text:
    Ex parte SISSON.
    No. A-10972.
    Sept. 28, 1949.
    (210 P. 2d 185.)

      Jack L. Spivey, Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This habeas corpus action is brought for the purpose of attempting to secure the petitioner’s release from confinement in the State Penitentiary. The amended petition alleges that the petitioner was charged by a criminal complaint filed before the connty judge of Payne connty sitting as a committing magistrate with the crime of rape in the first degree allegedly committed on October 10, 1939; that on November 2, 1939, the petitioner entered his plea of guilty to said charge and was sentenced by the district court of Payne connty to serve a term of life imprisonment in the State Penitentiary; that he was immediately transported to the penitentiary and has since been confined in that institution serving said sentence with the exception of a period of time of approximately five years, during which he was committed to the insane asylum at Vinita, Olda., for treatment.

The verified petition further alleges that the judgment and sentence is void for the reason that the petitioner, some five years previous to the time of the commission of the alleged crime, had sustained a serious head injury which caused him to he unconscious for a period of four days; that subsequent to said head injury; the said Noah R. Sisson had mental disturbances and was mentally unbalanced to the extent that he could not discern right from wrong; that at the time of the commission of the alleged offense, he did not know right from wrong and was insane at the time the purported plea of guilty was entered to the charge of rape.

The petitioner introduced evidence in the form of affidavits from several citizens of Drumright who had known him for years, in which they stated in substance that prior to the injury to petitioner on June 27, 1934, he was normal, but that subsequent to said injury he commenced to act as if he was mentally unbalanced.

The petitioner swore that he was 36 years of age; that on June 24, 1934, while working in the oilfields near Bristow he was struck with a joint of pipe and sustained a severe head injury; that he was unconscious for several days; that his head injury caused him to have severe headaches and dizziness; that he was arrested and placed in jail for the offense of rape and remained in jail for a period of three days or less during which he did not remember talking to any attorney; that a deputy sheriff or jailer told him while he was in jail there was a mob gathering, and that he would either plead guilty or they would hang. him;, that he was then taken before the district judge where he entered his plea of guilty and was immediately taken to the penitentiary to commence the serving of a life sentence; that he stayed at McAlester for approximately six months and was then sent to the State Hospital for Insane at Vinita, where he remained for a period of five years receiving shock treatments and other medical attention for his mental ailment.

To refute the evidence of the petitioner, the state showed by the testimony of Louis Smith, deputy sheriff of Payne county, that said rape charge was filed against the defendant in the county court of Payne county on October 16, 1939; that a warrant was issued for his arrest, but that he could-not be located in Payne county; that an investigation by the officers revealed that petitioner within a few hours after the crime was committed had boarded a train for Houston, Tex.; that they apprehended him in Houston where he had joined the army and was located at Kelly Field, Texas; that, he, the deputy sheriff, was present on October 26, 1939, when Sisson was arraigned before the county court of Payne county, at which time the county judge explained in detail all of the rights which the defendant, Sisson, had to a preliminary trial, to take 24 hours to make up his mind whether or not he wanted a preliminary trial; that he had a right to counsel and that the court would appoint counsel, if defendant requested it, to aid him in the preparation for the preliminary examination; that after being fully advised, the said Noah Sisson told the court that he did not desire a preliminary trial and wanted to waive it; that the county court thereupon entered an order binding the said Noah Sisson over to the district court for a trial; that thereafter an information was filed in the district court of Payne county charging. Sisson with the crime of rape in the first degree; that at the time of the arraignment of the defendant before the district court, the said court appointed Robert L. Hert and Blakely Murphy as attorneys to represent the said Sisson; that a plea of not guilty was entered by the said Sisson at that time.

Shortly after the petitioner was apprehended, he gave a written signed confession in which he detailed the facts concerning his commission of the crime of rape upon Lois Ewin, on October 10, 1939, and in said confession he gave the details of two other criminal assaults on two other young girls; one on August 25, 1937, and the other in July or August, 1939. The written confession was introduced in evidence and reads in part as follows:

“On or about the 25th day of August, 1937, while in the city of Oushing, Oklahoma, one Sunday afternoon I was driving, my father’s Pontiac Sedan, Six Wheel with fender wells for the spare wheels and which car was gray color. I saw a little girl walking along on the east side of the City Building and pulled up to the corner and turned around and went back and asked her to deliver a package for me, she agreed to and I got her in the car and took her out in a cornfield southeast of Oushing, Oklahoma, and there against her will and consent I raped her. I then brought her back to a point about two blocks south of a grocery and filling station located on South Little street in Oushing.. I then returned to my mother’s house in Drumright, Oklahoma. I have since learned that the girl’s name is Ophelia Robertson and that at the time of the commission of this act of sexual intercourse with her she was living in Cushing.
“Then on or about the middle of July, or August, 1939, I was down in the City Park in Cushing when the little Beaver girl came down through the park and I asked her if she would deliver a package for me if I would give her two dollars, to which she agreed and I took her off down in the park and put her down on the ground and started to have sexual relations with her, but she begged me so that I decided to let her up. You say that there was marks on her neck where she said she had been choked. Well, if she was, it was my passion that caused me to do it.
“Then on the 10th day of October, 1939, I was down to the schoolhouse at noon when school let out and I met Lois Ewin and asked her if she would deliver a package for me for three dollars to which she agreed. I took her down in the City Park and got her down on the ground and had sexual relations with her. I took out my pocketknife and stuck it into a tree and told her if she fought or resisted, ‘I will cut your throat.’ After I got through with her I had her go down in the creek and wash herself. I got up and ran and went to my grandmothers, Mrs. Baker, who lived there in Cushing. I changed my shirt and went over to Cochrane Grocery and asked the lady the number of a Taxi. She told me and I called them and hired the taxi to take me to Drumright, Oklahoma. I then on Thursday sold the knife I had with me to a brakeman in Drumright for ten cents and left there and went to Houston, Texas, where I enlisted in the IT. S. Army and was stationed at Kelly Field Texas where I was at the time I was placed under arrest for the crime of First Degree Rape.”

Six days after the petitioner, Sisson, was first arraigned in the district court, he again appeared before the district court with his two attorneys at which time he expressed a desire to withdraw his plea of not guilty and enter a plea of guilty. At said time, the district judge questioned the petitioner concerning the commission of the alleged crime and then accepted his plea of guilty and sentenced him to serve a term of life imprisonment in the penitentiary.

The minutes of the county court and of the district court showing the occurrences at the time of the arraignment of the accused in each of said respective courts were also introduced in evidence and they corroborated the testimony of the deputy sheriff that the petitioner was fully informed of all of his rights.

Robert L. Hert, one of the attorneys appointed by the court to represent the petitioner, testified that he and his associate, Mr. Murphy, who is now an instructor in the School of Law at the University of Tennessee, consulted with Noah Sisson and advised him of everything that they thought it was necessary for him to be advised of to prepare for trial, and told him of all of the rights which he had under the law, including the right to he tried to a jury of twelve men; that after consulting with the said Sisson, he expressed a desire to plead guilty and after becoming familiar with all the facts, he and his co-counsel appeared with the said Sisson when he entered his plea of guilty before the district court.

Honorable Henry W. Hoel, district judge of Payne county, testified that he appointed two very able and competent attorneys to advise and consult with Sisson when he was arraigned before the district court upon the charge of rape; that the crime which the petitioner was alleged to have committed was very revolting, and that he appointed the two lawyers to consult with the petitioner so that he would be thoroughly protected in all of his rights; that at the time the plea of petitioner was entered, the court used every precaution to preserve and protect the rights of the defendant, and to be sure that he understood the nature of the offense with which he stood charged, and the punishment which could be meted out upon a plea of guilty.

This court has been receiving many petitions for habeas corpus from inmates of the penitentiary. It should be borne in mind that the writ of habeas corpus may not be used as a substitute for an appeal. Ex parte Wright, 78 Okla. Cr. 157, 145 P. 2d 772. Our function in habeas corpus is not to determine the guilt or innocence of the petitioner of the crime for which he was sentenced, but only to determine whether he is restrained of his liberty by due process of law, and whether the court which rendered judgment imposing the sentence was without jurisdiction. In re Maynard, 79 Okla. Cr. 215, 153 P. 2d 505.

Persons with mental ailments are in the same class as immature children without any knowledge of court proceedings. It has been held that where such individuals are charged with a crime, it is the court’s duty, whether requested or not, to appoint counsel to. represent the accused as a necessary requisite of due process of law. In re Cornell, 87 Okla. Cr. 2, 193 P. 2d 904. That was done in the instant case. The district judge swore that there was nothing in the appearance or conduct of the accused at the time of the arraignment to indicate that he did not know right from wrong, but he assigned counsel to advise with the accused for the sole reason that he appeared without counsel, and the charge against him was a capital offense:

The fact that petitioner may not have known right from wrong at the time of the alleged commission of the crime was a defense which he properly could have raised in the trial of a case, and would have been subject to review by this court upon appeal in case of a conviction.

In Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857, 862, it is said:

“The defendant remembered with clarity, the minutest details of the killings, as shown by his statement. He knew he was doing wrong all of the time he was committing the crimes. We cannot assent to the proposition that a morbid state of affections or passions, or an unsettling of the moral system, where the mental faculties remain in a normal, sound condition excuses actions, otherwise criminal.”

