek to secure their release by order of this court from custody of the chief of police of the city of Shawnee.

Petitioners allege they are engaged in operating a grocery store in the city of Shawnee; that they are charged with violating Ordinance 554, as follows:

“Be it ordained by the Mayor and Board of Commissioners of the city of Shawnee.
“Section 1. That Section 114 of Art. 6, of Chapter 29, of the Revised Ordinance of the City of Shawnee, be and the same is hereby amended to read as follows:
“Section 114. Sunday Closing. It shall be an offense for any person, being the owners or having under their control any place of business, or business houses in the city, to open or cause the same to be opened between the hours of 12 o’clock p. m. Saturday night and 12 o’clock p. m. Sunday night, for the purpose of transacting business therein, and any person who commits such acts or permits or authorizes such acts shall be guilty of an offense. Provided, that nothing in this section shall apply to drugstores, hotels, restaurants, ice cream parlors, fruit stands, livery stables, service stations, paper plants, thea-tres and places of amusement. Provided further that nothing in this section shall prevent groceries and markets from selling meats, bread, fish and milk at any time before 9 o’clock in the morning.
“Section 2. That nothing in this ordinance shall operate to repeal any part or portion or section of chapter 29 of the Revised Ordinances of the City of Shawnee for 1931, and that the same shall operate to amend only the section above stated and that the amended section as herein set forth shall be treated and construed as though it had been originally set forth in said chapter.
“Be it further ordained that for the preservation of the public peace, health and safety, an emergency is deemed to exist, by reason whereof, this ordinance shall become effective and take force immediately upon its passage and approval.”

Petitioners allege that said restraint is illegal and unauthorized, in that said ordinance is not general and uniform in its operation and effect, that it does not apply to all selling on Sunday commodities, articles of trade and merchandise, and that such ordinance is special and exclusive and affects only those who sell groceries and meats on Sunday, and constitutes class legislation. That it is an attempt on the part of the city officials to regulate private business and industry; that said ordinance is unconstitutional with and in conflict with and is repugnant to the general statutes of the state of Oklahoma governing the same subject matter and especially section 2564, O. S. 1931, 21 Okla. St. Ann. § 908. That said ordinance if enforced would constitute an invasion of petitioners’ property rights and cause irreparable loss and damage; that said ordinance is a violation of the 14th Amendment to the Constitution of the United States, U.S.C.A. Const. Amend. 14, and in effect takes away their property rights without due process of law; that said ordinance is arbitrary in its operation in that it prohibits the opening on Sunday of certain lines of business, and allows the opening of those in other lines, is not general in its operation and in effect only grants special privileges and immunities to certain classes while without legal excuse denies them to others, in violation of the Constitution and laws of the state of Oklahoma in such case made and provided.

Your petitioners further show to this honorable court that they and each of them have heretofore petitioned the honorable district court of Pottawatomie county for a writ of habeas corpus, and that thereafter, and on the second day of June, 1938, a hearing was had before said court and the said district court denied these petitioners said writ and refused to discharge them from imprisonment; all of which is fully shown from the case-made of the proceedings had before said court, which is hereto attached, marked exhibit “A” and made a part hereof as written herein.

The facts stipulated constitute a violation of said ordinance on the part of the petitioners, and the only question to be determined is the validity of the ordinance. The city of Shawnee is a city of the first class, and is organized and operating under a charter form of government, under the authority of section 3 (a) art. 18, state Constitution, Okla. St. Ann. Const, art. 18, § 3 (a).

1. Under the constitutional provisions any city containing a population of more than 2,000 inhabitants may frame a charter form of government, consistent with the support of the Constitution and laws of the state of Oklahoma, and a city adopting a charter is accorded full power of local government, and as said municipal corporation under its charter it has power to enact ordinances and enforce ordinances for the purpose of protecting public peace, order, health, morals and safety of the inhabitants, even though general statutes exist regulating the same subjects. Shinn v. State, 59 Okla. Cr. 433, 61 P. 2d 1126.

