text:
    HOWARD REYNOLDS v. STATE.
    No. A-7427.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 1118.)
    J. G. Fullerton, for plaintiff in error.
    J. Berry King, A tty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the unlawful possession of ivhisky, and was sentenced to pay a fine of flOO and to serve 90 days in the county jail.

Since the filing of this appeal, defendant has filed a motion to dismiss his appeal and the appeal is hereby dismissed. Mandate to issue forthwith.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    RALPH FOSTER et al. v. STATE.
    No. A-6809.
    Opinion Filed Oct. 19, 1929.
    Rehearing Denied Nov. 8, 1929.
    (281 Pac. 811.)
    Sam- S. Gill, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of having possession of intoxicating liquor, and their punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days for each of them.

In the case at bar, the information charged the defendants with the illegal possession of 17 gallons of whisky on the 20th day of April, 1927, in Oklahoma county, Okla. In case No. A-6808, 45 Okla. Cr. 147, 281 Pac. 810, the defendants were charged with possession of a whisky still on the 20th day of April, 1927, in Oklahoma county, Okla. Both charges arose out of the arrest of the defendants by the same officers. By agreement of the state and the defendants, both cases were tried at the same time to the same jury on the same evidence, and the record in each case is identical. The jury returned four verdicts, two against each defendant, and the court entered four judgments and sentences of 30 days’ imprisonment and $50 fine against each of the defendants in the two cases. By agreement of the state and the defendants, the court instructed the jury orally.

The record in the case at bar being identical with the record in case No. A-6808, and the law applicable to the case being the same, the cause is affirmed.

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


text:
    RALPH FOSTER et al. v. STATE.
    No. A-6808.
    Opinion Filed Oct. 19, 1929.
    Rehearing Denied Nov. 8, 1929.
    (281 Pac. 810.)

      Sam S. Gill, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of having unlawful possession of a whisky still, and their punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days for each of them.

In the case at bar, the information charged the defendants with possession of a whisky still on the 20th day of April, 1927, in Oklahoma county, Okla. In case No. A-6809, 281 Pac. 811, the defendants were charged with the illegal possession of 17 gallons of whisky on the 20th day of April, 1927, in Oklahoma county, Okla. Both charges arose out of the arrest of the defendants by the same officers. By agreement of the state and the defendants, both cases were tried at the same time to the same jury on the same evidence, and the record in each case is identical. The jury returned four verdicts, two against each defendant, and the court entered four judgments and sentences of 30 days’ imprisonment and $50 fine against each of the defendants in the two cases. By agreement of the state and the defendants, the court instructed the jury orally.

The defendants complain that the county attorney committed reversible error in arguing prejudicial matters not within the record. In Carr v. State, 43 Okla. Cr. 271, 227 Pac. 1038, this court said that it would not consider alleged prejudicial remarks of the county attorney where the defendants failed to move the court to instruct the jury not to consider such remarks, unless the remarks were fundamentally erroneous. No request was made by defendants to withdraw the remarks from the jury, and, the same not being fundamentally prejudicial, the error complained of is without merit.

The defendants next contend that the county attorney committed prejudicial error in arguing defendants’ reputation to the jury, the same not having been put in issue by the defendants. In his argument, the county attorney said,

“Defendants are honest and have high reputations among their fellow citizens—you can tell that by the number of witnesses they have brought here to testify.”

The remarks of the county attorney upon their face are not such an attack upon the reputations of the defendants as would justify a reversal of this case.

Finally the defendants contend that the court erred in improperly instructing the jury on accomplices and the necessary corroboration thereof. J. S. Coleman, a witness for the state, testified that he lived on the farm where the still was found and that he had been operating, it, making the whisky for the defendants in this case, that, when the whisky was made, the defendants came to the farm and took it away in their car, and that the defendants said they would pay witness and his wife $50 a month while the witness was in jail if he would plead guilty to the charge, and that they would pay the grocery bill while he was in jail. Mrs. J. S. Coleman testified that she was the wife of J. S. Coleman, and that she objected to her husband making liquor and using the still when it was brought out; that the defendants brought the still to the farm and set it up and aided her husband in making the liquor. Margaret Coleman, a 12 year old daughter, testified that the defendants brought the still, and that she had been there while they operated it, taken them some water, and ran down and broke the whisky when the officers came. Norman Coleman testified that he was 16 years old, the son of J. S. Coleman; that the defendants brought the still out to the place and he helped unload it and carried parts of it around.