This record reflects that the trial court did all that was necessary to have been done to have fully protected the rights of the accused. The nature of the crime charged to the accused and his subsequent history of confinement in the hospital for mental diseases, is strong proof that the petitioner was suffering from a mental ailment at the time he committed the crime. Such a showing, however, is not sufficient to defeat the jurisdiction of the court and require this court to say that the judgment assessed the defendant was void. If the petitioner is now cured of his mental disturbances to where he can conduct himself as a law-abiding citizen, the facts which have been shown in his behalf might appeal to the Pardon and Parole Board in an application for clemency. Those facts, however, are not such as would justify or require this court to release him from the penitentiary on habeas corpus.

The writ is denied.

BRETT and POWELL, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    SMITH v. STATE.
    No. A-11060.
    Sept. 28, 1949.
    (210 P. 2d 190.)
    C. D. Wilkinson and Tom Finney, Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, Raymond Smith, defendant below, was charged, tried, convicted by a jury and sentenced to three years in the penitentiary in the district court of McCurtain county, Okla., for the crime of larceny of domestic animals, to wit, three calves. The crime is alleged to have occurred on or about June 17, 1947.

It will not be necessary to review tbe evidence in tbe case at bar. It is sufficient to say that all of the state’s evidence as to identity and ownership of the cattle allegedly stolen was entirely circumstantial. The defendant contends that the evidence was insufficient to establish the corpus delicti. He admits that proof of the corpus delicti may be made by circumstantial evidence. He cites Brown v. State, 13 Okla. Cr. 111, 162 P. 449, wherein it is said:

“In a prosecution for larceny of a domestic animal, circumstantial evidence may be resorted to for the purpose of proving the corpus delicti, in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense.”

Such is the clearly established law. In this connection we have reviewed the record, and while the evidence is conflicting and contradictory in some particulars, we believe it sufficient to sustain the verdict. See, in this connection, Tobler v. State, 87 Okla. Cr. 25, 194 P. 2d 202, wherein the court said:

“Where one is charged with the crime of larceny of live stock and the evidence is conflicting, the judgment and sentence will not be set aside where the evidence is sufficient to sustain the same.”

The defendant’s next contention is the court erred in instructions Nos. 4 and 5 by specifically naming Paul Johnson and omitting the name of Junior Lewis as an accomplice. The defendant does not question the correctness of the court’s instructions except by reason of the omission of the name of Junior Lewis. At the time of the trial no objection was interposed to the form of instructions Nos. 4 and 5 and the omission was not called to the attention of the court. If the defendant thought that the instruction was not sufficiently full and definite, he should have prepared and submitted to the court an instruction that was. In any event he should have objected or called the matter to the court’s attention at the time of trial. By his failure so to do he waived the right to complain in this regard, the instruction otherwise correctly stating the law as it did in the case at bar, Nance v. State, 43 Okla. Cr. 247, 278 P. 357; Crowdis v. State, 59 Okla. Cr. 275, 57 P. 2d 1200. See, also, Jarman v. State, 57 Okla. Cr. 226, 47 P. 2d 220, holding the right to object under such conditions is waived, unless error was fundamental. To the same effect is Story v. State, 73 Okla. Cr. 273, 120 P. 2d 387, and Gentry v. State, 86 Okla. Cr. 92, 189 P. 2d 626. The error complained of in instructions 4 and 5 was not fundamental.

Next, the defendant contends the evidence being purely circumstantial, the court should have granted defendant’s request for an instruction thereon. It is conceded that where the evidence is both direct and circumstantial it is not error to refuse to give an instruction on circumstantial evidence, Carroll v. State, 54 Okla. Cr. 196, 16 P. 2d 891, but where the state’s evidence, as in the case at bar, is entirely circumstantial as to whether a theft was committed and whether, if so, the defendant committed it, it is error not to give an instruction on circumstantial evidence, Chapman v. State, 28 Okla. Cr. 208, 230 P. 283; Green v. State, 29 Okla. Cr. 145, 232 P. 853; Scroggins v. State, 54 Okla. Cr. 54, 14 P. 2d 237; Carroll v. State, supra, and many other cases to the same effect. This contention is well grounded. It was error for the court not to give an instruction on circumstantial evidence, and for this reason the cause is reversed and remanded for a new trial.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J.

text:
    Ex parte WOODRUFF.
    No. A-11259.
    Sept. 28, 1949.
    (210 P. 2d 191.)

      Sam W. Moore and Forest N. Simon, Oklahoma City, for petitioner.
    A. L. Jeffrey, Municipal Counselor, Kenneth J. Wilson, William F. Collins, Jr., and P., J. Demopolos, Asst. Municipal Counselors, Oklahoma City, for respondent.
   POWELL, J.

Under date of June 14, 1949, petitioner, Mae Woodruff, filed her petition in this court, to secure her release from confinement in the city jail of Oklahoma City. The parties have stipulated as follows:

“That on the 8th day of June, 1949, at the approximate hour of 10:30 o’clock P.M., petitioner was arrested by the Oklahoma City Police without warrant at a tap room in the 2200 block, West Exchange Avenue, Oklahoma City, Okla.; petitioner was held in jail until 2 o’clock P.M. on the 10th day of June, 1949, at which approximate time petitioner was convicted in the Municipal Court of the City of Oklahoma City, Oklahoma, of vagrancy by being a prostitute, fined $14.00 and costs, and ordered by the Municipal Judge of the said City to be held for examination in the Oklahoma City venereal disease clinic; that on the morning of June the 11, 1949, petitioner refused to submit to an examination by C. B. Taylor, M .D., director of the Oklahoma City venereal disease clinic; that at 11:30 o’clock A.M. on the 11th day of June, 1949, a hearing was had before the Honorable W. A. Carlisle, Judge of the District Court of Oklahoma County, upon a writ of habeas corpus wherein petitioner prayed that the District Court of Oklahoma County order the Respondent herein to afford to the petitioner the right to be examined by her own physician and further that the Respondent herein be ordered to release the said petitioner upon receipt of the results of such examination; that the said District Judge continued the hearing of the writ of habeas corpus to 1:30 o’clock P.M., June 13, 1949, and refused at that time, to order the respondent L. J. Hilbert to allow petitioner to be examined by her own physician and/or to be bound by the results of such examination of the petitioner by her own physician; that petitioner on the morning of June 13, 1949, did submit to an examination by C. B. Taylor, M. D., for the purpose of determining the existence of both gonorrhea and syphilis; that the result of such examination showed negative as to gonorrhea and negative as to syphilis; that at the hearing on June 13, 1949, before the said District Judge, Judge Carlisle refused to grant petioner her release for the reason that respondent proclaimed the necessity of an additional examination, to be made before the morning of June 15, 1949, to determine the existence of gonorrhea, that petitioner lodged her petition for a writ of habeas corpus in this court on the 14th day of June, 1949, and that the same was set for hearing and argued, orally, at 10 o’clock a. m., June 15, 1949.”

Respondent justifies petitioner’s restraint under provisions of Sections 548 and 552.2 of Title 63 O. S. Supp. 1947, reading:

“548. Prisons and penal institutions — Arrested persons — Examination and treatment — Quarantine.—The keeper, manager, guard, or person in control of every prison or penal institution in this State, shall cause to be examined every person confined in such prison or penal institution after conviction for any offense, to determine whether such person is an infected person. State and local Health Officers, or their authorized deputies who are physicians, are empowered to examine those who are arrested by lawful warrant for vagrancy, prostitution, rape or other sex crimes for the purpose of determining if they are infected with venereal disease. Every such person shall submit to such examination and permit-specimens to be taken for laboratory examinations. Such person may be detained until the results of such examination are known. The required examination shall be made by the Health Officer, or, at the option of the person to be examined, by an approved licensed physician. All persons found to be infected with a venereal disease shall be treated by the local Health Officer or a licensed physician of their own choice until said person is non-infectious or dismissed by said physician. In the event such person infected with a venereal disease refuses or fails to submit to treatment, then said person may be quarantined for the purpose of treatment and reported to the State Board of Health.” As amended Laws 1943, p. 149 § 1.
“§ 552.2 Rules and regulations. — The State Commissioner of Health shall have power to make and amend any and all rules and regulations for the prevention and cure,to prevent the spread of the venereal diseases, which he deems necessary for carrying out of this and all other legislation for the control of venereal diseases, and such rules and regulations shall have the force and effect of law.” Laws 1945, p. 243, § 2.

In attempting to achieve the results intended by the Legislature, the State Commissioner of Health promulgated certain rules, and herein petitioner questions Rule No. 10, A, (b) Female, 2, which is:

“Two successive negative examinations for gonococci of the secretions of the urethra, vagina and of the cervix with an interval of at least forty-eight hours, and repeated for four successive weeks, unless shorter in the opinion of the health officer should be sufficient. These smears should be taken from the secretions expressed from the urethra or from the cervix after all secretions have been mopped away from the external os.”

The introductory statement to the rule is:

“Standards which shall govern in determining the infectivity of and the period of control and treatment of persons suspected of being infected, or having been found to be infected with a venereal disease.”

Petitioner in support of her petition advances four propositions, the first being:

“That the delegation of authority by the Statutes of the State of Oklahoma, herein involved, Sections 548 and 552.2 of Title 63 O.S. Supp. 1947, constitutes an unconstitutional delegation of legislative authority.”

In Ex parte Fowler, 85 Okla. Cr. 64, 184 P. 2d 814, a case where the treatment is very comprehensive, this court has held the act in question constitutional, and- held contrary to petitioner’s contentions. And see, also, Ex parte Roman, 19 Okla. Cr. 235, 199 P. 580.

But in petitioner’s argument she contends that in Ex parte Fowler, supra, consideration was not given to the manner in which the statute attempts to delegate police power; that is, “that the authority is delegated without sufficient standards, guides and boundaries within and by which the selected instrumentalities must act.” Also, that the effect of the statute in question is that the Legislature has abdicated its constitutionally delegated function contrary to the provisions of art. V, sec. 1 of the Constitution of the State of Oklahoma.

