text:
    GEORGE MEADOWS v. STATE.
    No. A-5406.
    Opinion Filed April 10, 1926.
    (244 Pac. 1119.)
    Leslie P. Ross, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Comanche county, January 24, George Meadows did sell a pint of whisky to one James Maddox. On the trial the jury found him guilty and fixed his punishment at a fine of $250 and imprisonment in the county jail for 90 days.

To reverse the judgment he appeals, and assigns as error that the evidence is insufficient to sustain the verdict; that the court erred in admitting incompetent evidence and in excluding competent evidence.

The state introduced but one witness, James Maddox, who testified that about 9 o’clock at night, on the day alleged, he stopped at the defendant’s grocery store on the southwest corner of Lawton and bought some gas. Against the defendant’s objection, he further testified: That, while he was there, his wife went up to the room and got a pint of whisky and brought it down. He was then asked: “Did you pay for it with a bill?” and answered, “I guess so; he gave me the change back for the gas.” That he did not remember how big the bill was but thinks the defendant took pay for the whisky.

On cross-examination, he stated that he had signed an affidavit to the effect that he had never bought any whisky from the defendant, George Meadows; that he had sworn to it before Judge Perkins. The affidavit was offered in evidence and permission asked to read it to the jury. State’s objection was sustained, and exception taken.

On redirect examination, he testified: Bob Johns was the only one that talked to him about this case. That he told Johns that he did not turn George Meadows in, and he did not want his case to come to trial, and asked him to talk to his wife. After that his wife told him to sign the affidavit. That Bob Johns would give her $25 and he signed the affidavit. This testimony was admitted over the defendant’s objection, and the defendant’s motion to strike was overruled.

On recross-examination, he was asked: “Do you know what it means to take an oath that you will tell the truth and nothing but the truth?” and answered “No, sir.”

The defendant offered to show on further cross-examination that this witness was arrested, and the officers turned him loose on an agreement that he would say that he bought whisky from George Meadows. State’s objection was sustained, and exception taken.

The state rested, and there was a motion by defendant for a directed verdict of acquittal in the form of a demurrer to the evidence which was overruled.

We think the motion for a directed verdict should have been sustained, on the ground that the evidence was insufficient to connect the defendant with the offense charged.

It further appears that the rulings of the court on the cross-examination of the state’s witness constituted error. The rule is well settled that the credibility of a witness may be impeached by proof that he has made statements relevant to the issues out of court, contrary to what he has testified to at the trial. I Greenleaf on Ev. (13th Ed.) 463.

For the reasons indicated, the judgment appealed from is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    H. L. GRIFFIN et al. v. STATE.
    No. A-5416.
    Opinion Filed April 10, 1926.
    (244 Pac. 821.)
    Mathers & Coakley, Thomas Norman, and Roland & Robinson, for plaintiffs in error.

      Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county on a charge of petit larceny and the defendant Hazel Fletcher fined $25 and sentenced to imprisonment in the county jail for a term of 30 days and the defendant H. L. Griifin fined $100 and sentenced to imprisonment in the county jail for a term of 30 days.

The case was tried in October, 1924, and the appeal lodged in this court February 22, Í925. No briefs have been filed and no appearance for oral argument made. Where an appeal is prosecuted from a conviction for a misdemeanor and no briefs in support of the appeal filed and no appearance for oral argument, the court will examine the record for jurisdictional errors, and, if none appear and the evidence reasonably supports the verdict, the judgment will be affirmed.

The case is affirmed.


author: BESSEY, P. J.

text:
    A. P. LOUT et al. v. STATE.
    No. A-5404.
    Opinion Filed April 10, 1926.
    (244 Pac. 818.)

      Bond, Melton & Melton, for plaintiffs in error.
    The Attorney General, and Houston B. Teehee and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiffs in error, A. P. Lout and Alvia Lovett, here designated the defendants, were jointly charged with the murder of A. A. Brooks. At the trial each was convicted of manslaughter in the first degree, and by the verdict of the jury the punishment of each was fixed at confinement in the penitentiary for a term of 15 years.

The evidence shows that the deceased, A. A. Brooks, was a man 72 years of age, who for some time prior to his death had lived alone on leased premises near the town of Pocassett, in Grady county. Here he and the defendant Alvia Lovett and the latter’s brother, Barney Lovett, operated a whisky still in a bar near the house in which Brooks was living. This still had been in operation for some months, and from time to time large quantities of whisky had been made, some of it being sold and some stored by the parties interested.

On the 22d day of May, 1924, the persons interested in operating this still learned that the officers had been informed of its existence and location, and that a search and seizure might follow. In order not to lose the whisky about the premises in different places, in casks and containers, defendant Lovett and the deceased Brooks hid these casks near an old straw stack in a pasture and in excavations in prairie dog towns near by. Lovett also dismantled the still and disposed of it in some manner not shown in the record.

All this was done after dark on the night of the 22d; the time required to hide the liquor and dispose of the still extending beyond midnight. Defendant Lovett then went to the home of the other defendant, A. P. Lout, some miles distant, arriving there about 2 o’clock in the morning of the 23d.

From this point on the evidence is somewhat conflicting, but there is evidence tending to show that Lovett told Lout what he had done, and asked Lout to go with him to the Brooks premises to get the balance of the whisky, or a portion of it, there hidden, and remove it, under an agreement that Lout should have a portion of the whisky so procured. Lout agreed to do this. Before starting, Lovett took Lout’s pistol from the foot of the bed where the latter had been sleeping and carried it with him. ,

The two men then proceeded to a point in the highway some distance from where the whisky had been hidden. They walked over to the hidden place, and Lovett handed the pistol to Lout, and proceeded to explore for the whisky that was underground, with an iron rod. The night was dark and cloudy, and, while Lovett was trying to locate the whisky, Lout sat or reclined near by. Presently some shots were fired from near the straw stack close by. Lovett immediately opened fire, firing two shots in the direction from whence he saw the flashes of fire from the gun first fired, and the two defendants immediately fled in different directions. At a distance of about ¡a mile from the spot where the shooting occurred the defendants met again, and together they returned in their car to the Lout home, arriving there at about daybreak.

On the following morning, the morning of the 24th, a neighbor boy discovered the body of Brooks lying at the scene of the shooting. An examination of the body disclosed that a bullet from a gun of large caliber had entered the body to the right of the spinal column, about four inches below the shoulder blade, and that it had passed diagonally through the body, making its exit below the left nipple.

The outline of the evidence as recited above is gleaned from the physical facts shown, from the testimony of a little girl who was spending the night at the Lout home the night of the killing, and from the testimony of the defendants and the written confession of Lovett.

It is conceded that Lout had no proprietary interest in this whisky, and Lovett claims that he had none; that the whisky they sought to remove belonged to the deceased, Brooks, individually. On the other hand, there is evidence supporting the state’s theory that Brooks and the Lovett brothers were jointly interested in the making of the whisky, and that they had from time to time, as the product came from the still, divided it among themselves, and that at the time of the homicide the defendants were attempting to steal the portion belonging to Brooks. The only ground urged for reversal of these convictions is the claim that the instructions to the jury did not correctly state the law applicable to the facts proved.

Instructions Nos. 9, 10, and 11 defined the law of self-defense as it applied to the defendant Lout in the event that the jury found that Lout knew nothing about Brooks’ interest in, or claim to, the whisky about to be removed, believing it to belong to defendant Lovett.

In instruction No. 13 the right of self-defense was defined, as it applied to both defendants, in the event that the jury found that they had conspired together to violate the law under the circumstances stated. This instruction was as follows:

“The court instructs the jury that, when two or more persons agree and confederate together to commit a crime under such circumstances as may, when tested by human experience, specifically result in the taking of human life, either in the execution or resistance of their unlawful plan, then each party to such common understanding, or conspiracy, will be held responsible for the consequences which might be reasonably expected to flow, and which do flow, from carrying into effect their unlawful combination, and from the taking of human life, if any, to accomplish the object of the conspiracy, even though such consequences were not specifically intended as a part of the original plan. So you are instructed, gentlemen, that, if you find and believe from the evidence in this case beyond a reasonable doubt that the defendants A. P. Lout and Alvia Lovett entered into a conspiracy to go and remove a certain quantity of whisky from the place where it was then hid or buried, to some other point, then the moving of the whisky from one point to another point in this state would be a misdemeanor, and, if in pursuance of said conspiracy or unlawful design they, or either of them, was armed with a pistol for the purpose of taking human life in order to prevent apprehension while carrying out their unlawful design or common purpose, or the taking of human life, if necessary, either in the execution or resistance of their unlawful design, and they or either of them, in carrying out or in furtherance of said unlawful design, did shoot and kill the deceased, Brooks, even though such consequence was not specifically intended as a part of the original plan, they cannot plead the right of self-defense herein, and each would be guilty of the crime of manslaughter in the first degree.”