The defendants contend that Mrs. J. S. Coleman, Margaret Coleman, and Norman Coleman were accomplices of J. S. Coleman and the defendants, and that their evidence must be corroborated before a conviction could be had. It is clear from the record that neither the wife nor the minor children were culpably engaged in the manufacture of liquor. The evidence disclosing that the ivife objected to the manufacture of liquor on the place and the part the children played was only the part a child would naturally play under the direction or coercion of their father.

The instructions of the court fairly stated the law applicable to the case. Defendants complain of other alleged errors, but they are all without merit.

For the reasons stated, the cause is affirmed.

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


text:
    R. L. SNOW v. STATE.
    No. A-6874.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 374.)

      E. V. Rakestraw, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $200 and to be confined in the county jail for a period of 30 days.

The evidence of the state is that there was a dance being held at the section house in Snyder; that witness, who was an officer, saw the lights on defendant’s car flash up, the car stop, and heard the tinkle of glass, and rushed over to the car. Defendant was down on his knees, and had a sack between his legs taking some bottles out of it. Defendant was taking the bottles and putting them in a sack and under the car. There were nine pint beer bottles of whisky under the car, four or five bottles in the back end of the car, and a flat pint bottle in the seat of the car. All of it contained whisky. The defendant was charged with possession of whisky Avith intent to sell the same.

The contention of the defendant that the evidence was insufficient to support the verdict of the jury is Avithout merit. This information Avas filed on the 13th day of September, 1924, charging that the crime was committed on the 30th day of June, 1924. More than five years has elapsed since the commission of the offense. The case Avas not brought to trial until the 9th day of September, 1927. We are unable to understand the reason for the long delay in bringing this defendant to trial. The defendant appears to be an old offenderthree separate appeals from convictions appearing upon the docket of this court.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    A. C. HANDLEY et ux. v. STATE.
    No. A-6676.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 371.)
    Joe Adwon, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance. The jury found the defendant A. C. Handley guilty as charged in the information, and fixed his punishment at a fine of $300 and confinement in the county jail for a period of 90 days. The same jury at the same time returned another verdict in which they found the defendant, Mrs. A. C. Handley guilty as charged in the information, and fixed her punishment at a fine of $50 and confinement in the county jail for a period of 30 days.

The defendants contend that the verdicts of the jury are void for uncertainty, and that the court was without jurisdiction to pronounce judgment on the same. The copies of the verdicts in the case-made indicate that the jury found the defendant A. C. Handley guilty and fixed his punishment at $300 fine and confinement in the county jail for a period of 90 days, and that the jury returned a second verdict finding the defendant A. C. Handley guilty and fixing his punishment at a fine of $50 and confinement in the county jail for a period of 30 days. Upon request of the court the Attorney General procured certified copies of the verdict in each case. Such copies show a verdict of guilty against the defendant A. C. Handley, and fixed his punishment at a fine of $300 and confinement in the county jail for 90 days; and further show that the jury returned a verdict of guilty against Mrs. A. O. Handley, and fixed her punishment at a fine of $50 and 30 days in the county jail. The verdicts of the jury against each of the defendants being regular in form and sufficient according to law, the contention of the defendants is without merit.

The evidence being sufficient to support the verdicts of the jury and the errors of law complained of being Avithout merit, the cause is affirmed.

EDWAEDS, P. J., and DAVENPOET, J., concur.


author: DAVENPORT,, J.

text:
    HERMAN WARD v. STATE.
    No. A-6892.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 372.)

      Bass & Hardy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT,, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with knowingly, willfully, and unlawfully having in his possession, mash, wort, and wash, which said mash, wort, or wash was suitable for making corn whisky; was sentenced to pay a fine of $50 and costs, and be imprisoned in the county jail for a term of 30 days; from which judgment and sentence the defendant has appealed to this court.

Ed Graunah, called as a witness on behalf of the state, testified, in substance, as follows:

“I am acquainted with Herman Ward; oh or about the 4th day of October, 1926., I was out to the defendant’s place a little south of Pooleville; Bob Short was with me; I saw the defendant and another person coming through a. corn patch; we told them we were looking for whisky; I went to where I had seen the defendant and the other party stop; Mr. Short had a flashlight; we found a barrel buried in the ground, it looked like mash; this was on a lease the defendant controlled. It was about two or three hundred yards from defendant’s house; Mr. Short went to defendant’s house and got an ax, and Avent down there and chopped around and never did get it out.”