Petitioner, without analysis thereof, tabulates a great number of cases said to support the proposition raised, and while several are authority for general principles of law that seem to support the proposition raised by petitioner, yet on analysis, we do not find such citations to support petitioner’s argument as applied to the stipulation of facts in the within case.

The two principal cases mentioned by petitioner are: A. L. A. Schechter Poultry Corporation et al. v. United States, 295 U. S. 495, 55 S. Ct. 837, 79 L. Ed. 1570, 97 A. L. R. 947; and Panama Refining Company v. Ryan, 293 U. S. 388, 55 S. Ct. 241, 79 L. Ed. 44.

We find these two case, as the other cases cited by petitioner, to support what has long been the rule in this jurisdiction;-that is, that the law making prerogative is a sovereign power conferred by the people upon the legislative branch of the government, in the state or the nation, and that such authority cannot be delegated to other officers, boards or commissions, or branches of government. Therefore, neither the Congress of the United States nor the Legislature of Oklahoma, can delegate its legislative power, but may confer administrative power on an executive, a board, or commission. For cases from this jurisdiction so holding, see: Shilkett v. State, 29 Okla. Cr. 17, 232 P. 127, where it is stated:

“Within reasonable bounds, the Legislature may confer regulative powers upon the state board of health, and give to that board authority to adopt rules and regulations having the force and effect of law.”

See, also, Rush v. Brown, 187 Okla. 97, 101 P. 2d 262; Bailey v. State Board of Public Affairs et al., 194 Okla. 495, 153 P. 2d 235; and Gibbons v. Missouri K. & T. R. Co. et al., 142 Okla. 146, 285 P. 1040.

A case that stands out to us as a leading case, after examination of many cases from other jurisdictions, and where is treated the specific question of the claim of delegation of administrative authority without sufficient standards, guides and boundaries, is that of Matz v. J. L. Curtis Cartage Co., 1937, 132 Ohio St. 271, 7 N. E. 2d 220, and in which case the court cites the two Federal cases heretofore mentioned. The rule adopted in the Matz case has since been approved by a number of Ohio cases, in the Tennessee case of Houck et al. v. Minton et al., Tenn. Sup. 1948, 212 S. W. 891, and particularly in a late Ohio case involving the public health, and being Weber v. Board of Health, Butler County, et al., 1947, 148 Ohio St. 389, 74 N. E. 2d 331, wherein it is stated:

“Generally, a law conferring discretion on executive officer or board, without establishing any standards for guidance thereof, is ‘delegation of legislative power’ and unconstitutional, but when discretion relates to police regulation for protection of public morals, health, safety or general welfare and it is impossible or impracticable to provide such standards without defeating legislative object, legislation conferring such discretion may be constitutional without such restrictions.”

See, also, so holding: State ex rel. Sofeico v. Heffernan, 41 N. M. 219, 67 P. 2d 240; State v. Hutchinson, 246 Ala. 48, 18 So. 2d 723; Chafin v. American Soc. Prevention of Cruelty to Animals, 184 Misc. 15, 53 N. Y. S. 2d 174; State of Florida v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 47 So. 969, 32 L.R.A., N.S., 639, and State v. Bunner et al., 126 W. Va. 280, 27 S. E. 2d 823.

We find secs. 548 and 552.2 of Title 63 of O. S. Supp. 1947 not violative of art. V, Sec. 1 of the Constitution of the State of Oklahoma.

Under her second proposition, petitioner argues that her conviction in the municipal court of Oklahoma City is not such conviction as falls within the purview of sec. 548, Title 63 O. S. Supp. 1947, supra, pointing out that when the statute was in part amended in 1943, there was omitted the clause “against the laws of the State or any municipality thereof”; that it was necessary that she be arrested under warrant in order to be detained for examination for venereal disease, the warrant to be from a court having jurisdiction to incarcerate the person convicted. That is, “that before the keeper of a prison or penal institution ‘shall cause to be examined * * *’ there must be a conviction of an offense which by the judgment and sentence lawfully lodges the corpus of the individual in such institution.” She contends that she could have been prosecuted in a state court under sec. 667, Title 11 O. S. 1941, and that such was necessary in order for her to be held for examination.

A reading of the sections mentioned discloses that authority is granted to state and local health officers to make examination of persons merely arrested by lawful warrant for sex offenses. But here the petitioner was not ordered examined until after she had pleaded guilty to the sex offense “vagrancy by prostitution”, and had paid a fine. In the present case, the petitioner apparently did something in connection with her trade in the presence of the officer, causing her arrest, so that it was not necessary that a warrant be issued, as could have been. 11 O.S.A. § 714. And while the municipal court does not possess the authority of state courts it does have authority to incarcerate a person after conviction for nonpayment of fine. It is, therefore, the opinion of this court that the municipal judge of said court could, after the conviction of the petitioner for the sex offense charged, acting in the capacity of a local health officer, detain petitioner for examination for venereal disease. Such we interpret to be the spirit and intent of the statute in question, and in accordance with the rules and regulations adopted by the State Board of Health judged to achieve the result sought by the Legislature in the enactment of the statute in question. See Ex parte Fowler, supra.

Petitioner next contends that in connection with sec. 548 of Title 63 O. S. Supp. 1947 “that an approved physician is any licensed and practicing physician within the state of Oklahoma who has been licensed under the provisions of Sec. 481 through 514, Title 59 O. S. 1941.”

In the instant case petitioner finally agreed for the director of the Oklahoma City Venereal Disease Clinic to examine her, but we would settle this question. Before a physician can procure a license to practice medicine in Oklahoma, he must comply with the provisions of sec. 481 through 514, Title 59 O. S. 1941 in order to obtain his license, but the statute complained of by petitioner requires the physician who might be chosen by the venereal disease suspect to be an “approved licensed physician”, the term implying something more than just a license to practice. And for good reason, considering that not all physicians may be in sympathy or familiar with the rules of the State Board of Health or the Directors of venereal disease clinics in the state under such rules. It is common knowledge that recognized hospitals throughout the land allow only approved staff physicians to perform particular operations, or prescribe for disease. There are reasons too numerous to mention that impel such policy, all calculated for the benefit of the victims of disease. What a reasonable rule this is when it comes to communicable diseases, that may undermine a nation, for reasonableness is a relative term depending on the urgency and gravity of the occasion.

We are of the opinion that persons suspected of having a venereal disease or diseases, and in custody under provisions of sections 548 and 552.2 of Title 63 O. S. Supp. 1947, are not entitled to be examined by any physician they might choose, but only by a licensed physician on the approved list of the State or the local Health Officer.

The fourth and final proposition advanced by petioner is “that where the Statutes in controversy, Sec. 548, Title 63 O. S. Supp. 1947, states that ‘An examination’ shall be made, it means one and only one examination.”

The State Board of Health in attempting to carry out the legislative program, promulgated certain rules, one being No. 10, A., (B) Female, 2, supra, requiring that specimens from the female organs be taken 48 hours apart, in order to determine infectivity.

We have herein and in Ex parte Fowler, supra, determined that the State Commissioner of Health is authorized to promulgate rules to carry out the purposes of the sections of the statute complained of. And while in the narrower sense, an examination is necessarily made of the person each time a specimen is obtained, in a broader sense and overall, it with reason may be said that the term “an examination” as used in the statute presupposes and means such an examination or series of tests as, in the sound judgment of the State Commissioner of Health and his expert advisers, will obtain the results sought by the legislative act in question. See Vol. 32, Words and Phrases, Perm. Ed., page 496, and Gould’s Medical Dict., 3rd Ed. pp. 495 and 1102.

What might be the rule today, might not be the rule later on, as medicine is a progressive science, and it can be contemplated that the rules may be revised from time to time in keeping with the advancement of medical science.

It is reasonable to indulge the presumption that these rules and regulations were adopted to accomplish in a fair and reasonable way the objects of the legislative act, and this presumption continues until the contrary appears by competent and convincing evidence. The rules and regulations of the State Board of Health are subject to judicial review, in a proper case, where it is alleged that some are unreasonable, arbitrary, or in any other way flagrantly infringe upon the constitutional rights of the individual. Ex parte Fowler, supra.

The rule complained of has been examined and found reasonable for the purpose of determining the infectivity of persons suspected of having a venereal disease or diseases, and for the prevention of the spread thereof, which is in accordance with the legislative intent, and for the public welfare. We therefore approve the rule in question.

For the reasons hereinabove stated, the petition for writ of habeas corpus is denied.

JONES, P. J., and BBETT, J., concur.


text:
    HANCOCK v. STATE.
    No. A-11203.
    Oct. 5, 1949.
    (210 P. 2d 372.)

      Harold McArthur, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, defendant below, William B. Hancock, was charged by information, tried by a jury, convicted of first degree rape, and sentenced to 35 years in the penitentiary in the district court of Tulsa county, Okla. The information, in substance, alleged that on or about September 27, 1948, the defendant had sexual intercourse with Velma Maydine Hancock, a girl 13 years of age, his daughter, contrary to the provisions of Title 21 O. S. A. 1941 §§ 1111, 1113, 1114, 1115. The record discloses that the defendant himself was 46 years of age. It also shows that he had been having sexual intercourse with his daughter for two years prior to the time alleged in the information or since she was 11 years of age.