The converse of the rule stated-in No. 13 was stated in No. 14 as follows:

“You are further instructed, gentlemen, that should you find and believe from the evidence in this case, or entertain a reasonable doubt therefrom, that the defendants A. P. Lout and Alvia Lovett went to the place of the homicide for the purpose of removing certain whisky which was the property of the defendant Alvia Lovett, which had been made on the premises of the deceased, A. A. Brooks, with his consent, then the defendant Lovett would have a right to go upon the premises of the deceased and take the defendant Lout with him for the purpose^ of removing the same; and, if you further find and believe from the evidence, or entertain a reasonable doubt therefrom, that the deceased A. A. Brooks assaulted the defendants, or either of them, with a pistol or other deadly weapon, whereupon the defendant A. P. Lout shot and killed the said deceased, in his own necessary self-defense, as in these instructions defined to you, then in that event the defendant (sic) would not be guilty, and you should so find.” (From the context it is apparent that the word “defendant” was used in a plural sense, meaning both defendants, and was so understood by the jury.)

This court will pay no attention to the dotting of an “i,” or the crossing of a “t,” or the omission of an “s,” where the meaning of the text is clear, as in this case.

Complaint is made of instruction No. 15, which is as follows:

“In this connection, however, you are instructed that should you find and believe from the evidence beyond doubt that the defendants Lout and Lovett went upon the deceased’s (A. A. Brooks’) premises for the purpose of stealing whisky, or other property belonging to the deceased, A. A. Brooks, then in that event the deceased, Brooks, would have a right to use such force as reasonably appeared to him at the time to be necessary to prevent the commission of said crime.”

It is urged that the expression “or other property” makes the instruction as a whole erroneous, for the reason that there is no evidence in the record supporting the theory that the defendants went on Brooks’ premises for any other purpose than to obtain whisky.

There is no evidence indicating that the defendants intended to steal or take possession of any property except whisky, unless the inference might be drawn that they would at the same time take the kegs or other containers in which it was found, or possibly materials to make whisky, or parts of the still which had not been disposed of. In any event, the expression “or other property” was harmless, and could in no way have influenced the jury to the prejudice of the defendants.

Defendants complain that instruction No. 13 is in conflict with instruction No. 9. This contention is without merit, because instruction No. 9 does not purport to state a complete rule of self-defense, as applied to the different interpretation of the facts which might be deduced from the evidence. Instructions Nos. 10, 11, and 13 also relate to the subject of self-defense, and must all be considered together. These instructions, individually as far as they go, and considered as a whole, are not misleading.

It is next urged that instruction No. 13 does not correctly state the law as applied to the facts, in that it announces an erroneous theory, to the effect that a trespasser about to commit a misdemeanor has no right to self-defense. This objection would have some merit if the instruction in fact so stated. But the court correctly stated the rule by qualifying clauses that the right to self-defense is denied to a trespasser where the trespass is committed under such circumstances as may, when tested by human experience, result in the taking of human life, and where the trespasser went armed upon the premises of another, in the night-time, for an unlawful purpose, with intent to kill in case such an emergency arose. Because of these and other qualifying clauses, the cases cited by defendants are not in point, and it would serve no good end to analyze and distinguish them.

The defendants further contend that instruction No. 15 is in conflict with the Eighteenth Amendment to the Constitution of the United States and the act of Congress known as the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138J et seq.) and with our own state Constitution, which provide that no property rights attach to liquor illegally possessed, such as might constitute a basis for larceny or robbery. The weight of authority is to the contrary. Hoback v. United States (C. C. A.) 284 F. 529; People v. Wilson, 131 N. E. 609, 298 Ill. 275; State v. Friedman, 120 A. 8, 98 N. J. Law, 577; People v. Otis, 139 N. E. 562, 235 N. Y. 421; State v. Schoonover, 211 P. 756, 122 Wash. 562; Arner v. State, 19 Okla. Cr. 23, 197 P. 710.

In People v. Otis, supra, it was said:

“The statute further provides that ‘no property rights shall exist’ in liquor illegally possessed. There can be no larceny of property not subject to ownership. How then, it is asked, may there be larceny of such liquor? If we give the broadest possible construction to these words there is no answer, for it must be conceded that, to enforce the recent amendment to the Constitution, Congress may declare that to steal liquor shall no longer be a crime. It might think it wise to license theft so as to discourage intoxication. We should not, however, readily impute to it such a design. Commonwealth v. Rourke, 10 Cush. (Mass.) 397. Certainly the earlier declaration of the same statute [section 3] that its provisions are to be ‘liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented’ gives no indication of such a purpose. To so construe the language of section 25 would be to encourage the transportation, distribution, and consumption of liquor by the thief.”

In Arner v. State, supra, it was said:

“Section 3620, Revised Laws 1910 [section 7021, Comp. Stat. 1921], providing, ‘there shall be no property rights of any kind whatsoever in any liquors, vessels, appliances, fixtures, bars, furniture and implements, kept or used for the purpose of violating any provisions of this chapter’ (prohibitory liquor laws), does not alter or change the inherent character of such articles as personal property.”
“Intoxicating liquor, possessing the inherent character of personal property, may be the ¡subject-matter of robbery, irrespective of the purpose for which it is kept or used.”
“It is not the policy of the law to encourage culpable defenses to criminal actions. It is the duty of this court to so construe the criminal laws of this state as to effectuate their purposes and give force and effect to the evident legislative intent. It is the business of the state, through its duly constituted peace officers, to bring such action as the law prescribes against contraband property and its users, and it is not the privilege of highwaymen to hold up at the point of a gun the possessors of contraband property and take it away from them by force, nor did the Legislature so intend by merely providing that such possessor should have no property rights in the property when unlawfully kept. Ample provision of law is made for the confiscation and taking of such contraband personal property, and it must be taken in the manner prescribed.”

From the defendants’ own testimony, the jury were justified in returning a verdict for manslaughter. Brooks was shot in the back — killed under circumstances which would have justified a conviction for murder. .

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    W. W. WHEAT v. STATE.
    No. A-5341.
    Opinion Filed April 10, 1926.
    (244 Pac. 821.)
    Wilkinson & Hudson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Pittsburg county, May 2, 1924, H. E. Wheat, W. W. Wheat, and G. W. Wheat did have in their possession about three gallons of whisky, with the unlawful intent to sell the same. A trial was had thereunder, and the jury returned a verdict finding the defendant, W. W. Wheat, guilty as charged, and fixing his punishment at a fine of $100 and confinement in the county jail for 60 days. From the judgment he appeals.

In support of the contention of counsel for appellant that the conviction should be reversed and a new trial ordered, numerous errors are assigned. As to the sufficiency of the evidence, we think there can be but little doubt. L. B. Owen, deputy sheriff, testified that about 10 o’clock on the day alleged he went from his home over the mountain to the Canadian river to see if some mash barrels located there had been filled, and saw three men going north through the brush; two of them he took to be G. W. Wheat, and his son, W. W. Wheat, appellant. The three men started to run. W. W. Wheat was carrying a sack on his shoulder, and be hallooed two or three times to him to stop, then shot up in the trees, and W. W. Wheat threw the sack against a rock and started to get through the wire fence, and he shot again. W. W. Wheat stopped, and he arrested him. The sack contained five broken half-gallon fruit jars, and one unbroken, full of whisky. He started with him to Scipio, and after going a little ways he said he wanted to rest, and he let him rest for about five minutes. Appellant remarked that he would never get out of there with him. They started along and appellant said, “I see somebody.’’ Then a gun fired; one shot struck his head, and one entered his shoulder. Then he saw G. W. Wheat behind a tree holding a shotgun, and he commenced shooting at him with his pistol, and G. W. shot at him again, and told appellant to run. Then he and G. W. agreed not to shoot any more, and he asked G. W. to give up, and G.W. told him he could not take him, so he started on with appellant to Scipio. After G. W. was arrested he asked him, “What did you shoot me for?” and G. W. said, “I was just crazy mad; that was not the boy’s whisky, it was my whisky. Six half gallon jars.” No objection was made or exception taken to this statement.

Will Anderson, sheriff, testified that when he arrested G. W. Wheat he asked him what he was going to do with the boys, and witness told him that he was going to take them in. Then the elder Wheat said the whisky that Owen got was his — that it did not belong to the boys.

As a witness in his own behalf, appellant, W. W. Wheat, testified that he lived on the Finley place, a mile southwest of his father’s place, and that morning went by his father’s place down to the river; that he did not see his father that morning until the shooting occurred; that two or three days before he met two Indians and contracted to buy from them a gallon of whisky and they were to meet him with the whisky. On meeting them one said he would go and get it; in a few minutes he ran back and said, “The law is down there.” Then Owen fired a couple of shots, the Indians ran off, and one of them threw away the sack that contained the whisky. That he called to Owen to stop shooting— that he was not going to run. That he never did have the whisky in his possession. That Owen arrested him, and they started for Scipio. After walking about an hour Owen raised his gun and fired, and he looked up and saw his father about 60 yards away. Owen fired a second shot; then his father shot Owen with a shotgun. Owen fired two more shots, and his father fired again. Owen fired again, then said to his father, “You have killed me, I want a doctor;” and his father said, “You have killed me, too.” Owen said, “You come with me;” and his father said, “No, I am not going with you,” and walked away. That his father had nothing to do with the whisky.