On cross-examination witness stated he did not believe the barrel he found was a quarter of a mile from defendant’s house;

“I never measured it; I don’t know whether you can see from defendant’s house to where the barrel was located or not; it was after dark and the barrel A^as buried in the ground in some high johnson grass; I did not go to the tank of water adjoining this place; they came out of the field and we found this barrel about sundown; I don’t know whether the defendant and the other party with him had been picking cotton or not; they Avere coming to the house; Bob Short Avas with me when we went to where the barrel was found; I certainly did not know whose barrel it Avas.”

On redirect examination Avitness stated where they found the barrel—

“Was near where the defendant and party stopped; I nearly walked off in it; I don’t know whether there was cotton to the west of the corn patch; I wasn’t in the cotton patch; it Avas getting sundown, right at it, when we Avent over there; it was the first time I had been on the premises; I do not think Mr. Harris lives as close to here we found the barrel as Mr. Ward; there is a little difference; this barrel Avas found about one hundred yards from Mr. Harris’ fence and tank of water.”

The state called Bob Short, who testified:

“I am a deputy sheriff of Carter county; I know the defendant Herman Ward; I was acquainted Avith the premises on Avhich he lived last October; I made a search of the outlying premises of the defendant; we found a barrel of mash buried in the corn field northwest of the house two or three hundred yards; I looked at this mash pretty close; it was suitable for making corn whisky at the time we found it; the barrel was destroyed, most all of the mash seeped into the ground, leaving a sediment of meal in the barrel; we caved the bank in on top so it could not be used when we left it; in this corn field where we found this barrel the com had been gathered, some of the stalks were standing; I noticed folks picking cotton on the west side of this road going due west of this branch; when we found this barrel it was getting dark.”

On cross-examination witness stated there was a wire fence north of the cotton patch,

“The pasture is on the north side of that fence; the pond was west of where the barrel was found; the corn had been gathered; west of the corn patch was cotton; when I saw the defendant and the other party they were picking cotton; saw the defendant and the other party after they left the field and started to the house; in patches the johnson grass is high; the barrel was covered up six or eight inches to the top, johnson grass around it, sugar sack spread over it, and lid on. I took the top off the barrel, then cut the barrel with an ax.”

This is in substance the testimony of the state.

At the close of the state’s testimony the defendant demurred to the testimony of the state, for the reason that the same is insufficient to charge a crime against him, which demurrer was overruled, and defendant excepted. The defendant then moved the court to instruct the jury to return a verdict of not guilty, which motion was overruled and defendant excepted.

The defendant, called as a witness in his own behalf, testified in substance:

“I am twenty-one years old; I have never been convicted of a crime or paid a fine; I farm a mile and a quarter south of Pooleville, have a wife and one child; the barrel the officers claim they found was not mine; I did not know it was in the field; the day they came out there late in the evening I was picking cotton with Marion Mauldin; Mauldin is now in Burkburnett, Texas; we picked cotton that afternoon as late as we could see to pick; we had been picking in that patch a week, two days and a half; this cotton patch was west from the corn field, adjoining it; the corn field is a quarter of a mile from my house; you could not stand at my house and see a man in the corn field where the officers claim they found the barrel; my house is in a swag, there is another raise in the field by the barn; this field lays in a swag, the grass is high, and the first time I knew about the barrel in the field was when the officers came to the house to' get an ax. I never did claim this barrel or know anything about it. Mx*. Harris’ house is just as close to where they claim they found the barrel as my house, probably fifty yards closer. The barrel was one hundred and fifty feet from the pasture where there is a tank of water joining the fence just a little bit east of where the barrel was located. The corn field where they claim to have found the barrel is between my house and the cotton patch where we were picking cotton; the johnson grass in the place where they claim they found the barrel is as high as my head; at the time they claim they found this barrel of mash I had gathered my corn; the mash was not there at the time I gathered the corn or I would have found it; I don’t know to whom this barrel belonged; I did not go from the cotton patch where I had been picking cotton to where the barrel was, nor did I stop where the barrel of mash was claimed to have been found; I gathered the com a week or ten days prior to the time the barrel was found.”

At the close of defendant’s testimony Bob Short was called in rebuttal. He stated:

“There was no tracks of a wagon where the mash was located except just a down row; there was no fresh dirt on the barrel; it looked like it had been buried a week or so; the grass was around the barrel.”