The defendant’s first contention is directed at the proof of the age of Velma Maydine Hancock. He contends that she was probably over 14 years of age. This contention is predicated purely upon speculation. It is unsupported by any substantial evidence in the record. The girl’s positive testimony was that she was 13 years of age, and would be 14 her next birthday on October 27, 1948. In Day v. State, 29 Okla. Cr. 49, 232 P. 122, it was held:

“Age may be proven by the testimony of the person whose age is in question, although knowledge of that fact is derived from statements of parents or from family reputation.”

Moreover, a signed confession given by the defendant on September 30, 1948, and admitted in evidence without objection, corroborates the testimony of the prosecutrix in this regard. The confession in this connection reveals:

“Q. How old is she? A. She will be 14 in October. Q. Do you know her birthday? A. Yes, she Avas born on October 27, 1934. Q. Were you present at her birth? A. Yes.”

The defense in an attempt to contradict the foregoing facts offered the testimony of Mrs. Velma Robison, sister of the defendant. Her testimony in relation to the birthday of Velma Maydine Hancock was so contradictory as to be of no weight whatsoever. After fixing the date of her birth at October 27, 1933, she admitted on cross-examination that she had no personal knowledge of the exact date upon which Velma was born, and she was testifying only from just hearsay, or from just Avhat other people had told her. This contention is therefore wholly without merit.

Further, the defendant contends there was no proof of penetration. In this connection the record discloses in relation as to how the defendant disposed himself on the occasion of the rape the following: “Q. He put it inside of you? A. Yes.” At another place in the record she said “He just put it down in me.” Moreover, it discloses that she indicated that her private parts was the place where he put it inside her. She further said sometimes there was some discharge on her legs. The record further discloses that the defendant contracted gonorrhea from his daughter, after she returned from a hitchhiking trip with her mother. The contraction of gonorrhea from his daughter was evidence of penetration. The defendant did not testify in his own behalf to deny his daughter’s testimony, or the statements contained in his confession. Proof of penetration however slight is sufficient. Swearingen v. State, 31 Okla. Cr. 66, 237 P. 135. Proof of penetration herein was established beyond a reasonable doubt. Boydston v. State, 79 Okla. Cr. 172, 152 P. 2d 701. Furthermore, she said her father was the first man who ever had intercourse with her, and that this continued for approximately two years until her mother took her on the hitchhiking trip hereinbefore mentioned and she was compelled to submit to many other acts of intercourse with men on that expedition. It was on this trip that she apparently contracted gonorrhea, and gave it to her father after her return. The first time she ever had intercourse was with her father. The last time she had intercourse was with her father as alleged in the information. The defendant admitted in his confession that he had been having intercourse with his daughter since August 4 or 5, 1947, and that the last time he had had intercourse with her was about Wednesday or Thursday before he was arrested. The testimony of the prosecutrix in relation to having been violated is supported by the evidence of Dr. Harold Beddo, a duly licensed doctor and police physician in Tulsa, who testified that her hymen was broken and the vagina admitted two fingers without discomfort. His conclusion was that the victim had had intercourse a number of times. This contention is obviously wholly without merit.

The discussion in the preceding paragraph constitutes a complete answer to the next contention of the defendant, that the evidence was insufficient to establish the corpus delicti. It is urged that it cannot be established by the defendant’s confession standing alone. In the latter statement he is correct, Looney v. State, 59 Okla. Cr. 338, 60 P. 2d 214, but the rule does not apply here in light of the victim’s testimony and Dr. Beddo’s examination which supports the defendant’s confession.

Finally, the defendant urges that when viewed in light of the court’s prior decisions in similar cases, the penalty imposed is excessive, and urges us to invoke the provisions of Title 22 O.S.A. 1941 § 1066, wherein this court is authorized to modify judgment and sentences in furtherance of the ends of justice. In connection with this plea we have examined the case relied upon by the defendant, Thomas v. State, 69 Okla. Cr. 188, 101 P. 2d 283, as well as other cases of a similar nature wherein the court reduced the sentence: Sledge v. State, 40 Okla. Cr. 421, 269 P. 385; Ferguson v. State, 78 Okla. Cr. 126, 145 P. 2d 216. However, in Lancaster v. State, 79 Okla. Cr. 395, 155 P. 2d 548, where a 13 year old girl was raped while she was employed in the home of Lancaster, this court refused to modify a sentence of 35 years. We find no mitigating circumstances in the case at bar. In Shimley v. State, 87 Okla. Cr. 179, 196 P. 2d 526, this court said:

“The power of this court to modify judgment by reducing punishment in furtherance of justice, is not the power to commute by the Chief Executive, since judicial power to modify a judgment, and executive power to pardon are distinct; one being an award of justice, another being an act of grace.
“Criminal Court of Appeals has the power to modify a judgment and reduce a sentence inflicted by the jury or trial court, but this power cannot be arbitrarily used and can only be exercised where it appears from the record that an injustice has been done in assessing the punishment upon the defendant.”

In the light of all the circumstances herein, and after consideration of the adjudicated cases involving such situations, we are of the opinion that to modify this judgment, as was said in the Lancaster case, supra, we will be exercising the power of clemency instead of performing an act in furtherance of justice, and as was held in Shimley v. State, supra, would constitute purely an arbitrary exercise of power. The judgment of the district court of Tulsa county, Oklahoma, is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


author: JONES, P. J.

text:
    YARBROUGH v. STATE.
    No. A-11085.
    Oct. 5, 1949.
    (210 P. 2d 375.)

      Guy L. Andrews, McAlester, and Jay D. Jones, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Cecil Yarbrough, was convicted in the district court of Oklahoma county, of the crime of forgery in the second degree, and sentenced to serve five years’ imprisonment in the State Penitentiary.

The decisive question for determination of this appeal is ivhether the court erred in overruling the motion to discharge defendant and denying his plea of former jeopardy.

This case originally came on for trial on February 10, 1948. At that time, a jury Avas duly impaneled and SAVorn to try the case. The evidence of both the state and defendant Avas presented, and Avhile the court had taken a recess for the purpose of preparing his instructions, the judge received some information from one of the jurors, the exact nature of Avhich is not divulged in the record, but the record does shoAV that the folloAVing proceedings occurred:

“Thereafter,. and at 4:15 p. m., February 10, 1948, Court reconvened, all parties appearing as heretofore stated.
“The Court: Mr. Adamson, are you the juror Avho discussed the matter Avith me a feAV minutes ago in Chambers?
“Juryman Adamson: Yes sir.
“The Court: Noav, it is my understanding that you have knoAvledge of facts Avhich might be evidence in this case and from Avhich you do not feel you could act as a fair and impartial juror, as you have informed me.
“Juryman Adamson: I still do not knoAV either one of the gentlemen here but I do knoAV of the circumstance.
“The Court: Do not tell the Court Avhat the circumstance is.
“Juryman Adamson: It is Avhat I told you in Chambers.
“The Court: The circumstance noAV that you knoAV about convinces you that you Avould be unable to act as a fair and impartial juror?
“Juryman Adamson: Yes sir, because like I told you I wouldn’t want to be put in that position and pass judgment, knowing wbat I know now. ■
“The Court: That is information that you had knowledge of prior to this trial but it wasn’t called to your attention until some of the testimony was disclosed here?
“Juryman Adamson: Yes, due to the location where I was at.
“The Court: This Court finds that through inadvertence Mr. Adamson has knowledge of certain facts which affect his ability to act as a juror in this case. He has announced in open Court that he thinks he would be disqualified and unable to act as a fair and impartial juror. The Court finds that, on that showing, the juror is prejudiced, and a mistrial should be declared, so on that ground, the Court hereby declares a mistrial, and you gentlemen of the jury will be discharged from any further consideration of this case. Mr. Adamson, I want to thank you for your frankness in speaking up concerning this matter because the County Attorney and the Attorney for the defendant and everyone else wants everybody to have a fair and impartial trial.
“Jury Adamson: The information I gave you can be cheeked on. It is entirely up to the man. They can go down there. They can go down and check on it if they want to.
“Mr. Jones: The defendant claims an exception to the ruling of the Court in declaring a mistrial in view of the fact there is a specific statute, Title 22, Section 852 as to knowledge peculiar to the juror. It should be declared in open Court and the juror should be put on as a witness so that knowledge may be disclosed to the rest of the jurors. We say the Court acted beyond its discretion in declaring a mistrial after the case had gone to the jury.
“Mr-. Mounger: To all of which the State objects as incompetent, irrelevant and immaterial.
“The Court: The objection will be sustained.”

Thereafter, on April 14, 1948, the case came on again for trial, at which time the defendant through his attorney, filed his written plea of former jeopardy and motion to dismiss, in which he alleged the occurrence of the above facts as shown by the record, and further alleged that the trial court discharged the jury without the consent and against the will of the defendant, and that said discharge was unnecessary, and that the court did not follow the provisions of the statutes relating to such occurrences. The motion to dismiss and plea of former jeopardy were denied.

In the case of Stough v. State, 75 Okla. Cr. 62, 128 P. 2d 1028, 1030, this court laid down the rule as to when jeopardy attaches as follows :

“Before jeopardy attaches each of the following conditions must exist:
“First; the defendant must be put upon trial before a court of competent jurisdiction.
“Second, the indictment or information against the defendant must be sufficient to sustain a conviction.
“Third; the jury must have been impaneled and sworn to try the case.
“Fourth; after having been impaneled and sworn, the jury must have been unnecessarily discharged by the court.
“Fifth; such discharge of the jury must have been without the consent of the defendant. When these things concur, then the discharge of the jury constitutes jeopardy and operates as an acquittal of the defendant, and he cannot again be placed upon trial for the same offense.”