G. W. Wheat testified that he took his shotgun that morning and went up in the hills to shoot squirrels, and saw Owen and his son Bill. About that time Owen shot at him twice, one shot cut a part of his toe off; then he shot Owen, and Owen fired two more shots, and he fired at Owen again; then Owen asked him to go for a doctor; that he started for home, and Oiwen and the boy went on down the road. That he did not know anything about the whisky that Owen found, and had nothing to do with it. That he did not tell the sheriff that it was his whisky.

In the course of the trial appellant moved for a separate trial. The court overruled the motion. This ruling is assigned as error. It is urged that if appellant had been tried alone, the evidence as to the shooting affair would not have been competent.

Our Criminal Code provides:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.” Section 2695, C. S. 1921.

The exercise of the discretion here given to the trial court in granting or refusing a severance in a misdemeanor case is reviewable; but to make the same the subject of review, the case-made or bill of exceptions must show an application for a severance setting out some unusual and extraordinary condition or state of facts in connection with the case which would materially prejudice the rights of the appellant in a joint trial; and this must be supported by affidavits or oral testimony, and may be controverted by the state in the same way. In the absence of such showing on the part of the applicant, the trial court cannot know and is not required to anticipate that a situation will arise in the trial justifying a severance. The fact that the trial does subsequently develop such a situation is immaterial; and unless such application is filed and thus supported there is nothing before the court calling for the exercise of the discretion given it. Steen v. State, 4 Okla. 309, 111 P. 1097; Curzan v. State, 13 Okla. Cr. 71, 161 P. 1179; Murphy v. State, 13 Okla. Cr. 407, 164 P. 1000. The case-made before us dscloses no such application or showing. The application in this case appears to have been oral; no ground for it whatever was stated, and no showing of any kind or character was made.

It follows that the court did not.err in denying a severance.

It is contended for appellant that the court erred in admitting evidence of the shooting and of the acts and statements of appellant’s father, his codefendant, with reference to the shooting. The testimony objected to was admitted by the court under the theory of the state that appellant and his codefendants were confederates in the commission of the offense charged, and that after appellant’s arrest his father armed himself with a shotgun and was attempting to rescue appellant when the shooting occurred.

The general rule is familiar that, where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance or in prosecution of. the common design for which they combine. The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all. It is equally well stated that acts and declarations of a conspirator after the offense is committed may be received against the defendant making them, but not against his codefendants. The defendants did not severally object to the admission of this testimony; only a general objection in behalf of all the defendants was interposed.

The evidence objected to was competent and admissible against appellant’s codefendant, and it appears there was no specific objection on his part, and the court was not asked to instruct the jury limiting the evidence only to the codefendant against whom it was admissible. Thus it appears from the record that the question argued was not saved by proper objection, exception, or motion.

It is also contended that the county attorney, in his statement of the case to the jury and during his argument, made use of inflammatory language prejudicial to appellant. It is affirmatively shown by the record that no objection was made to the opening statement at the time it was made. It has been repeatedly held that questions of like character will not be reviewed by this court unless objection is made and exception is taken in the trial court. The remarks objected to in the argument we do not think prejudiced appellant’s case. The argument is not set forth in the record, and only two objections made are stated.

Finding the evidence sufficient and no prejudicial error of law occurring on the trial, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    ALFRED DAVIS et al. v. STATE.
    No. A-5370.
    Opinion Filed March 27, 1926.
    Rehearing Denied April 10, 1926.
    (244 Pac. 824.)

      Thos. Norman, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county upon a charge of having possession of whisky wtih intent to sell, and punishment of defendants Alfred Davis and Lon McMillan fixed at a fine of $250 and 90 days in the county jail, and that of the defendant Wesley Davis at a fine of $50 and 30 days in the county jail.

The only assignment of error argued is that the evidence is insufficient to sustain the judgment. Briefly, the evidence for the state is that of two officers, who testify that they were watching the premises of the elder Davis and saw the defendants Alfred Davis and Lon McMillan procure a number of bottles, apparently 3 or 4 in each hand, all of which were brown except one, which was clear glass. These bottles they put in a car and drove away. Later they returned, and, as they approached the house, ran the car upon a stump and bent an axle or radius rod. At that time the officers came up, and the defendants Alfred Davis and McMillan took the car away to be repaired. The officers went about 100 yards in the direction from which the car came and found 11 pints of whisky in bottles covered with leaves, all of which were brown except one clear bottle. Tracks were around, appearing to have been recently made. No bottles were in the car. There were some other slight circumstances. The testimony of the defendants Alfred Davis and McMillan appears to be somewhat evasive.

The evidence as to the defendants Alfred Davis and Lon McMillan is sufficient to sustain the verdict and as to the defendant Wesley Davis it is insufficient.

The case is reversed as to the defendant Wesley Davis and affirmed as to defendants Alfred Davis and Lon McMillan.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY, P. IJ.

text:
    A. J. BABCOCK et al. v. STATE.
    No. A-5395.
    Opinion Filed March 27, 1926.
    Rehearing Denied April 10, 1926.
    (244 Pac. 824.)
    Thomas Norman, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. IJ.

The conviction of these three defendants rests largely upon the testimony and extrajudicial admissions of Jack Pierce, an alleged accomplice. In December, 1923, Pierce, a boy 19 years of age, was employed by defendant Babcock as a farm hand, and, while so employed, learned that there was a still in a ravine on land adjoining a field belonging to his employer. In the latter part of January, 1924, Pierce again went to work for Babcock, plowing in a field near where this still was located, and not far from some ricks of cord-wood. Babcock told Pierce that someone had been stealing cordwood from him, and that if he saw any stranger going in that direction to warn him (Babcock). When the officers approached the place, Pierce left his plow, and went to Babcock’s house, and notified him. As Pierce returned, the officers took charge of him, and went to where the still was. At this time Pierce made statements to the officers implicating defendants Russell and Doggett. As they returned through the field, the officers, found Babcock plowing with the same plow and team that Pierce had been using before going to the Babcock house. The officers found the still in operation, but no one was found there in charge of it. Acting upon statements made by Pierce, the officers arrested Babcock, and later the two other defendants.

It was the theory of the state that Pierce was an accomplice — a coconspirator with the three defendants. The facts shown do not sustain this theory. The test as to whether one is an accomplice is whether the charge could be sustained as to him individually. If it can, he is an accomplice; otherwise not. Applying that test, Pierce was not an accomplice. Pierce suspected that Babcock was interested in the still, and that he was more concerned in that than he was in protecting his wood pile near by, but it is not shown that he had any positive knowledge that the still was then being operated, or that Babcock or the other defendants owned it. Under such state of facts, extrajudicial admissions of statements by Pierce, implicating defendants Russell and Doggett, could not bind them, and there is little other evidence connecting Doggett or Russell with the still or its operation. The testimony of Pierce and the physical facts and circumstances shown indicate that Babcock was interested in operating the still.

The judgment of the trial court is affirmed as to defendant Babcock, but reversed as to Russell and Doggett.

DOYLE and EDWARDS, JJ., concur.


author: BESSEY, P. 'J.

text:
    J. C. BARKSDALE et al. v. STATE.
    No. A-5428.
    Opinion Filed April 10, 1926.
    (244 Pac. 828.)
    Champion, Champion & George, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. 'J.

These three defendants, farmer neighbors, were found about 8 o’clock of an April morning, reclining and sitting in the woods. Certain peace officers, who came upon them so, found under a coat belonging to one of them a jar said to contain whisky. Some three-fourths of a mile away the officers found a still, which had apparently been in recent operation.

It would appear, from all the evidence, that the liquor found was whisky, but there was no evidence of quantity such as would raise the statutory presumption of intent to sell. The evidence indicates, that the three men had assembled there for a social drink. The state produced no evidence indicating which of them had possession of the whisky, or whether it was in their joint possession, and the evidence of illegal intent on the part of any of them was insufficient.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    ZELMA BROWN v. STATE.
    No. A-5432.
    Opinion Filed March 31, 1926.
    Rehearing Denied April 10, 1926.
    (244 Pac. 836.)
    Johnston & Paddock, for plaintiff in error.
    George F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Zelma Brown, was prosecuted by information in the district court of Noble county for the murder of Tommy Lewis, alleged to have been committed June 16, 1924, by shooting him with a pistol. The cause came on for trial September 12, 1924, and resulted in a conviction of manslaughter in the first degree, the jury fixing his punishment at imprisonment in the penitentiary for the term of 4 years. He has appealed from the judgment rendered on the verdict, and assigns as error that the verdict is not sustained by sufficient evidence; that it is contrary to law, and therefore the court erred in overruling the motion for a new , trial.