2. The courts of this state have uniformly held that the provisions of a charter adopted and approved in accordance with such constitutional provisions becomes an organic law of such municipality and supersedes the laws of the state in conflict therewith in so far as they attempt to regulate municipal matters. In re Simmons, 4 Okla. Cr. 662, 112 P. 951.

It has also been further held that such charter provisions, where they conflict with the general laws of the state must give way, and while they may run concurrent with the general laws of the state they must not run counter thereto. State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826; Ann. Cas. 1918B, 139. In other words a municipality may move in the same direction as the Legislature but not contrary to or in opposite directions. 3 McQuillin on Municipal Corporations, sec. 894; Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097.

Petitioners contend that the ordinance in question is invalid, as contravening section 59, art. 5, of the Constitution, Okla. St. Ann. Const, art. 5, § 59, which prohibits class legislation, in that it does grant special privileges and immunities to some citizens and denies them to others and is inconsistent with the fourth sub-division of section 2564, O. S. 1931, 21 Okla. St. Ann. § 908, which provides:

“The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:
“First. Servile labor, except works of necessity or charity.
“Second. Trades, manufacturers and mechanical employment.
“Third. All shooting, horse racing and gaming.
“Fourth. All manner of public selling, or offering or exposing for sale publicly, of any commodities, except that meats, bread, and fish may be sold at anytime before nine o’clock in the morning, and except that food and drink may be sold to be eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day.”

Courts have uniformly recognized laws relating to the observance of Sunday as being within the rights of the Legislature to enact for the purpose of promoting order, and the morals of the people, and of securing their comfort, happiness and health, as being legitimate exercise of the police power. 25 R.C.L. 1416; Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533.

The Legislature also has the power to impose upon the public the civil duty of observing one day out of seven to rest. It is beyond the power of the Legislature to impose the observance of Sunday as a religious duty. Krieger v. State, 12 Okla. Cr. 566, 160 P. 36.

The expressed or implied powers granted to municipalities of the state relating to police regulations embrace a multitude of subjects, those enumerated in the statute to enact, ordain, modify or repeal any and all ordinances not repugnant to the laws of the United States and the Constitution and laws of this state as shall be deemed expedient for the good government of the city, the preservation of the peace, and good order; and the suppression of vice and immorality, and measures affecting the health and general welfare of the community. Section 6380, O. S. 1931, 11 Okla. St. Ann. § 642.

In 19 R.C.L. 805, it is said:

“A municipal ordinance of a regulatory nature in contravention of the general rights of individuals enacted under general charter powers is not only required to be constitutional, but must be reasonable as well; that is, the court before which it is brought must be able to see that it will tend to promote the public health, morals, safety or welfare; that the means adopted are adapted to that end, and that it is impartial in operation and not unduly oppressive upon individuals.”

The general rule that municipal corporations can exercise only such powers as are either expressly conferred on them or are necessary to carry into effect the powers thus conferred applies to ordinances regulating the Sabbath.

Counsel for petitioners, and respondent have filed briefs. In the cases cited ordinances have been considered which forbade generally the keeping open a business place or pursuing ordinary day labor on Sunday, containing provisions excepting persons who usually observe some other day as Sabbath, and excepting works of necessity and charity.

The petitioners in their argument insist that the ordinance in question is unconstitutional for the reason it permits certain classes of business to remain open on the Sabbath and requires the petitioners to close their grocery store, and is a violation of section 2564, O. S. 1931, 21 Okla. St. Ann. § 908, in this, that the ordinance permits drugstores to remain open on Sunday, which is not granted by the section of the statute, supra. They insist that the provision of the section only permits drugs, medicines, milk, ice and surgical appliances and burial supplies to be sold at any time during the Sabbath, but does not permit drugstores to remain open and sell anything they have in stock.

The petitioners further state that it is common knowledge that drugstores are now selling everything from footballs, baseballs, and hardware of different kinds, toys, and a great many of them sell certain kinds of dry goods, and that the ordinance is a violation of the statute, and void. They further insist the ordinance is void for the reason it permits hotels and restaurants to remain open all of the Sabbath Day when the statute permits only that food and drink may be sold to be eaten and drunk upon the premises where sold.