In the case of Goodman v. State, 41 Okla. Cr. 405, 273 P. 900, 903, this court stated:

“The question argued and urged by the defendant is not a new question in this state. In the early territorial days, in the case of Schrieber v. Clapp, 13 Okla. [215], 218, 74 P. [316], 317, Judge Burford, speaking for the Supreme Court of Oklahoma Territory, said:
“ ‘The general rule is that the prisoner has been put in jeopardy when he has been put upon trial before a court of competent jurisdiction, upon an indictment or information sufficient to sustain a conviction, and the jury has been empanelled and sworn to try the case, and the jury is discharged without sufficient cause, and without the defendant’s consent; and such discharge of the jury, although improper, results in an acquittal of the defendant.’ Cooley, Const. Lim. (6th Ed.) 399; Teat v. State, 53 Miss. [439], 453, 24 Am. Rep. 708; Whitmore v. State, 43 Ark. 271.
“Judge Furman, in Loyd v. State, 6 Okla. Cr. 76, 116 P. 959, adheres to the rule laid down in the case of Schrieber v. Clapp, supra. * * *.
“In State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091, this court reaffirmed its former rulings, and, after quoting article 2, § 21, Okla. Const., stated ‘that this provision expressly declares that no person who has been once acquitted by a jury shall be again put in jeopardy of life or liberty for that of which he has been acquitted, and the Constitution goes further and express terms provides: “Nor shall any person be twice put in jeopardy of life and liberty for the same offense.” All authorities agree that when a jury is sworn; jeopardy attaches. Under the latter clause of our Constitution, if jeopardy has once attached, a defendant cannot be placed again in jeopardy for the same offense, unless the jury were necessarily discharged, or unless the defendant agreed to their discharge, or unless a new trial is granted him upon his request.’—citing Loyd v. State, 6 Okla. Cr. 76, 116 P. 959.”

The general rule followed, not only by Oklahoma, but by most of the other states in the union, is set forth in 38 A.L.R. 706, as follows:

“The general rule as to discharge of jury for whatever cause as affecting jeopardy is stated in 8 R.C.L. 153, as follows: ‘Under the strict practice which anciently prevailed, in England at least, the discharge of the jury in a criminal case for any cause after the proceedings had advanced to such a stage that jeopardy had attached, but before a verdict of acquittal or conviction, was held to sustain a plea of former jeopardy, and, therefore, to operate practically as a discharge of the prisoner. In deference, however, to the necessities of justice, this strict rule has been greatly relaxed, and the general modern rule is that the court may discharge a jury without working an acquittal on the defendant, in any case where the ends of justice, under the circumstances, would otherwise be defeated. * * * In order, however, to justify an exercise of this power, the occasion for it must be very cogent, or, as some courts have said, there must be an absolute necessity. * * * In the absence of necessity, the defendant may reasonably demand that the result be regarded as an acquittal, and this applies to every offense charged in the indictment and on which the jury might have returned a verdict if they had not been discharged.’ ”

Applying the above stated rule to the case at bar, we find that the defendant was put upon trial before the district court of Oklahoma county, which court had jurisdiction of the offense of forgery alleged to have been committed by the defendant in the information filed against him; that the jury had been duly impaneled and sworn to try the case; that the jury was discharged without the consent and against the will of defendant which leaves for determination the sole question as to whether the jury was unnecessarily discharged by the court.

Tit. 22 O. S. 1941, § 852 provides:

“If a juror have any personal knowledge respecting a fact in controversy in a cause he must declare it in open court during the trial. If, during the retirement of a jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must he sworn as a witness and examined in the presence of the parties.”

Counsel for defendant called this statute specifically to the attention of the trial court after the juror allegedly had brought certain things to the attention of the trial court, but the trial judge did not choose to follow the plain provisions of the statute. Not only did the trial court refuse to follow the explicit provisions of the statute, but when the juror attempted to relate the circumstance concerning which he had information, the court stated: “Do not tell the court what the circumstance is.”

The necessity for the discharge of the jury must affirmatively appear in the record. We are unable to determine from what appears in the record just what was the particular reason causing the court to discharge the jury. No one except the judge and the juror knew what the juror had said to the court in chambers. Something was said which convinced the court that the juror had information about the facts in the case which would prevent him from being a fair and impartial juror. The statute above quoted provides that in those circumstances, the juror shall be sworn in open court and examined in the presence of the parties. The fact concerning which the juror purports to have knowledge to justify the discharge of the jury should be controversial and material to the issues.

The defendant and the state had agreed that the jury sitting in the box should hear and determine the guilt or innocence of the accused. The jurors were chosen as required by law. Counsel for defendant strenuously objected to their discharge and insisted that the court follow the provisions of the statute which said the juror must declare his information, in open court. The defendant’s right to have the jury pass upon his case was one which should not have been set aside except for a very cogent and compelling reason, and in such circumstances, the defendant and his counsel had the right to have the information allegedly known by the juror declared in open court, so that they would know just what it was, and in case of appeal, this court would know whether there was a necessity for the discharge of the jury.

It is our conclusion that where the court determines that a mistrial should be declared before the case is finally submitted to the jury because it is disclosed that a juror has knowledge of certain controversial facts material to the issues involved, that the court should have the juror examined in open court in the presence of the parties in accordance with the statute, and after such examination, if the trial court concludes in the exercise of sound judicial discretion that a mistrial should be declared, that the essential facts upon which the discharge is based and the finding of the court thereon must be entered in the record.

The court necessarily must have a discretion in the matter of determining the necessity for the discharge of the jury, but such court cannot act arbitrarily or capriciously, and unless the facts upon which the court based its judgment are entered of record, this court is unable to determine whether the action of the court was arbitrary or capricious, or in accordance with justice.

The plea of former jeopardy should have been sustained. For the reasons herein stated, the case is reversed and remanded, with directions to discharge the defendant.

BRETT and POWELL, JJ., concur.


text:
    CARN v. STATE.
    No. A-11033.
    Oct. 5, 1949.
    (210 P. 2d 380.)
    C. D. Wilkinson, Idabel (deceased), and Sam Carn, pro se., for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Defendant Sam Carn was charged in the district court of McCurtain county with the crime of rape in the first degree. Upon his trial the jury found him guilty as charged, and fixed his punishment at confinement in the State Penitentiary for 99 years. Motion for new trial was duly filed and overruled, and on November 21, 1947, the court entered judgment and sentence in conformity with the verdict. To reverse the judgment and sentence, defendant has appealed.

The petition in error with case-made attached was filed in this court on March 18, 1948. Under the rules of the court, defendant had 60 days within which to file a brief. No brief has been filed, and no extension of time therefor requested. The case was assigned for oral argument for May 18, 1949, and no appearance was made on behalf of the defendant.

Ordinarily, where the defendant appeals from a judgment of conviction and no brief is filed and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in admission or rejection of testimony. This court will examine the record for jurisdictional errors, and where none appear, the judgment will be affirmed.

However, courts are especially charged with the duty to carefully examine the evidence in rape cases, where, as observed by Lord Hale, the accusation is easily made, difficult to be proved, and still more difficult to be defended by one ever so innocent. In the instant case -the defendant was given what amounts to a life sentence, and we have carefully read and considered the entire record, including all of the evidence.

The defendant was charged with having raped one Emma Wilson, who was under the age of fourteen years. The parties involved are all Indians, and an interpreter was called in while the prosecutrix was on the stand, and also used for one of the defense witnesses.

The state used four witnesses. Dr. R. D. Williams, who testified that he examined the prosecutrix on the morning of September 25, 1947; that she was badly bruised; that in Ms opinion there was no doubt but that she had recently had intercourse, and that she had been penetrated.

Simon Wilson, the father of prosecutrix, testified that Ms daughter was 12 years of age. She attended Oak Hill school, one and one-half miles from home. She walked to school, down a good wagon road, and usually walked the distance in about an hour. She left home on the morning in question about 7 o’clock. He was not around her and she had no opportunity to tell him what had happened until that night, when the deputy sheriff took the prosecutrix to witness at the church. Witness took her to Dr. Williams the next morning.

The prosecutrix testified that she was in the fourth grade at school, and had known the defendant all of her life. On the morning in question when she was about half way to school, she heard someone whistle, and the next thing she knew the defendant grabbed her wrist. That “he put both arms around my stomach” and held her, carried her over the fence into the woods, and committed the act charged. That after the defendant had accomplished his purpose, he was attempting to remove his trousers and she got up, picked up her panties and ran. She went on to school. Her testimony was that she struggled and cried, and defendant told her if she cried loud he was going to kill her. At school she told her half-sister what had happened to her. On cross-examination she was asked why she did not tell her teacher, a Mr. Baker. Her answer was: “A. No, sir. I was choked up and I couldn’t talk, or tell him to make him hear me.” And that she did not tell because defendant had said he was going to kill her if she told anyone. A few days after the incident she went back down this road with her father, the county attorney and deputy sheriff, and showed them where the defendant had accosted her, where he took her over the fence, and where the act was committed. Her evidence was clear and convincing, She did not contradict herself in any way.

It is not clear who notified the deputy sheriff of the crime, but the report must have been through the half-sister. The deputy sheriff testified that he first heard of it about 6:30 that afternoon, when the prosecutrix came to his house, and he went with her to her father, who was at the church. He testified that she went with him, the county attorney and her father and pointed out the place in the woods where the crime was committed, and that “the grass was stomped around and the ground torn up a little” at the spot indicated by the prosecutrix.