The facts and circumstances preceding the homicide are not greatly in dispute. It appears that appellant, his wife, Roy Sheldon and his wife, Ollie Taylor, Irwin Hays, and Tommy Lewis, the deceased, all colored, were at the home of appellant in the city of Perry, and there indulged more or less in drinking choc beer. About 5 o’clock p. m. appellant left his house for the place of his employment, a local hotel; the rest of the party remaining. In the course of the conviviality, a controversy arose between appellant’s wife and Tommy Lewis. She called him “a damn liar,” and he slapped her face. Sheldon and Taylor separated the combatants. Appellant’s wife left immediately to report to her husband that Lewis had slapped her. After hearing her story, appellant left his place of employment, and in the meantime Sheldon with his wife and baby and Lewis left for Sheldon’s home. Appellant met them qn the way and asked Sheldon why Tommy Lewis had slapped his wife, to which Lewis responded,“Don’t ask him; he don’t know about this; I will tell you” — to which appellant replied, “I will see you after a while.” Appellant went on, and Sheldon and his wife together with Lewis went to their home. Appellant went to his home, and, not finding his wife there, armed himself with a pistol and started to go to the home of his father-in-law. In going there he had to pass Sheldon’s house; when in front of Sheldon’s he turned in and went up to Sheldon’s front door, which was open with the screen door closed. He was carrying a pistol in his hand and swinging it by his side. A few words were spoken, and the shooting commenced. Tommy Lewis was found lying on the floor with a gunshot wound in his back, from the effects of which he died the following day.

Roy Sheldon, the first witness for the state, testified: That his home is a two-room house, facing east, with a door and a window facing the street. That after the difficulty between Mrs. Zelma Brown and Tommy Lewis, and after she had gone to tell her husband, he told Tommy Lewis the best thing for him to do was to go, and not be there. That on the way home he met Zelma, who asked him, “What did my wife do to Tommy to cause him to slap her?” and Tommy said, “Don’t ask him; he don’t know about this; I will tell you.” Zelma said, “I will see you after a while,” and walked • on. That he and his wife arid Tommy went on to his house; it was then between 8 and 9 o’clock. That he ,'sat down on the side of the bed inside the door, holding his baby, and saw Zelma Brown walking towards the door with a six-shooter pistol in his right hand, down to the side, swinging it like, and he came up to the door and said, “Roy, my wife tells me that you know all about Tommy slapping her.” Tommy walked to the door and answered him, and he said, “No need of asking Roy; he don’t know anything about it. I can tell you how it was.” Zelma Brown pulled the screen door open, and said, “If you haven’t got nothing, you ought to have something.” Then they both whipped their guns up together, and the shooting commenced. In just a few seconds, as soon- as the smoke kind of cleared, he ran out the screen door and saw Zelma Brown fire a shot through the window, and ran away. That the bullet passed through the screen and shattered the window pane.

The testimony of appellant in his own behalf is as follows:

“I heard the Frisco train, and I says, ‘There is that train; I am due at the hotel; stay as long as you want to,’ and I struck a run so I could meet the bus. My wife came up there about 9 o’clock. She was crying and said that Tommy Lewis hit her. I told her to go on home, and I would see about it. She left. I left immediately after she left and met Roy Sheldon, his wife, and Tommy Lewis coming along by Mr. Thompson’s. I spoke to Roy and asked him how come Tommy to hit my wife. Roy said he didn’t know. Tommy said, ‘Don’t asked him, ask me.’ I said ‘That’s all right.’ I went on home to get my wife and find out the straight of it. My wife was not at home. I thought probably she had gone over toiler father’s, and I starts over there. I heard some one talking in Roy’s house. It was dark. I walked up to the screen door and asked Roy, and, before he could say anything, Tommy said, ‘Come in,’ and he said. ‘If you haven’t got something, you ought to have,’ and commenced shooting. He shot at me twice. I got down, from the screen door, between the door and the window, I was afraid to pass the window and afraid to pass the door. There were windows all around the house. I saw through the window, and I thought I discerned a bulk, and I shot through the window. I was in hopes that I had shot him through the legs, because I didn’t want to kill anybody. When I went to my house for my wife I got the gun out of my trunk. I was afraid of Tommy, and took the gun along for protection.”

He also testified to his personal knowledge of the violent and dangerous disposition of the deceased.

The testimony covers more than 800 pages, but to further detail it would subserve no useful purpose.

Our Penal Code provides that homicide is justifiable when committed by any person in resisting any attempt to murder such person or to commit any felony upon him, or when committed in the lawful defense of such person, when there is a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, or imminent danger of such design being accomplished. Section 1754, C. S. 1921.

It is argued that the mere fact that appellant in expectation of an attack, armed himself, and knowingly went into the vicinity of deceased, who had threatened his life, did not deprive him of the right of self-defense; that, if the mere expectation of an assault from an adversary is to deprive the expectant of the right of self-defense merely because he goes armed in the vicinity of his enemy or goes out prepared upon the highway where he is likely at any moment to meet him, then he has armed himself in vain, and self-defense ceases whenever expectation begins.

Assuming that to be a correct statement of the law, it does not apply to the proof in this case. Here it appears that appellant armed himself, sought the deceased, and made a hostile demonstration with a gun, and announced his purpose to use it, and a few minutes later shot his victim through a window.

We understand the law to be that, if one who has taken the life of an assailant was himself in the wrong, he cannot plead self-defense, but the wrong which will • preclude him from making that defense must relate to the assault in resistance of which the assailant was killed. If, after appellant’s wife informed appellant that deceased had slapped her, he armed himself with a pistol and sought the deceased, with a view of provoking a difficulty, or with the intent of having an affray, and the deceased assaulted him, his plea of self-defense would be of no avail, for the law will not hold him guiltless who, by seeking a combat and continuing therein, brings upon himself the necessity of killing his fellowman.

Upon the undisputed facts, and according to his own statement on the witness stand, appellant is at least guilty of manslaughter in the first degree.

The trial was exceptionally free from error; the instructions fairly presented the law oí th? case. Appellant, from all the record discloses, had a fair trial. It follows from what has been said that the verdict was as favorable to appellant as the law and the testimony warranted.

The judgment appealed from herein is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    L. O. SCRUGGS v. STATE.
    No. A-5211.
    Opinion Filed March 29, 1926.
    (244 Pac. 838.)

      Wright & Gill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter .called defendant, was convicted in the district court of 'Oklahoma county on a charge of having illegal possession of narcotics, and was sentenced to serve a term of three years in the state penitentiary and to pay a fine of $500. The evidence is largely circumstantial; its sufficiency. to sustain the verdict and judgment is not questioned. It is unnecessary to recite the facts proven. 'Three assignments of error are argued for the reversal of the judgment: First, that the court erred in giving instruction No. 7. Second, that the jury at the time of making a view of the premises received evidence out of court. Third, that the verdict was received by a judge other than the one before whom the case was tried.

These assignments will be considered in the order presented. The first assignment is predicated upon the court’s charge as follows:

“Should you find the defendant guilty of the crime charged against him it will be your duty to fix the punishment therefor, which shall be a fine of not less than $500 nor more than $5,000, and by imprisonment in the .state penitentiary for not less than one year nor more than seven.”

This instruction is erroneous in naming the minimum punishment at both fine and imprisonment. The punishment fixed, by the statute (section 8888, Comp. St. 1921), under which the prosecution was had, is ambiguous, but this court considering that statute in the case of Ex parte Clarke, 30 Okla. Cr. 259, 236 P. 66, held that the punishment of fine or imprisonment is in the disjunctive, and that either a fine or imprisonment or both might be imposed. However, the jury here by their verdict fixed the punishment at three years in the penitentiary and assessed the minimum fine, clearly evidencing that it was their intention that defendant should be sentenced to at least three years in the penitentiary. We cannot say, however, that if they had been correctly instructed they might not have omitted to assess any fine. The judgment should therefore be modified by remitting the entire fine assessed.

Upon the second assignment it appears that after-the jury had retired to consider their verdict they were brought into court, and the court stated that he understood they desired to view the house where the box introduced in evidence was said to have been found. The jurors answered that they did. It was then agreed by counsel for the state and the defendant that such view might be made. The court admonished them correctly, and one of the attorneys for defendant and the assistant county attorney with two bailiffs went with the jury. They viewed the premises and returned to their jury room, and soon after agreed upon a verdict.

In the motion for a new trial the ninth ground is that the jury received evidence out of court. The motion is supported by affidavit of one of the attorneys for defendant, the principal part of which is as follo.ws:

“* * * Affiant, in company with H. T. Tumilty, assistant county attorney of Oklahoma county, went with the jury in said case to the premises located on the southwest corner of the intersection of Grand and Central avenue, Oklahoma City, Oklahoma, and there was pointed out to the jury the house in which the officer, Brigman, testified he was concealed immediately prior to the arrest of the defendant on August 19, 1923; that there was a. woman in the yard of said house, and that the bailiff in charge of the jury asked her some questions out of the hearing of the jury, and she answered in a loud voice in the hearing of the entire jury. ‘Yes, I live here, and I will show you right where the officer sat by the window’; that-'ithe assistant county attorney then informed said woman that she must not talk or make any comment in the presence of the jury, but that she went into said house with said jury and in the presence of said jury stated to some man in the house, ‘This is the jury that is trying the negroes caught here last summer,’ or words in substance to that effect, and further stated to the jury, ‘This is the room’; and later when one juror mentioned to another juror that they had better ascertain the present location of the telephone in said house, that said woman picked up a telephone in a little hallway and opened a door and set it around through the door on a little stand in another room, and stated, ‘Here is where the telephone was setting, I kept it setting right on this little stand’; that other statements were made by said woman in the presence of said jury, the exact nature of which affiant does not recall. * * *”

In addition, oral evidence was taken on the motion in effect about as set out in the affidavit. No objection was made to the proceeding until motion for a new trial was filed. Section 2714, Comp. St. 1921, is as follows:

“When in the opinion of the court, it is proper that the jury should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.”