It would serve no useful purpose to set out in full the authorities cited upon which the respondent relies to sustain the ordinance, or upon which the petitioners rely to sustain their position that the ordinance is void for the reason that it grants to certain parties privileges not authorized by the general statutes of the state of Oklahoma, and denies the petitioners herein the right to sell groceries on the Sabbath Day.

This question was fully discussed in Ex parte Ferguson, 62 Okla. Cr. 145, 70 P. 2d 1094, and authorities therein cited. It is apparent from the provisions of the ordinance in question that it is inconsistent with and is in conflict with the statute. There can be no doubt of invalidity of the ordinance on account of its repugnancy to the statute. It is clear that the ordinance, in so far as it prohibits the sale of groceries by the petitioners, is directed at a particular class of business with an exemption to another class, prohibiting the petitioners from opening their place of business and selling groceries on Sunday and permitting drugstores to remain open all day. It would seem from the ordinance that the only thing the commissioners attempted to do in said ordinance was to prohibit certain classes of business from opening on Sunday and granting to others the privilege to remain open. The language of the ordinance shows it is not a general Sunday closing ordinance but a special one directly aimed without any apparent legal reason at certain classes of business with a general exception to another class and does therefore in effect grant special privileges and immunities to certain classes of business with a general exception to another class and does therefore in effect grant special privileges and immunities to certain classes of business while without legal excuse denying them to others.

For the foregoing reasons we are of the opinion that the said ordinance is void because in violation of the Constitution (art. 5, § 59, Okla. St. Ann. Const, art. 5, § 59), prohibiting special laws where a general law can be made applicable, and is inconsistent with the laws of the state. Ex parte Ferguson, supra.

It follows that petitioners are entitled to a discharge from the imprisonment from which they complain, and they are therefore by the judgment of this court discharged therefrom.

DOYLE and BAREFOOT, JJ., concur.


text:
    OTHO KENNEDY v. STATE.
    No. A-9394.
    Sept. 23, 1938.
    (83 P. 2d 198.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and E. Smith Hester, Co. Atty., of Purcell, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of McClain county with the crime of larceny of domestic fowls; was convicted and sentenced by the court to serve a term of one year in the state reformatory at Granite, and has appealed.

An information was filed in the district court of McClain county charging Otho Kennedy and Frank Brown with the crime of larceny of domestic fowls, on or about the 5th day of March, 1937. Frank Brown pleaded guilty to the charge, and testified for the state in this case. The record reveals that he had been formerly convicted and served a sentence in the penitentiary.

His testimony was that he met the defendant Otho Kennedy and Fred Hogue, on the streets of Purcell about 6:30 on the evening of March 5, 1937. That they were in a car belonging to defendant and they asked him to ride with them. During this time they discussed stealing some chickens, and he would not go with them, but got out of the car, and a little later met them at a barn about a mile from the business district of Purcell, and they had with them some chickens. That he helped them sack the chickens, and that because neither of the other two boys wanted to sell the chickens he took them and sold them to a produce house in Purcell about 9:30 at night. He said that he used the automobile of the defendant, Otho Kennedy, to deliver the chickens. That he received a check for $4.50 for the chickens. That the check was made out in his name and that he cashed the same at a drugstore in Purcell. This testimony is corroborated by the manager of the produce house, who testified that defendant was not present at the time that the chickens were sold and he never saw the defendant at any time. He testified that while going to deliver the chickens that he ran out of gas and went to a filling station for the purpose of procuring gas. That defendant was with him at this time. That the chickens were sold at about 9:30 p. m., and that after he sold the chickens that the three of them parked the car near the front of the “Lucky 77 Tavern” on the main street of Purcell.

Being an accomplice it, of course, was necessary, under the law, that his evidence should be corroborated, and by the testimony of other witnesses for the state, it was attempted to do this. The testimony of Sam Husky was that he was a policeman at Purcell and that on the night of the 5th of March, 1937, he parked his car in front of the “Lucky 77 Tavern” about 9:20 at night. In about 10' minutes he saw the defendant and Frank Brown and Fred Hogue park their car and pass by his car going into the “Tavern.” Elmer Meyers and his wife identified the chickens found at the produce house as being the ones stolen from them on the night of March 5, 1937.