Defendant testified that he was 40 years of age. He and Watson Taylor spent the night of September 23rd at the home of Myrtle Taylor, about half way between the home of prosecutrix and the schoolhouse, but not on the road traveled by prosecutrix. He left the Taylor home at 7 o’clock Wednesday morning, the 24th, going towards Oak Hill. He met George Tisho, and with Watson Taylor they went to the store of Fred Harraman and called a taxi from Broken Bow to come and get them. At Broken Bow they purchased a case of beer, and had the taxi take the three of them and the beer into the country. They directed the driver to return for them about 1.0 o’clock, and he took them back to town about 10:30 that morning. They got another case of beer, and returned to the same place. In the afternoon they went to Broken Bow again and got two more cases of beer, and had the taxi driver take them toward Oak Hill, and let them out near a little Indian church. They stayed there all afternoon, drinking beer, and went up to the church a little after dark, and defendant there learned of the charges made against him. On direct examination he was asked:

“Q. And you tell the jury you were no closer to the Wilson house than the Taylor place that day? A. No, sir. Q. And you did not see Emma Wilson,? A. No, sir. Q. Or have sexual intercourse with her? A. No, sir.”

This was all of the testimony of the defendant directly concerning the charge.

On cross-examination defendant testified that he had been in Durant and returned to Idabel on Tuesday night. He got a taxi to take him to Oak Hill, and testified that he was “pretty full but I knew what I was doing.” He and Watson Taylor had some whisky later, and he got pretty drunk. He returned to Broken Bow for more whisky and went to Little River for the same purpose. He returned to Myrtle Taylor’s home about one o’clock Wednesday morning, and Myrtle and her children were there. He admitted that he raised a little disturbance around Myrtle’s place, and left, returning about 3 o’clock, and she and her children were gone. He admitted causing other disturbances in the neighborhood during the night, which was the night prior to the crime charged.

The taxi driver testified for defendant that he received the call from Harraman’s store soon after 8 o’clock Wednesday morning and corroborated the defendant with reference to hauling the defendant and his two companions and the beer to the country.

George Tisho, an Indian who did not speak English, corroborated the defendant’s testimony, but did not know the time of day that they met that morning.

Fred Harraman, postmaster and storekeeper at Oak Hill, testified that the defendant with George Tisho and Watson Taylor came to his store and called a taxi about 7:30 Wednesday morning, but on cross-examination testified: “I don’t remember what time it was.” The defendant had been to his house about 2 o’clock that morning, and awoke him.

On rebuttal the state recalled the father of prosecutrix, and also called Watson Taylor, the other Indian boy who spent the day with the defendant. Taylor testified that he was with the defendant on Tuesday night, September 23rd, and that they got pretty drunk together. They spent the night at Myrtle Taylor’s house, and he got up about 7 in the morning and went to the home of Simon Wilson, and was there when Emma left for school. Simon Wilson testified that Taylor got to his house between 6 and 6:30 and left about 8 that morning.

In his petition in error the defendant sets out six assignments, namely: (1) that the court erred in overruling the demurrer to the evidence; (2) in overruling defendant’s request for a directed verdict; (3) that the punishment inflicted is excessive, under the facts proven, and amounts to cruel and unusual punishment; (4) that the verdict was the result of passion and prejudice; (5) that the verdict is contrary to law and the evidence; and (6) that the court erred in overruling the motion for new trial. As hereinbefore stated, these questions have not been briefed.

From a careful consideration of the record, we are of the opinion that no fundamental error was committed by the trial court. The information was in proper form, and is sufficient to charge the defendant with the crime of rape in the first degree. The testimony of the state and the defendant raised disputed issues of fact, which were in the exclusive province of the jury to determine. The instructions of the court were in proper form, and fully instructed the jury on the issues involved. No exceptions were taken to any of the instructions, and none offered by the defendant. The testimony of the state was sufficient, if believed by the jury, to sustain the conviction.

The punishment in this case is severe. The crime, if committed, was a heinous one. But in this case, we are inclined to apply a modern philosophy of penology, that the punishment should fit the offender, and not merely the crime. Since this case was submitted on May 18, 1949, it has been called to the attention of the court that Mr. C. D. Wilkinson, the attorney who represented the defendant in the trial of his case, and who lodged this appeal, died subsequent to filing the appeal. The defendant is a full-blood Indian, and the records in the office of the Pardon and Parole Board show that he attended school only two years, that he had no prior criminal record, and that he has no relatives whatever. He was delivered to the penitentiary on November 22, 1947, the day following his sentence, and has been confined since that date. Being uneducated, confined in the penitentiary, his attorney having died and he having no relatives and no other interested party to appear in his behalf, this court has concluded that justice would be served by modifying the judgment and sentence from one of 99 years in the penitentiary, to 30 years in the penitentiary. As so modified, the judgment and sentence of the district court of McCurtain county is affirmed.

JONES, P. J., and BRETT, J., concur.


author: PER CURIAM.

text:
    GRIFFIN v. STATE.
    No. A-11005.
    Dec. 7, 1949.
    (210 P. 2d 671.)

      Irvine E. Ungerman, and Charles A. Whitebook, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The defendant, Fred Griffin, was charged by information filed in the court of common pleas of Tulsa county with the unlawful possession of 24 pints and 12 four-fifths of a gallon of whisky, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $50, and costs, and has appealed.

The first assignment of error relied on for a reversal of the judgment is that the court erred in overruling the motion of defendant to suppress the evidence offered on the part of the state. It is contended that the evidence obtained by means of the search of defendant’s person and automobile was illegally obtained for the reason that the officers had no search warrant duly and legally issued and that the search was made without authority, was illegal and in violation of the constitutional guaranties of the defendant.

At the hearing on motion to suppress evidence, Roy Rains and Charles Page Campbell, the two arresting officers, testified, and the defendant Griffin testified.

Deputy Sheriff Roy Rains testified that he and Deputy Charles Page Campbell were in Campbell’s jeep, near the courthouse in Tulsa, at about 6 p. m., June 17, 1947, and saw Dale Wolfe pass, and followed him “to see if he was going to a place to get some whisky. Any place. We did not know where he would go or what he would do.” They followed him several blocks, and he stopped, and the officers stopped about a block behind him to watch him. He only stopped about two minutes, and drove on. Wolfe stopped at Fifteenth and Yale streets and parked his car, and the officers stopped where they had the car in view. Dale Wolfe didn’t know they were following him. Defendant Griffin passed at a high rate of speed and Officer Rains recognized him. Defendant slowed almost to a stop at Wolfe’s car, and then both proceeded east on Fifteenth Street to the next street, which was Allegheny, turned around the corner to the north, and both of them parked in the middle of the street, from 30 to 50 feet from the corner. The officers followed at high speed and the jeep was brought to such a sudden stop in about eight to ten feet to the rear of the two cars that Officer Rains fell out. Rains testified that when they turned the comer the two men were out of the cars and between them, and “Little Griff” had a box which he handed to Wolfe and Wolfe went towards his car with it, and put it in his car, and that he, Rains, was close enough that he read the words “Distillery” and “Whiskey” on the card-board box.

Rains further testified that he did not see any transaction between the defendant and Dale Wolfe until he turned the corner north on Allegheny street; that “this transaction took place before I had fallen to the ground and took place during the time after we turned the corner. Mr. Campbell slowed down for the corner. He took it on two wheels and when we straightened up, I saw this transaction take place.”

Rains was asked:

“Q. You saw the entire transfer of this case of whisky you say was made from one car to the other in the time your car traveled 50 feet? A. A very short space of time because they did not take long to do it. Q. And you saw that done in such a time you were able to read from the sign on the box? Is that correct? A. I could see the word ‘Whisky’ on the box.”

He further testified that he did not see any whisky bottles, that the card-board box was sealed, and that after the arrest they found a second card-board box of liquor in the defendant’s car.

The testimony of Deputy Campbell was not very pertinent. He testified that as he and Rains were leaving the courthouse, Rains said: “There is a car we raided the other day and got a lot of whisky out of. Let’s go and see what he is going to do.” That was at the time Wolfe passed them. He corroborated Rains about following Wolfe, he did not know Wolfe or the defendant, and didn’t see the words “Whiskey” or “Distillery” on the box, — he was too busy driving the jeep.

Defendant Griffin testified that just as he had placed the case of whisky in Dale Wolfe’s car and was waiting for his money, the jeep came around the corner; that he placed the box in the car, over the steering wheel, himself, and that Wolfe did not have it in his hand; that Wolfe never touched the box, and that the officers could not have seen the box or the wording printed on it; that we was standing between his car and Wolfe’s waiting for his money when he heard a commotion as the jeep turned the corner and that he stepped in his car to get out of the way and looked out of his window and saw Rains picking himself up off the gravelled road and that he had blood on his face and he handed Rains his handkerchief because he thought he was more seriously hurt than he was.

On trial, Rains testified practically the same as on the hearing of the motion to suppress. No one else testified. Demurrer to the evidence was overruled, and motion to strike was overruled.

In considering the assignment of error to the effect that the “court erred in not sustaining the defendant’s motion to suppress the evidence,” we must determine if there is competent evidence in the record reasonably tending to support the findings of the trial court, and if so this court will not reverse the lower court upon its findings of fact in connection with a motion to suppress the evidence. See Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99.

This court is further bound by the rule announced in numerous cases that whether a search of or seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the constitutional provision (Okla. Const. Art. 2, § 30) forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search or seizure is made. See: Sue Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433; Blair v. State, 75 Okla. Cr. 265, 130 P. 2d 545.

On hearing the defendant frankly admitted that he was transporting whisky and that the whisky in question was his and he was making a sale to Dale Wolfe, and therefore that he was actually violating the law at the time of his arrest, but he seeks to avoid liability under the constitutional provisions heretofore referred to.