Under this statute the court was authorized to per-mit the jury under the restrictions therein named to view the place. This statute or one of similar import is a part of the law of many states, and under it it is generally held that the jury should hold no communication with others while taking the view of the place pointed out by persons authorized to do so. It is improper to take testimony while making a view, and persons present should not be permitted to explain the locus in quo. 16 C. J. 827.

The Supreme Court of the territory in considering this statute (section 5222, Oklahoma Statutes of 1893), in the case of Hays v. Territory, 7 Okla. 15, 54 P. 300, went into the question somewhat fully, and in an opinion by Burwell, J., reversed the case, where evidence was taken at the place of view. There, however, the court, over the objection of the defendant, compelled him to accompany the jury, the court, and court reporter, and the court took the evidence of a witness at the place of homicide ; to all of which exceptions were saved at the time. This court in the case of Starr v. State, 5 Okla. Cr. 440, 115 P. 356, considered, at length, the authorities upon the matter of view by the jury, and, while the question of a statement made by any outside person was not in that case, held in effect that the statute is not repugnant to the Bill of Rights conferring upon an accused the right to be confronted with the witnesses against him, but that it gives an accused the privilege of waiving such constitutional right. We do not deem it necessary to again review the authorities. The defendant here agreed that the jury should view the place. He made no request to accompany them, and agreed that one of his counsel with one of the counsel for the state should accompany the jury. No objection to any proceeding had was made until after the verdict was returned. The statement of the person shown to have been made at the place of view was improper, but it was of a trivial character, harmless, and does not require a reversal.

Lastly, it was contended that there was error in the proceedings in that the case was tried before Hon. C. L. Price, district judge, and that by agreement of the state and defendant, expressly given, the verdict was received by Hon. George W. Clark, another judge of said court, citing in support of this contention: 16 C. J. 1178; In re Patzwald, 5 Okla. 78, 50 P. 139; Cochran v. State, 4 Okla. Cr. 379, 111 P. 974; Wright v. State, 7 Okla. Cr. 280, 123 P. 434; Stites v. State, 9 Okla. 596, 132 P. 822; Tunnell v. State, 24 Okla. Cr. 176, 216 P. 951; Allen v. State, 13 Okla. Cr. 533, 165 P. 745, L. R. A. 1917E, 1085.

In none of the cases cited is the question here directly determined. It is not absolutely mandatory that the judge who tried the case be the judge who receives the verdict. The judge who tried the case should receive the verdict, but the receiving of the verdict by another judge of the same court, with the express consent of defendant, is a waiver of the irregularity of the proceeding. In the case of Tillman v. State (Fla.) 19 Ann. Cas. 94, it is said:

“An objection to the jurisdiction of a special or substitute de facto judge may be waived either by the consent of the parties, or by proceeding in the cause, before such judge, without making objection to his jurisdiction.”

This is supported by decisions from a great many of the states.

In the case of State v. Holmes, 40 P. 735, 12 Wash. 169, it was held:

One “knowing the ineligibility of the judge who tries his case, and yet submitting himself to the jurisdiction, being ready to avail himself of the action of the court if the verdict should be in his favor, he should not, in justice, be permitted to object to such jurisdiction when it eventuates that the verdict is against him. Such a practice would tend to defeat justice, rather than to secure to the defendant his substantial rights.”

See, also, Ellington v. State, 7 Okla. Cr. 252, 123 P. 186.

Upon the consideration of the entire record we find no error requiring a reversal. The judgment will be modified by remitting the fine of $500 assessed; otherwise the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    WALKER DAVIS v. STATE.
    No. A-6052.
    Opinion Filed April 10, 1926.
    (245 Pac. 1114.)
    E. I. O’Reilly, for plaintiff in error.
   PER CURIAM.

Upon motion of E. I. O’Reilly, attorney of record for the plaintiff in error, Walker Davis, and a showing that plaintiff in error has died since filing the appeal herein, the appeal is dismissed.


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    DAN MILLER et al. v. STATE.
    No. A-5371.
    Opinion Filed April 10, 1926.
    (245 Pac. 68.)

      Mathers & Coaldey and Thomas Norman, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county on a charge of having possession of intoxicating liquor with the intent to sell, and each sentenced to pay a fine of $500 and six months in the county jail.

The information charges the possession of wine, and the argument is made that there is no proof that wine is intoxicating. The Constitution of this state in reference to prohibition in designating intoxicating liquor includes beer, ale, and wine. There is nothing in the contention that, where wine is alleged and proven, its intoxicating character must also be proven. The courts take judicial notice that these named beverages are intoxicating without proof. Markinson v. State, 2 Okla. Cr. 323, 101 P. 353; Peretto v. State, 31 Okla. Cr. 319, 238 P. 870.

It is further contended that the court erred in admitting evidence obtained by an illegal- search warrant, and that the search warrant was issued upon an insufficient affidavit made on information and belief, and that neither the affidavit nor the warrant sufficiently describe the place to be searched. Sec. 30, Bill of Rights, in part is:

“* * * ^nd no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly rs may be the place to be searched and the person or thing to be seized.”

The affidavit for search warrant, omitting the caption and jurat, is as follows:

“J. W. Ginn, being duly sworn, says that Dan Miller, on the 31st day of August, A. D., 1924, in the county of Carter and state of Oklahoma, did then and there unlawfully have in his possession, with intent to sell or otherwise dispose of the same, in violation of law, certain intoxicating liquor, to wit, choc beer and grape wine, and the property of the said defendant, and that he, the said J. W. Ginn, suspects that the said wine property is concealed in a certain barn owned by Dan Miller.
“J. W. Ginn.”

If we concede that the statement of possession is sufficient as stating a fact and not a conclusion, the location of the claimed intoxicants does not even rise to the dignity of information and belief, but states a mere suspicion ; it being “the said J. W. Ginn, ‘suspects’ that said wine property is concealed in a certain barn.” That the intoxicants are located in such barn is not averred, nor are facts offered from which the magistrate could judicially so find. The search warrant does attempt to be more definite, but there is no basis for inserting in a search warrant matters in addition and beyond those stated in the affidavit. The statute (section 7009) provides that the search warrant shall command a search of the premises described and designated. The warrant may not command the search of other or different premises than those described and designated in the affidavit. It is evident that it was the intention of framers of the Constitution and the lawmakers to limit the right of search to places and premises where a proper affidavit showing probable cause was filed, particularly describing the premises to be searched. The affidavit is not sufficient either as showing probable cause to believe mtoxicants were in the barn attempted to be designated nor in the description or location of the bam itself. The evidence obtained by said search was improperly admitted, and requires reversal.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


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    SADIE FOSSETT v. STATE.
    No. A-6044.
    Opinion Filed April 10, 1926.
    (245 Pac. 668.)

      Morris & Tant, for plaintiff in error.
    John Frank Martin, Bliss Kelly, and R. E. Wood, for the City.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged under a city ordinance, in the municipal court of Oklahoma City, with the offense of vagrancy, was convicted and sentenced to pay a fine of $19 and costs amounting to $1. _ Within ten days she filed an appeal bond, and the record was properly sent to the county court. The case came on for hearing in the county court, and upon motion of the municipal counselor the appeal was there dismissed, for the reason that no written notice or demand had been given by defendant in the court below. The record was properly preserved, and the case duly brought to this court by appeal.

There is presented then for our determination this question: Is it necessary for a defendant, in order to perfect an appeal from the municipal court of Oklahoma City to the county court to file in the municipal court a written demand for such appeal?

Oklahoma City is operating under a commission form of government, with a charter drawn and adopted as provided by section 3A, art. 18, of the Constitution. Section 30 of the charter provides the manner of appeal from conviction in the municipal court:

"30. All persons who shall be accused or informed against, tried and convicted in the municipal court are hereby granted the right of appeal within ten days to the county court of Oklahoma county, where a trial in said county court shall be accorded them, de novo, and, in order to perfect such appeal, the party intending to appeal from the judgment of the municipal court or judge shall within said ten days file with and cause to be approved by said municipal court or judge an appeal bond in a sum to be fixed by the court, not less than fifty dollars, nor more than two hundred dollars in any one case, conditioned,” etc.