The sheriff and a deputy sheriff testified that while defendant and Frank Brown were in jail they heard a conversation between them in which it was discussed as to whether or not defendant would plead guilty, and that defendant, in this conversation, made the statement that he wouldn’t go to the penitentiary for $1,500, and that he asked Frank Brown to plead guilty and take the blame and he would give him $500, and other similar statements.

Mr. Roy Williams, manager of the produce company, also testified that it was his judgment that the car in which the witness Brown delivered the chickens had red wheels, and was a car that was driven by defendant. His testimony was that the car was in the alley and it was in the night time about 9:30, and that he did not make a close inspection of the same.

We have carefully examined the evidence offered by the state to corroborate the witness Brown, and when taken together with the other evidence offered in this case, it does not appeal to us as being sufficient to sustain the conviction of this defendant and cause him to serve a sentence in the reformatory. In the first place, the evidence of the prosecuting witness was that he was not only an accomplice but he was a former convict. His story that the defendant was the party who suggested the stealing of the chickens and that he refused to go with him and got out of the car is quite unreasonable. He also testified that while driving with the parties they went to a gasoline station for gas. He gives the name of the station, yet the party who served them was not called by the state as a witness to corroborate this testimony. Nor was there produced the party whom he claims to have paid for the gasoline out of the proceeds of the money he received from the sale of the chickens. He also definitely names James Tyler and his father as being present at the service station, but neither of these parties was produced by the state to corroborate the testimony of the witness.

The defendant, testifying in his own behalf, denied all participation in the theft of the chickens or receiving any part of the proceeds of the sale thereof. He testified to meeting the witness Brown and Fred Hogue on the streets of Purcell about 6:30 or 7 o’clock and driving around and parking his car in front of the “Lucky 77 Tavern” at about 7:30 in the evening. That they got out of his car and parked the same directly in front of the Tavern. That he did not know where the other parties went, but that he went into the Tavern and remained there until it closed at about 12 that night. That he attended the dance there. In this statement he is corroborated by many witnesses.

W. L. Leveridge, a disinterested witness and merchant from Criner, Oklahoma, testified in detail as to being at the “Lucky 77 Tavern” and seing the defendant there at 8 p. m. He gives reasons as to why he knew that that was the time. Many witnesses, including the proprietor of the Tavern and his wife and many others testified that defendant was at the Tavern from 7:30 until it closed at 12 p. m. He was corroborated as to other details by several substantial witnesses. Several substantial citizens testified as to the good character of the defendant and as to his being a quiet, peaceable and law abiding citizen, and that he had never before been in any trouble. There is some testimony that the witness Brown’s reputation for truth and veracity was bad.

After a careful study of this record we are of the opinion that the corroboration of the witness Brown is insufficient to support this conviction. No doubt the defendant was convicted by reason of the testimony of the officers as to the conversation that occurred in the jail as they testified. There was testimony that the witness Brown had arranged to have this conversation so that officers could hear the same and that he did most of the talking. These statements were highly detrimental to the defendant. Evidence obtained in this manner should be very carefully considered. The statement of the defendant was that he knew the conversation with the witness Brown, who had been let out of his cell so that he could talk with defendant, was being heard by the officers, and that he told the witness that he was not guilty and would not plead guilty thereto. The testimony that he would pay $500 to the witness Brown if he would plead guilty does not seem reasonable for the reason that defendant had no funds of any kind to pay.

By section 3071, Okla. Stats. 1931, 22 Okla. St. Ann. § 742, it is provided:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The construction of this statute has been before this court many times. It has been uniformly held that the terms of this statute are positive and peremptory, and that the corroborating evidence must tend in some degree to connect the defendant with the commission of the offense and that independent evidence merely consistent with the main story is not sufficient if it requires any part of the accomplice’s testimony to connect the defendant with the crime. In the case of Rogers v. State, 57 Okla. Cr. 294, 48 P. 2d 344, the court says (page 300) :