Deputy Sheriff Roy Rains testified that he first determined to search the defendant and his automobile as he rounded the corner of Fifteenth and Allegheny streets, and saw the defendant transferring the sealed carton with the words whisky and the name of the distillery on it.

The officers were patrolling the streets of Tulsa in the performance of their duty. It also was a part of their official duty to keep under surveillance the acts of any known criminals or suspicious characters. Both the defendant, Griffin, and Dale Wolfe, were known bootleggers. However, even though they were known bootleggers, the officers would not have a right to search their automobile without a warrant, unless a crime was committed in their presence which would authorize a search of the car.

The question presented to this court is whether the fact that the officers saw two known whisky dealers passing a sealed carton from one to the other with the distillery name together with the word “whisky” stamped thereon, was a violation of the prohibitory liquor laws in the presence of the officers, so as to justify the arrest of the defendant, and the search of his automobile, and seizure of the whisky in question.

In Farmer v. State, 86 Okla. Cr. 308, 192 P. 2d 716, it is held:

“Where officer sees a person violating the intoxicating liquor law at a place where the officer has a legal right to be, the officer may without a warrant arrest the person and search his person and immediate possessions for intoxicating liquor.”

Our Constitution, art 2, sec. 30, prohibits only “unreasonable searches and seizures”.

In Davenport v. State, 71 Okla. Cr. 91, 108 P. 2d 549, the defendant drove his automobile into a public parking place. He left the car and went across the street to a restaurant. Certain policemen who had seen him drive into the parking lot went to the automobile, looked through a glass window into the car and saw several packages wrapped in brown paper. No whisky was visible, but ou each of the packages were written the initials of the kind of liquor each contained, such as J. E. P. for James E. Pepper, etc. The officers recognized the packages as being lugs of whisky, although no bottles of whisky were in view. The search and seizure was sustained on the ground that a crime was committed in the presence of the officers, which authorized arrest of defendant and search of his automobile.

In Matthews v. State, 67 Okla. Cr. 203, 92 P. 2d 549, certain policemen of Enid were following the custom of checking the cars left on the streets of Enid at night to see whether they were locked, or had articles of value that might be stolen. The officers saw a carton on the floor of the car labeled “Paul Jones Whisky”, and two or three other cartons beside it, and a bottle in the car. This court stated:

“In the case at bar, the undisputed facts and circumstances as testified to by the officers, were sufficient to warrant them in believing that intoxicating liquor was in the cartons and bottle laying on the floor of the automobile, and this was a sufficient showing of an offense committed in the presence of the officers, and the defendant admitted, while their investigation was in progress, that the trunk on the car contained whisky that belonged to him. The admissions against interest made by the defendant were conclusive as to his guilt of the offense charged.”

In Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028, the defendant had stopped his automobile in a line of traffic behind a truck which was stuck in a snow bank. Some deputy sheriffs were driving on the highway and stopped their car in the line of traffic, got out to assist in pushing the truck, and, as they passed the car of defendant, they saw a number of packages of whisky wrapped in brown paper laying in the car. No bottles were in sight, but tlie officers recognized the packages as being lugs of whisky. The law is stated in the syllabus as follows:

“Where one is transporting large quantities of intoxicating liquor upon the public highway, and an officer in the lawful discharge of his duty observes through the window of the car the intoxicating liquor upon the seat and floor of said car, it is not necessary to procure a search warrant before arresting defendant and searching the automobile, for the reason that a crime is being committed in his presence. Oklahoma Statutes 1931, § 2780, O.S.A., title 22, § 196.”

See, also, Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239, and Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366.

Lawson v. State, 84 Okla. Cr. 396, 182 P. 2d 786, and Washington v. State, 60 Okla. Cr. 316, 64 P. 2d 926, which are relied upon by defendant to sustain his position, are not in point because of different factual situation.

The fact that in the instant case the whisky was in the manufacturer’s carton which was sealed and unbroken, and had thereon the name whisky with the stamp of the distillery, creates a presumption that the carton contained the product named on its side.

Laws have been enacted for the very purpose of preventing and punishing the misbranding of articles of merchandise in packages, including liquor. (Title 78 O. S. 1941.) It is an established custom relied upon in every day transactions with the grocer, druggist, filling station operator, and all other sellers of merchandise to rely upon the brands which appear upon packages and cartons.

It would appear from the record in this case that bootleggers themselves follow the same custom as Dale Wolfe was accepting the carton of whisky from the defendant, Griffin, at the very time the officers interfered and stopped the transaction. Wolfe was evidently relying upon the fact that the carton contained the whisky named on the side of the box, and was ready to pay the defendant the agreed price without opening the box to taste the liquids therein contained to see whether it was actually whisky. It would seem an unusual and extremely technical requirement to say that an officer must have evidence stronger than that which a buyer of the liquor would require before he could seize the whisky package. These two men, one an evident wholesaler and the other a retail whisky dealer, were boldly carrying on their illegal traffic on a public street in the city of Tulsa, in broad daylight. It would be placing an unwarranted and strained construction upon the Constitution and the statutes of this state to say that such traffic committed in the presence of the officers of the law should escape prosecution.

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


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    SMITH v. STATE.
    No. A-11084.
    Oct. 12, 1949.
    (210 P. 2d 675.)

      Harold McArthur, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, David Smith, defendant below, was charged by information with the crime of the murder of Gladys Lanier in Tulsa, Okla., on October 6, 1947. He was tried by a jury in the district court of Tulsa county, Okla., convicted, and sentenced to the penitentiary to life imprisonment.

This appeal from the judgment and sentence therein imposed involves only one contention, that the trial court erred in its refusal to give the defendant’s requested instructions 1, 2 and 3 on manslaughter in the second degree. In considering this contention it is only necessary to call attention to the fact that the court instructed the jury on murder and accidental killing. Therefore, in resolving this issue, it is necessary that we consider the evidence in order to determine whether or not the court would have been justified in giving an instruction on second degree manslaughter, which is defined by Title 21 O. S. 1941 § 716, as follows:

“Every killing of one human being by the act, * * * of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

Briefly, the state’s theory supported by proof discloses that the defendant, a negro married man, and Gladys Lanier, the victim, a negro woman, separated from her husband but undivorced, had kept company for some time. However, shortly prior to the killing Gladys Lanier was trying to break off her relations with the defendant, and had started going with George Cheatham, a single man. She was going with Cheatham what might be termed steady. The record shows that notwithstanding, David Smith made it a point to see them when they were out together. On the night of October 5, before the killing in the early morning of the 6th of October, 1947, Gladys was out with Cheatham until near midnight. In the interim, from the time until they left until their return, the defendant came to Gladys Lanier’s home and inquired for her and was told by her mother that she was not there. He was not satisfied and pushed into the house and peeked around Hying to find her, and then said “I guess I will just jog along back”. Whereupon, he left. Thereafter he made repeated telephone calls in an endeavor to contact Gladys Lanier. Finally, he parked himself near the Lanier home on the back side of the automobile of a friend where he could “gawk” through the window, and waited for the victim to return to her home. George Cheatham saw him by the light of the headlight of the automobile in which he was riding as he turned the corner. The record shows that the defendant said to his friend Avhen the car in which Gladys and George were riding passed, “I believe there come my girl and her boy friend. Buster, you knows I just love that girl. I believe I will go and call her”. Thereupon he left and returned and said that he did call her; that at the time the first call was made George Cheatham was still there. The record further discloses that after Cheatman left he called again; that Gladys Lanier’s mother, Mrs. Givens, Avas near the telephone receiver; that he was talking so loud his voice could be heard and identified distinctly all over the room, he was so angry. He tried to get Gladys to come where he was and cursed her and used vile language in connection with her and her mother, too vile to be reproduced herein. Upon her refusal to come to him he said he would come to her home. Soon thereafter the defendant appeared and shook the door. Gladys’ mother admonished her not to go to the door, but she did anyway and opened it. The defendant stepped in and spoke so fast, so angrily, and in such “garbled talk,” Mrs. Givens could not understand what he said to Gladys; a shot rang out, Gladys screamed “Oh, mama”, and fell to the floor mortally wounded, shot in the mid-portion of the chest, dying immediately. The defendant slammed the door shut and fled. A little later he returned and shook the door again. Mrs. Givens, the victim’s mother, asked who it was and the defendant said “George”. She said she told him “No, it wasn’t George Cheatman but David Smith” and he could not come in. This in substance was the state’s case predicated upon the theory that the victim’s death constituted murder committed in the heat of jealous rage.

The defendant offered evidence to establish that there was no animosity toward the victim in the least. He attempted to establish that the killing of Gladys Lanier was purely accidental and unintentional. The record is replete with evidence that that was the sole and only theory of the defense. The cross-examination of Officer Alexander, who interrogated the defendant immediately after the^killing, discloses that the defense was to be accidental death. The defendant testified in his own behalf that he called Gladys Lanier immediately preceding the killing and arranged with her to go out with him. He said it was no uncommon thing for them to go out together at that time of night in the early morning.