Section 4508, Comp. Stat. 1921, provides that the charter shall prevail where there is a conflict between the charter .and the laws of the state except as to general laws. It reads:

“When a charter for any city of this state shall have been framed, adopted and approved according to the provisions of this article, and any provisions of such charter shall be in conflict with any law or laws relating to cities in force at the time of the adoption and approval of such charter, the provisions of such charter shall prevail and be in full force, * * * and shall operate as a repeal or suspension of such state law or laws to the extent of such conflict; and such state law or laws shall not thereafter be operative in so far as they are in conflict with such charter: Provided, that such charter shall be consistent with and subject to the provisions of the Constitution, and not in conflict with the provisions of the Constitution, and laws relating to the exercise of the initiative and referendum, and other general laws of the state not relative to cities of the ’first class.”

The Constitution (section 3A, art. 18) provides that the charter shall not be in conflict with the Constitution and the statutes of the state, and it is held that, where charter provisions conflict with the general laws of the state in matters purely municipal, the charter shall supersede the laws of the state in conflict therewith. Walton v. Donnelly, 83 Okla. 283, 201 P. 367; State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826, Ann. Cas. 1918B, 139; Mitchell v. Carter, 81 Okla. 592, 122 P. 691; Lackey v. Grant, 29 Okla. 255, 116 P. 913; Owen v. Tulsa, 27 Okla. 264, 111 P. 320.

On the other hand, it is held that, where the charter provisions conflict with the general laws of the state in matters not purely municipal, the charter provision must give way, and the general laws of the §tate will control. State ex rel. Burns v. Linn, supra; State v. Cummings, 47 Okla. 44, 147 P. 161; Board of Education v. Best, 26 Okla. 366, 109 P. 563; Buchanan v. State, 30 Okla. Cr. 362, 236 P. 903; City of Sapulpa v. Land, 101 Okla. 22, 35 A. L. R. 872, 223 P. 640; Oklahoma News Co. v. Ryan, 101 Okla. 151, 224 P. 969.

It is not easy to determine in every case the difference between things which are purely municipal and those which are of general concern, as in some instances the one may inperceptibly merge into the other. In the matter of speed limits, fire limits, fire departments, building construction, sanitary regulations, and such similar things as are clearly of municipal concern only are undoubtedly within the exclusive authority of a city, but in the matter of appeals in criminal cases, where the accused has constitutional and statutory rights, the general law must control. Certainly such charter could not provide that, from convictions in the municipal court for offenses against the city ordinance, appeals must be taken to the district court or to the Criminal Court of Appeals. But section 4653, Comp. Stat. 1921, controls, and the appeal must be to the county court and in the manner provided by the general laws of the state. We are clearly of the opinion that the general provisions of the statute shall govern in the matter of procedure and method of appeal from the municipal court to the county court.

The defendant further argues that, in case this court should hold that the procedure is governed by the general law, there is a sufficient compliance with its provisions by a defendant filing with the municipal court her appeal bond, reciting that she desires to appeal from said judgment to the county court. The provision of the statute providing for notice of appeal (section 4654, Comp. St. 1921) evidently was enacted so that a defendant who was not able to execute an appeal bond might appeal. The appeal was complete upon filing the demand, although the judgment was not stayed unless an appeal bond was filed within ten days. Under the statute as it existed prior to the amendment by section 3, c. 127, Session Laws 1917, appeals could be taken only by filing an appeal bond. The amendment of 1917 gave a right of appeal without a bond by filing a written demand.

We perceive no reason why the demand may not be incorporated as a part of the appeal bond. The word “demand” is defined as “to ask,” “to claim,” etc. “Desire” is defined as “to ask,” “request,” etc. The terms of the appeal bond sufficiently satisfy the requirements of the statute.

The case is reversed and remanded, with instructions to the' lower court to set aside its order of dismissal.

BESSEY, P. J., and DOYLE, J., concur.


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    JEFF TOLBERT et al. v. STATE.
    No. A-4947.
    Opinion Filed April 16, 1926.
    (245 Pac. 659.)

      M. D. Hartsell, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, Jeff Tolbert and, Charles McArthur, hereinafter called defendants, were convicted in the county court of Muskogee county on a charge of transporting intoxicating liquor, and each sentenced to pay a fine of $250, and to serve a term of 90 days in the county jail.

An examination of the record discloses that about 4:30 a. m. of the night of the 30th day of August, 1923, certain officers of Muskogee county, upon information received, went upon the public highway about four miles from Muskogee, and attempted to stop a car driven by the defendant Tolbert, in which was his codefendant McArthur and two other persons named Sherman Williams and Earl Hickerson. The car of the defendant refused to stop at the hail of the officers, and they pursued it, and twice attempted to pass, but were crowded off of the road by the defendant’s car. The testimony is that they then fired at the casings, and some of the occupants of defendant’s car stuck their heads out, and the officers thereupon fired at them and shot Sherman Williams and Charlie McArthur. It is not disclosed in the record, but stated in the briefs, that Sherman Williams later died from the wounds received. The defendant’s car then stopped, and the officers came up and arrested the occupants, and searched the car, and found a gallon container which had been overturned, but which still contained about a half pint of whisky. In the back of the car they found a still. The defendant testified that about 10 o’clock on the night in question (the arrest took place about 4:30) he, with McArthur, went some miles in the country to figure on a job of carpenter work. In returning to Muskogee they overtook Williams and Hickerson carrying some bulky object in a sack, and permitted them to put it in the car and ride with them. The bulky object was the still in question. The defendant disclaimed any interest in it or knowledge that it was a still. They explained the long delay from the time they went out to see about the job of carpenter work and the time of the arrest by stating that they had tire trouble which occasioned the delay. The defendants present various assignments of error.

The defendants first complain that, since they were jointly charged with Sherman Williams and Earl'Hickerson, and were tried without Williams and Hickerson being present, and without any application for severance by either the state or the defendants having been made, the court exceeded its authority to their injury, citing Payne v. State, 10 Okla. Cr. 314, 136 P. 201. That case is not 'authority for the contention here made. That was a prosecution on a charge of felony, and without any application for order of severance, and over his objection, the defendant Payne was separately tried. This case is a prosecution for a misdemeanor, and, even if an objection on account of the separate trial would have availed, the defendants made no such objection. The record does show that, after the jury had been impaneled and sworn, and the county attorney was reading the information, the defendants’ attorney objected, for the reason that the codefendants were not present and available as witnesses, but not on the ground that they were not being jointly tried. Section 2695, Comp. Stat. 1921, governs. It is:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.”

Under this section it is clear that in misdemeanor cases the trial court, where more than one defendant is charged, may permit or require the trial to be separate or joint, in its discretion.

Upon the second assignment, i. e., the insufficiency of the evidence, it is argued that the defendants, by their evidence, fully explained the presence of the whisky and the still in the car at the time of the arrest, and that under all the circumstances their evidence is more credible than that of the witnesses for the state. This court cannot weigh and determine the credibility of the witnesses; that is a matter exclusively within the province of the jury, who see and observe the witnesses and their appearance and demeanor on the stand; and, where there is evidence which, if believed, supports the verdict, this court is not at liberty to set it aside for insufficiency.

The third assignment is directed to certain items' of evidence of the state as incompetent. This, in part, is the evidence of the officers, that they were upon the highway looking for the ear in which defendants were driving, in response to information received of the commission of some crime, or of some trouble upon the highway. The nature of the crime reported or the details were not brought out, and the bare fact that they were upon the highway in response to information is in nowise prejudicial. This assignment also is in part directed to testimony of statements made by Sherman Williams and others of those in the oar of defendant at the time of the arrest. There was evidence that defendants and Williams and Hickerson were acting together. The statement of any one of them in the pursuit of the common design until it was fully accomplished was competent, particularly so where the statement was made in the presence of all. There was sufficient evidence that the unlawful act had not been completed at the time the statements were made. It was not erroneous under the circumstances shown to admit them. It is also urged that this evidence tends to prove the commission of some other offense than that of transporting- intoxicating liquor. But the statements made were all -a part of the same transaction, and formed a part of the res gestae, and tend to shed light on the charge for which the defendants were on trial, and that they might incidentally show the commission of some other offense does not render them inadmissible.

Complaint is made that the court erred in excluding testimony of conversations between defendants and Williams and Hickerson after they got in the car. The following appears in the record:

“Q. Did you at any time see or notice or take any particular notice of what was in the sack? A. No, sir; I didn’t get out.
“Q. What was said between you and Williams and the other boys, if anything, after they got in the car coming up to the place where the officers were?
“County Attorney: Now, your honor, we object to that. It is hearsay of the purest kind.
“The Court: Sustained.
“Mr. Hartsell: Exceptions.”

This was not followed by any offer of proof, and we are not informed whether anything was said, or, if there was, that it was material. This is the only exclusion of evidence pointed out in the record, and the error is not properly preserved for review in this court. Warren v. State, 6 Okla. Cr. 2, 115 P. 812, 84 L. R. A. (N. S.) 1121; Stouse et al. v. State, 6 Okla. Cr. 415, 119 P. 271; White v. State, 4 Okla. Cr. 144, 111 P. 1010.