“There must be some evidence, which of itself, and without aid from the accomplice’s testimony, tends to connect the defendant with the offense committed.
“It is not sufficient corroboration to prove that the crime was committed in the manner described by the accomplice, but his testimony must be corroborated as to the particular defendant.
“It is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators.
“The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt. 1 Enc. of Ev., pp. 104, 105, 106, and 108, and cases cited.” Peck v. State, 50 Okla. Cr. 213, 297 P. 323; Stevenson v. State, 50 Okla. Cr. 295, 297 P. 328; Hicks v. State, 18 Okla. Cr. 718, 196 P. 144; State v. Roy Wilks, 17 Okla. Cr. 247, 187 P. 813; Weaver v. State, 58 Okla. Cr. 360, 53 P. 2d 696.

On page 302, 48 P. 2d on page 347, the court further says:

“The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty.”

We cannot read the record in this case and believe that the defendant should be sent to the reformatory upon the evidence offered. The jury who rendered the verdict refused to assess the punishment. They placed in their verdict this sentence:

“This being the first offense, we recommend leniency.”

We are of the opinion that the judgment and sentence should be set aside and the case reversed, and it is so ordered.

DOYLE, J., concurs. DAVENPORT, P. J., absent.


text:
    FERN C. BURROUGHS v. STATE.
    No. A-9532.
    Oct. 3, 1938.
    (84 P. 2d 42.)

      Squyres, Hunt & Gay, of Oklahoma City, for plaintiff in error.
    Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant and his attorneys of record, Squyres, Hunt & Gay, did on the 29th day of September, 1988, file in this case the following motion:

“Now comes the plaintiff in error, Fern C. Burroughs, and dismisses his appeal of this cause heretofore filed by him in this court.
“(Signed) O. K. Fern C. Burroughs,
“Plaintiff in Error.
“Squyres, Hunt & Gay,
“Attorneys for Plaintiff in Error.”

And the court, upon due consideration, was of the opinion that said motion should be sustained, and it is hereby ordered that said motion to dismiss the appeal in this case is sustained and said cause is hereby dismissed.

DOYLE, J., concurs. DAVENPORT, P. J., absent.


text:
    Ex parte LOUIS HANSEN.
    No. A-9568.
    Oct. 3, 1938.
    (83 P. 2d 205.)
    W. N. Redwine and J. M. Roberts, both of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

On behalf of Louis Hansen, a duly verified petition for the writ of habeas corpus was filed in this court on September 29th, 1938, alleging that petitioner is illegally restrained of his liberty and unlawfully imprisoned in the state penitentiary at McAlester, by Jess Dunn, warden.

The petition was thereupon presented to the court.

The respondent appearing by Sam H. Lattimore, Assistant Attorney General, interposed a demurrer thereto, citing Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37, in support thereof.

At the close of the hearing the court refused to issue the writ but ordered that a rule to show cause be entered and issued, why the writ of habeas corpus should not be awarded as prayed for. Said rule to show cause was made returnable on October 4th.

Counsel for petitioner have filed a motion to dismiss his application. Attached thereto is a statement signed by petitioner, in part as follows:

“I, the undersigned Louis Hansen, do hereby agree to waive any right I may have under my application for writ of habeas corpus filed in the Criminal Court of Appeals of Oklahoma, and agree to return to the state of Illinois with Mr. Ross Randolph, State Parole Agent of the State, and I hereby agree that Mr. Jess Dunn, Warden of the Oklahoma Penitentiary, and Mr. R. A. West, deputy warden, may deliver me to the aforesaid Mr. Ross Randolph, parole agent of the state of Illinois.
“And this is the authority of W. M. Redwine and J. M. Roberts to dismiss said application for habeas corpus now pending in said Criminal Court of Appeals.
“This is my free and voluntary act and for the purpose of returning to the state of Illinois, my attorneys are relieved of any further obligation. Said attorneys hereby agree to dismiss the aforesaid application for writ of habeas corpus now pending in said court; a copy of said dismissal to issue to the warden of the state penitentiary.”

The motion on the part of petitioner to dismiss is for the reasons stated sustained, and the rule to show cause is set aside. It is so ordered.

BAREFOOT, J., concurs.