His positive testimony establishing the accidental theory reads as follows:

“Q. After you had knocked on the door, did anybody come to the doorway in response to your knock? A. Gladys did. Q. And who opened the door? A. She did. Q. Did you step inside? A. I sure did. * * * Q. Now, what was the first thing that was said between you and Gladys? A. I said, ‘Oh, you are all ready to go.’ She said, ‘Where are we going?’ I said, ‘We will find some place to go.’ She said, ‘This late? I said, ‘Yes.’ She said, ‘You got the gun?’ I said, ‘Yes.’ Q. All right, then what happened? A. She said, ‘Let’s see it’; so I pulled it out, she grabbed the gun and it went off. Q. Have you got any idea why she made a grab for that gun? A. I sure don’t I really don’t, I have wondered a million times why she did it. Q. Did you have your hand on the trigger of that gun at any time? A. No, sir, I did not. Q. What did you do at the time the gun went off? A. Well, it scared me so bad I stood there, I didn’t do nothing, I was just standing. She said, ‘David, I am shot,’ and I was just still standing there and when she fell, then I opened the door and went and called the ambulance. Q. She fell? A. Yes, sir. Q. As you walked out that — now, you knew there was a telephone in the back end? A. I didn’t even think about a telephone in the back, I didn’t know where I was going, I was so scared. * '* * Q. When you came out of there, did you see anybody near the rear, around Turner’s Tavern? A. Two men or two boys or something was sitting on the two bottom steps, right at the bottom of the steps. Q. Do you know who they are? A. No, sir, I didn’t. Q. Did you make an effort to determine who they were? A. I didn’t try, they saw me running and they asked me, ‘What is the matter?’ I said, ‘A lady got shot accidently.’ I went on to call the ambulance, didn’t stop to see them or nothing. * * * Q. Well after the officers came, who was the first one that discussed with you as to what happened? A. I think it was Mr. Alexander. I think it was, I think that is the first one discussed it with me. Q. Did you tell him and show him what happened? A. I sure did. Q. And was his testimony in which he said that yon demonstrated how it happened — is that substantially correct? A. Yes, sir, just like I told him, kind of demonstrated just like I told him.”

On the issue of murder or accidental killing in light of the court’s instructions the jury resolved the issue against the defendant.

At no place in the record herein does the defendant advance or support the theory that the killing was the result of culpable negligence. From start to finish the case is pitched on the sole theory of murder or accidental killing. Thus the giving of an instruction on second degree manslaughter was entirely excluded. The jury from the testimony in the case at bar could honestly and intelligently return only one of two verdicts, guilty of murder or acquittal on the ground the killing was accidental and unintentional. It would have been error for the court to have instructed the jury on second degree manslaughter. Such an instruction would have been favorable to the defendant but error nevertheless, for there is nothing in either the state’s or the defendant’s case to establish culpable negligence on the part of the defendant in the handling of the pistol, for according to his theory he handled it in a careful and prudent manner and death ensued when the victim grabbed it causing it to discharge. Trial courts should instruct only as to the charge laid in the information or indictment, the defense interposed and the testimony in the case. Stokes v. State, 86 Okla. Cr. 21, 189 P. 2d 424; Shepperd v. State, 51 Okla. Cr. 209, 300 P. 421. In Forrester v. State, 45 Okla. Cr. 205, 282 P. 682, the rule was stated as follows:

“In charging the jury due regard must be had to the state of the case, the character and amount of proof, and the law as stated to the jury must be applicable to the pleading and testimony.”

In Scott v. State, 84 Okla. Cr. 171, 180 P. 2d 196, 197, it was held:

“It is not error for the court to refuse to give a requested instruction in the absence of any substantial evidence to support the giving of the same.” Pitts v. State, 53 Okla. Cr. 165, 8 P. 2d 78.

It is axiomatic in the law that the allegations and proof should correspond. It is also axiomatic that the instructions should likewise conform to the allegations and the proof of both the state and the defense. In the case at bar, to have submitted the issue of manslaughter in the second degree would have been to inject into the case an issue not supported either by the information or the proof of either the state or the defense.

We find no fault with the rules contended for by the defendant in 26 Am. Jur. §§ 210, 212. We merely say they have no applicability to the facts in/the case at bar. Neither do the authorities cited and relied upon by the defendant support his theory, Ballard v. State, 12 Okla. Cr. 277, 154 P. 1197; Spratt v. State, 55 Okla. Cr. 1, 23 P. 2d 223; Robinson v. State, 58 Okla. Cr. 213, 52 P. 2d 100; Smith v. State, 59 Okla. Cr. 111, 56 P. 2d 923; Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981; Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481; Sweet v. State, 68 Okla. Cr. 44, 95 P. 2d 242; Wilson v. State, 70 Okla. Cr. 262, 105 P. 2d 789; Orrell v. State, 79 Okla. Cr. 300, 154 P. 2d 779; Elix v. State, 77 Okla. Cr. 45, 138 P. 2d 139. The defendant, however, cites Tucker v. State, 66 Okla. Cr. 335, 341, 92 P. 2d 595, 598, which clearly does not support his position but to the contrary, says:

“It has often been held by this court that it is unnecessary for the court, in a murder case, to give an instruction submitting tlie question of manslaughter in the first or second degree, where that issue is not raised by the evidence. Newby v. State, 17 Okla. Cr. 291, 188 P. 124; Collins v. State, 22 Okla. Cr. 203, 210 P. 285, 30 A.L.R. 811, and cases cited therein.”

Such is the case at bar. There are no facts warranting the giving of the requested instruction on second degree manslaughter. Here, had the court given the requested instruction on its own volition, the defendant no doubt would be complaining that the court injected an element into the case not supported by the record, all to his prejudice. The contention that the court erred in refusing to give the requested instruction on second degree manslaughter is therefore without merit, and the judgment and sentence herein imposed is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


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    Ex parte LENEAVE.
    No. A-11254.
    Oct. 12, 1949.
    (210 P. 2d 678.)

      Morris Leneave, pro se.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   JONES, P. J.

By this original action in habeas corpus, the petitioner, Morris Leneave, seeks to secure his discharge from imprisonment in the State Penitentiary.

In the verified petition he alleges that he was charged in the superior court of Okmulgee county by information with the crime of larceny of domestic animals and entered a plea of not guilty; that on March 4, 1949, he was transported to the Oklahoma State Penitentiary and committed to said institution to serve a term of three years’ imprisonment; that the judgment and sentence under which the petitioner was committed to the penitentiary recites that he entered a plea of not guilty, was tried to a jury of twelve men who returned a verdict of guilty; that a motion for new trial was overruled and the prisoner sentenced to serve three years’ imprisonment in the penitentiary; that the recitals in said judgment and sentence were false and that said instrument is a manufactured document and that he never at any time had a trial; that his imprisonment is therefore illegal.

A rule to show cause was issued and the response of the warden alleges that the petitioner entered his plea of guilty to the charge of larceny of domestic animals and was sentenced to serve a term of three years’ imprisonment in the State Penitentiary. The respondent admitted that the original judgment and sentence under which the petitioner was committed to the penitentiary made the recitals as alleged in the petition, but further alleges that said judgment and sentence was on a printed form and that after the recital of such judgment and sentence was called to the attention of the county attorney, he made an application for an order nunc pro tunc for the purpose of correcting said judgment and sentence to speak the truth and to show that the petitioner was sentenced on a plea of guilty and not sentenced after trial and conviction by a jury; that the judge of the superior court of Okmulgee county, on August 1, 1949, entered its order nunc pro tunc correcting the judgment and sentence so as to recite that sentence was pronounced after the defendant had pleaded guilty to the charge contained in the information and was sentenced to serve three years’ imprisonment in the penitentiary. A certified copy of the application of the county attorney for the order nunc pro tunc and a certified copy of the nunc pro tunc order were attached to the response and made a part thereof.

The petitioner admits that he entered a plea of guilty but contended that the court was without jurisdiction to enter the nunc pro tunc order correcting its original judgment and sentence and that since the judgment and sentence under which he was committed contains false recitals that he was tried and convicted, the judgment should be vacated and set aside*

In the recent case of Ex parte Pruitt, 89 Okla. Cr. 312, 207 P. 2d 337, 338, this court held:

“A criminal case is pending in the sense that a court may correct its record until the judgment is fully satisfied.
“The validity of a judgment cannot be avoided because the clerk failed to perform his ministerial duties in making up the record; and where, through the negligence or omission of the clerk, the judgment recorded is defective or incomplete, the court may at anytime, upon a proper showing, require the clerk to make the record conform to the facts nunc pro tunc.”

In the body of the opinion in that case, the power of the court to enter judgments and orders nunc pro tunc was discussed at length and the conclusion reached is contrary to the contention of the petitioner.

It is apparent that the petitioner is legally restrained of his liberty in the penitentiary and the writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.


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    DOYAL v. STATE.
    No. A-11030.
    Oct. 12, 1949.
    (210 P. 2d 680.)
    Jim Barnett, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal by the defendant, Robert Doyal, sustained in the county court of McIntosh county, for the unlawful possession of intoxicating liquor.

The Attorney General has filed a motion to dismiss the appeal for the reason that the same was not filed in this court within the time allowed by law. No response has been filed to this motion.

The record discloses that the judgment and sentence was pronounced on November 4, 1947, at which time the defendant gave notice of appeal, and was given an extension of 60 days from that date in which to make and serve case-made. The case-made was completed and served on the county attorney on December 31, 1947, and was signed and settled by the county judge on January 13, 1948. The appeal was not filed in the Criminal Court of Appeals until March 16, 1948.

By statute it is provided that in misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. Tit. 22 O. S. 1941 § 1054.

No extension of time within which the appeal could be taken was given. The case-made was signed and settled by the county judge 10 days before the expiration of the 60 days allowed by the statute for the perfection of the appeal, but the case-made was not filed in this court until more than six weeks later.

This court dislikes to dismiss an appeal for any reason whatsoever and much prefer to determine the case on its merits. However, it is the rule that a failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court lias no discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Miller v. State, 78 Okla. Cr. 112, 114 P. 2d 120; Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870.

The appeal is dismissed.

BRETT and POWELL, JJ., concur.