Upon the assignment of error charging misconduct of the county attorney, it is contended that the cross-examination of the defendant Tolbert when interrogated as to whether he was drunk at the time of the arrest is prejudicial to the defendant. The officers had testified for the state that the defendant was intoxicated at the time of his arrest. His testimony was in direct conflict. It was not misconduct to interrogate him fully on this point, since such questions went to his ability to form correct impressions of the circumstances and to affect his credibility. While the county attorney was zealous, we do not perceive any substantial ground for the charge of misconduct in the cross-examination. Also under this assignment it is argued that the county attorney in his closing argument was guilty of misconduct, and there is set out in the brief a considerable portion of the closing argument. This is a mere resume of the facts proven and a deduction of the county attorney from these facts. There is nothing in this assignment that would warrant a reversal.

Finally, it is argued that the court erred in refusing defendants’ request for a definition of the term “reasonable doubt,” citing Nelson v. State, 5 Okla. Cr. 368, 114 P. 1124, where it is said that the definition of the term “reasonable doubt” should not be given except upon proper request. This court recently, in the case of Pitman et al. v. State, 33 Okla. Cr. 165, 242 P. 288, said that it is not error for the trial court to decline to define the term “reasonable doubt,” whether requested or not.

The action of the officers in shooting into the car in which the defendants were on the occasion in question appears to have been an act lacking in official good sense. While the circumstances of the pursuit of defendants under the information they had received were probably sufficient to lead to the belief that a felony had been committed, yet the resort to firearms by an officer to apprehend a feeling suspect should not be hastily ^adopted, and is entitled to the severest condemnation. Here, however, we are considering only the charge of illegal transportation of whisky, and are not to lose sight of the fact by reason of surrounding circumstances. If the fact of the shooting was not in this case, we think it could not be seriously urged that the case should be reversed. Upon a consideration of the entire record, we find no error that would warrant a reversal.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    AUDIE ROACH v. STATE.
    No. A-5280.
    Opinion Filed April 16, 1926.
    (245 Pac. 665.)
    J. Q. A. Harrod, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, Audie Roach, here designated the defendant, was by verdict of a jury found guilty of grand larceny, with his punishment fixed at confinement in the penitentiary for a term of six years.

This defendant was charged jointly with G. M. Hays with the larceny of a Ford roadster. Hays entered a plea of guilty, and was sentenced to serve a term of five years in the penitentiary. At the trial of the defendant, Hays, although called as a witness for the state, endeavored to assume all responsibility for the theft of the car. But other portions of the state’s evidence indicated beyond a doubt that two persons took the car, in the nighttime, from the garage of the owner; that these two men were identified in possession of the car at about 3 o’clock in the morning at a farmhouse some miles distant from the place from where it was taken, where they stopped to procure gasoline, and where the farmer assisted them in getting the car out of a ditch; that Hays and the defendant were found in the possession of the car later that same morning in the act of dismantling it of some of its accessories; and that statements made to the farmer, to the officers, and various other persons by the defendant concerning the ownership of the car and the two men’s possession of it were inconsistent with defendant’s innocence.

It was the theory of the defense that Hays had stolen the car, and that the defendant Roach had afterwards joined him in its transportation, not knowing that the car was stolen. The facts and circumstances brought out by the state through its various witnesses, all considered together, make it conclusively appear that this defendant was implicated in the original taking of the car.

Complaint is made by the defendant that the court failed to instruct the jury upon the law of circumstantial evidence. It has been so often held by this court, as to need no citation of authority, that such an instruction is not mandatory, unless the evidnce is wholly circumstantial. There was considerable direct, positive evidence in this case connecting the defendant with the larceny of the car, which made it unnecessary to submit an instruction on circumstantial evidence, and more particularly so since there was no request for such an instruction.

It is further contended that instruction No. 4 was erroneous and prejudicial. This instruction reads thus:

“You are instructed, gentlemen of the jury, that under the laws of this state all persons concerned in the commission of any felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals, and are prosecuted as such; and any person who joins with another in the taking away of personal property, knowing the same to have been recently stolen, is guilty as though he had taken part in the original taking. And in this connection, gentlemen; should you find from all the facts and circumstances in this case, beyond a reasonable doubt, that the defendant, Audie Roach, did take, steal, and carry away by fraud and stealth the automobile as charged in the information, or aided, abetted, or assisted another in taking, stealing, and carrying away by fraud or stealth, or after the larceny of said car joined with another in taking said property away by fraud or stealth, knowing the same to have been recently stolen, and that the automobile in question was the property of one Edgar Stultz, then in such event the defendant would be guilty, and you should so find.”

The concluding part of this instruction, indicating that the defendant would be guilty in the event that he joined the thief and aided and assisted in the asportation of the stolen car after its original taking, was ineptly worded and stated. The words “after the larceny of the car” should have been omitted; or the instruction should have concluded with a declaration that one who joins with a thief and assists in the asportation and transportation of the stolen property, knowing at the time he does so that the other acting with him is in the act of carrying away the property of another, is equally guilty of the larceny. Good v. State, 21 Okla. Cr. 328, 207 P. 565; Martin v. State, 12 Okla. Cr. 510, 159 P. 940; Brown v. State, 7 Okla. Cr. 678, 126 P. 263; 36 Corpus Juris, 798.

However, under the evidence, the jury could not have been misled by the technically inaccurate phrase “after the larceny of the car.” Under the circumstances in this case the larceny was being committed, and was not completed as long as the asportation continued, and it was evident that the defendant, who aided in the asportation, was also implicated in the original taking.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte H. C. HILL.
    No. A-6163.
    Opinion Filed April 21, 1926.
    (245 Pac. 663.)
    F. H. Reily, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for respondent.
   DOYLE, J.

In the petition for writ of habeas corpus, it is averred that H. C. Hill is illegally restrained of his liberty by Frank Fox, sheriff of Pottawatomie county. The cause of restraint as alleged is by virtue of an executive warrant, issued by the Governor of this state on requisition from the Governor of Arkansas, accompanied by a copy of the charge as follows:

“In the Justice Peace Court of Van Burén Township. Before W. H. McKinney, Justice of Peace.
“State of Arkansas v. H. C. Hill.
“Information.
“Comes Dave Partain, prosecuting attorney within and for the Fifteenth judicial circuit of Arkansas, of which Crawford county forms a component part, and alleges that there are reasonable grounds to believe that H. C. Hill has committed the offense of forgery and uttering forged instrument as follows: That said defendant did on the 20th day of October, 1925, in the county and state aforesaid, unlawfully and feloniously did forge and counterfeit the name of Steve Bullington to a certain writing or paper, purporting to be a note, with the willful, unlawful, and felonious intent then and there to cheat and defraud the said Steve Bullington of his money and property, against the peace and dignity of the state of Arkansas. Wherefore said prosecuting attorney prays that a warrant of arrest be issued for said defendant to the end that he may be apprehended and brought before the court to be dealt with as the law directs. Dave Partain, Prosecuting Attorney.”

And certified as follows:

“State of Arkansas, County of Crawford :
“In the Justice Court of Van Burén Township.
“I, W. H. McKinney, a justice of the peace within and for the township of Van Burén, in said county and state, duly commissioned and acting, do hereby certify that this is true and correct copy of the information filed in my office on the 30th day of March, 1926.
“W. H. McKinney, J. P.”

It is averred that said unverified information is insufficient to sustain said extradition warrant and therefore said extradition proceedings are null and void; that the proceedings are not brought in good' faith and are only brought for the purpose of collecting a note petitioner owes a bank in Crawford county, Ark., and that the officers of said bank have offered to dismiss said proceedings if petitioner would pay said note..

The Attorney General does not contend with great confidence that the so-called information is sufficient to. support the extradition warrant.

The act of Congress (Act Feb. 12, 1793, §1 [U. S. Comp. St. § 10126]), vitalizing the extradition provision of the federal Constitution, provides that the executive authority of the demanding state, in addition to making the demand, must—

“produce a copy of an indictment found or an affidavit made before a magistrate of any state or territory, * * * charging the person, * * * demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged has fled.”

The demánd or requisition of the Governor of Arkansas in this case is not based on an indictment found or any affidavit made before a magistrate, but is based on what purports to be an information signed by Dave Partain, prosecuting attorney, without verification, and is not supported by affidavit.

In Ex parte Hart, 63 F. 249, 11 C. C. A. 165, 28 L R. A. 801, the United States Circuit Court of Appeals held that, although such state may regulate its own practice and substitute the use of information for indictment, to entitle it to the benefits of the extradition laws the act of Congress must be complied with, and that no extradition should be granted unless the requisition was accompanied by a copy of an indictment found or affidavit made before a magistrate charging a crime. Goff, Circuit Judge, delivering the opinion of the court, used the following language:

“The information is verified by the prosecuting attorney, who swears that he believes the contents thereof to be true, not that they are true.' This is not such charging of the commission of a crime before a magistrate of the state as is contemplated by the statute. For the purposes of an affidavit to be used for the arrest and removal of a fugitive from justice, this is not sufficient. The affidavit required in such cases should set forth the facts and circumstances relied on to prove the crime, under the oath or affirmation of some person familiar with them, whose knowledge relative thereto justifies the testimony as to their truthfulness, and should not be the mere verification of a court paper by a public official, who makes no claim to personal information as to the subject-matter of the same. Ex parte Smith, Fed. Cas. No. 12968, 3 McLean, 121; In re Doo Woon [D. C.] 18 F. 898; Ex parte Morgan [D. C.] 20 F. 298. By requiring such an affidavit, the liberty of the citizen is, to a great extent, protected, and the executive upon whom the demand Is made is thereby enabled to determine if there is cause to believe that a crime has been committed. To authorize a removal of a citizen of Maryland to the state of Washington for trial on a charge of crime something more than the oath of a party unfamiliar with the facts that he believes the allegations of an information to be true should be required, and is demanded by the law. To hold otherwise would enable irresponsible and designing parties to make false charges with impunity against those who may be the subjects of their enmity, and permit them, after they have caused public officials to believe their representations, to secure the arrest, imprisonment, and removal of innocent persons on papers regular in character, but without merit and fraudulent in fact.”

It seems to be well settled that the copy of the affidavit that accompanies the requisition should be a copy of an affidavit which is made in due conformity with law.

In Roberts v. Reilly, 6 S. Ct. 291, 116 U. S. 80, 29 L. Ed. 544, it is held that the papers must make it appear that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit certified by the Governor as authentic.

Upon the record before us we are of opinion that the requisition issued by the Governor of Arkansas did not comply with the law, and that the Governor of this state was not furnished with a copy of either an indictment found or affidavit, made as required by section 5278 of the Revised Statutes of the United States (U. S. Comp. St. § 10126).

It is therefore adjudged and ordered that the writ be allowed and the petition discharged.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Ex parte W. J. WEBB.
    (245 Pac. 1116.)
    No. A-4882.
    Opinion Filed April 16, 1926.
    Arnote, McCain & Emery, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This application for a writ of habeas corpus was filed in this court on October 13, 1923. The hearing upon the issues subsequently joined was on the 24th day of November, 1923, continued indefinitely. Upon examination of the petition, the writ, and service thereon, it appears that the application has been abandoned, and that the period of incarceration of the petitioner in the state penitentiary has expired. The application is dismissed.


text:
    ROSA BROUGHTON et al. v. STATE.
    No. A-5287.
    Opinion Filed April 17, 1926.
    (245 Pac. 662.)

      H. J. Mackey, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Rosa Walker, alias Rosa Broughton, and T. A. Wilson were jointly prosecuted for maintaining a public nuisance, a resort where intoxicating liquor was kept and distributed contrary to law.

Defendant Rosa Walker claimed that the place in controversy was her home, and denied that it was a place of public resort or a place where intoxicating liquors were stored or kept for distribution. Both she and the defendant Wilson claimed that he was merely a visitor there, and had nothing to do with the management of the place. Both defendants were found guilty as charged, and the punishment of each fixed at confinement in the county jail for a period of 6 months and a fine of $500.

Most of the evidence was obtained by means of a search and seizure made under authority of a search warrant. In the execution of the search warrant, the officers found and seized some whisky and a quantity of “choc” beer with a high percentage of alcoholic content. They found secret places, apparently designed to hide and keep liquors, and also found a number of bottles and some other evidence of an incriminating character.

It is earnestly contended on behalf of plaintiffs in error that the search was unauthorized and illegal, because the affidavit for the search warrant did not in fact speak the truth. The affidavit recited that the place to be searched was a place where intoxicating liquor was kept in storage for an unlawful purpose.

In the case of Walter Phillips v. State, 34 Okla. Cr. 52, 244 P. 451, it was held that, where an affidavit for a search warrant states facts sufficient to give the magistrate jurisdiction to issue a search warrant, the truth of the facts set out in the affidavit is not an issue at the trial. If the affiant committed perjury he may be prosecuted criminally, or be amenable for damages in a civil proceeding.

While the proof was sufficient to support a verdict ,of guilty as against defendant Rosa Broughton, from the whole record it appears, on rehearing, that Rosa Broughton may not have been responsible for all the things found on her premises, and that the punishment assessed against her was excessive. The judgment rendered against her is therefore modified by reducing the period of confinement in jail to 60 days, and the judgment as so modified is affirmed. The proof as against defendant T. A. Wilson is insufficient, and the judgment as to him is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte JACK HOWELL.
    No. A-6107.
    Opinion Filed April 19, 1926.
    (245 Pac. 66.)

      Gomer Smith, for petitioner.
    The Attorney General, Smith C. Matson, Asst. Atty. Gen., and J. D. Holland, Co. Atty., opposed.
   DOYLE, J.

In this proceeding petitioner filed in this court, on March 6, 1926, a duly verified petition for writ of habeas corpus to be admitted to bail.

It appears that petitioner was committed by the county judge of Cleveland county, after a preliminary examination, and without bail, to answer in the district court of that county upon a charge of murder, alleged to have been committed on the 14th day of February, 1926, in killing W. B. Dickover, by driving a car, while under the influence of intoxicating liquor, in a reckless way, upon the public highway; that an application for bail was made to the judge of the district court of Cleveland county, and the same was denied; that the proof of guilt of murder is not evident, nor the presumption thereof great — all of which is clearly shown by the testimony of said preliminary trial, a copy of the same being attached and made a part of the petition.

, It is the uniform holding of this court that, under the constitutional provision (article 2, § 8) one charged with a capital offense is entitled to bail as an absolute right, unless the proof of guilt is evident, or the presumption thereof great, and, in case the proof of guilt is evident, or the presumption thereof great, the granting or refusing of bail is a matter of judicial discretion.

Upon a consideration of the testimony, we are of opinion that the petitioner is entitled to bail as a matter of legal right.

It is therefore adjudged and ordered that said petitioner be admitted to bail upon the charge of murder now pending against him, and that his bail be, and is hereby, fixed in the sum of $15,000, bond to be conditioned as required by law, land the same to be approved by the court clerk of said county, and upon his approval of said bond he shall notify the sheriff, who shall thereupon discharge said petitioner from custody.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    Ex parte J. A. OWENS.
    No. A-4432.
    Opinion Filed April 19, 1926.

      (245 Pac. 68.)
    H. J. Mackey, for petitioner.
    The Attorney General, for respondent.
   DOYLE, J.

Petition for writ of habeas corpus by J. A. Owens, who, having been arrested by Ben Dancy, sheriff of Oklahoma county, is held under a warrant issued by the Governor for his return to the state of Texas, upon a requisition from the Governor of that state, alleging that he is a fugitive from justice. The charge is the theft of á ring of the value of over $50, the property of Adrian Skinner. There was no hearing had before the Governor of this state.

It is averred that before the issuance of such warrant petitioner presented his protest against the issuance of the same, and denied that he was a fugitive from justice of the state of Texas, and protested that the application for said warrant was not made in good faith for the purpose and with the intent of punishing him for any crime by him committed, but for the purpose of injuring him in his reputation and property.

On the return of the writ, a hearing was had, and the proof shows that petitioner had been engaged in the business of selling storage batteries in Dallas, Tex.; that October 1, 1921, Adrian Skinner purchased an interest in petitioner’s business and in part payment for the same, gave petitioner a diamond ring, subject to a lien of $265, •as security for which said ring was held in pawn; that petitioner paid off and discharged said lien and became and has been at all times the legal owner of said ring;, that on 'June 7, 1922, petitioner sold his business in Dallas to one A. H. Hardin, and returned to Oklahoma City, of which place he had for several years been a resident; that later said Hardin contracted and agreed with said Adrian Skinner that, if he would appear before a magistrate and swear that petitioner had stolen said ring from him, he would pay all expenses incurred by said Skinner in so doing, and that, if to avoid prosecution petitioner would surrender said ring, then said Skinner should have the same.

The proof further shows that a complaint charging petitioner with the theft of said ring was filed before a magistrate at Dallas, Tex., and a warrant issued for the arrest of petitioner; that the said Hardin sent the warrant by mail to the police department of Oklahoma City, with a letter of instruction accompanying the same, directing the police department to advise petitioner of their possession of said warrant and to demand the surrender of said ring or submit to arrest under such warrant, and to further advise him if he would surrender said ring he would not be prosecuted on account thereof; that petitioner refused to surrender said ring, and thereafter the said Hardin and the said Skinner procured an indictment against petitioner. The evidence in support of the averments of the petition is undisputed.

In every extradition case the question of good faith of the prosecution is always open to inquiry on habeas corpus. It never was intended that the act of Congress (Comp. St. § 10126), passed to effectuate the extradition clause of the federal Constitution (art. 4 § 2), should be used to set in motion the machinery of the executive department of two states at the instance- of a private person, to enable such person to gratify his malice or to aid him in the enforcement of the collection of a debt. On the undisputed facts we are convinced that this prosecution was instituted to aid in enforcing the collection of a disputed debt.

The writ of habeas corpus is therefore allowed, and the petitioner discharged.

MATSON, P. J., and BESSEY, J., concur.