This is, in substance, the testimony. The defendant has assigned six errors committed by the trial court:

“1.. The evidence is contrary to the law.
“2. The verdict is contrary to both the law and the evidence.
“3. The evidence of the State was insufficient to show any crime had been committed by this defendant.
“4. The evidence on the part of the state did not in anywise connect the defendant in any crime violation of the laws of the State of Olahoma.
“5. The court erred in overruling defendant’s demurrer to the State’s testimony, at the close of the State’s evidence.
“6. The court erred in refusing to instruct a verdict of not guilty, at the close of the State’s evidence.”

The questions to be determined in this case are: First: Is the testimony offered by the state sufficient to prove an offense has been committed? Second: Is the proof sufficient to show that this defendant committed the offense. There is no dispute between the state and the defendant that in a portion of the corn field that had been cultivated by the defendant, and after the corn liad been gathered out, the witnesses for the state found the barrel, the contents of which witnesses say was mash that was suitable for making whisky. There is no testimony on, behalf of the state showing that any of the contents of the barrel was taken out by state witnesses; the only statement being that the barrel contained mash; they did not preserve any of the contents of the barrel they found, nor did they taste it. The testimony shows that, when the officers went to defendant’s home, the defendant and Marion Mauldin were picking cotton, they picked until it was so dark they had to quit. One of the witnesses for the state testified that, as the defendant and the other party working with him started to the house, they came through the field where the corn had .been cultivated and stopped; that afterwards the state witnesses went down to about where they saw the defendant stop and found a barrel, the contents of which the witnesses say was mash. The defendant says that on their way home from where they had been picking cotton they did not stop in the field; •that he knew nothing about the barrel the state witnesses claim to have found; and that it did not belong to him, nor did he have anything to do with the barrel or its contents. There is no testimony on behalf of the state showing what is usually shown in cases of this character-tracks going to and from the home of the defendant to where it is claimed the barrel was found. The only testimony in this record that in any way whatever tends to connect the defendant with the barrel alleged to have been found by the officers is the fact that he had cultivated the land, where it was alleged the barrel was found, in corn the crop year 1926, and that the defendant was seen picking cotton near the cornfield where it is alleged this barrel was found. The defendant stated that you could not see a man where the barrel was located from his home; and that the place where the barrel was found was 150 feet from the-fence between Mr. Harris’ place and the cornfield, and adjoining the fence on the Harris side was a tank of water.

Section 1, Session Laws 1928-24, c. 42, is as follows:

“It shall be unlawful for any person, or persons, within this State, to manufacture, ferment or possess, any compound mixture, mash, wort or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the State of Oklahoma.”

Tlxe defendant in this case, by the allegations in the indictment, is charged with the possession of mash, wort, or wash suitable for making corn whisky. Viewing all the testimony in this case it is evident that the evidence does not support the verdict for the reason that the state has failed to prove any actual or constructive possession by the defendant of the barrel of mash, wort, or wash alleged to have been found by the officers. It is true that under our laws the jury is the ultimate tribunal for the investigation and determination of the questions of fact. However, if the state fails to offer any evidence tending to prove the offense charged, or whether the evidence offered tends to prove anything pertinent to the issue, is a question for the court, and, where there is no evidence tending to identify the defendant with the commission of the offense charged in the indictment, the court should direct a verdict of acquittal. Ward v. State, 15 Okla. Cr. 61, 175 Pac. 60; Kirk v. State, 39 Okla. Cr. 44, 263 Pac. 170.

The defendant should not be convicted upon mere suspicion of guilt or strong probability of guilt. All the evidence tends to show that the barrel the state witnesses claim contained mash was from 150 yards to a quarter of a mile from defendant’s house, in a cornfield from which the corn had been gathered by the defendant some days prior to the finding of the barrel. There is no evidence to show the connection of the defendant with the possession of this barrel or its contents except the fact that the barrel' was found in the field that the defendant had cultivated in corn, which tends to create a suspicion or a possibility that it belonged to the defendant. However, a verdict based upon a possibility or suspicion is not justified. There is no evidence tending to show that the defendant had any knowledge that the barrel found by the officers was in the field.

We hold that the evidence is insufficient to show that this defendant is guilty of the crime charged against him, and for that reason his demurrer should have been sustained, and the jury directed by the court to return a verdict of not guilty.

The judgment is reversed.

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


text:
    J. A. FORD v. STATE.
    No. A-6857.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 370.)
    John E. Luttrell and.Hardin Ballard, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of having possession of intoxicating liquor, and Ms punishment fixed at a fine of flOO and to be confined in the county jail for 30 days.

In the trial of the case the state offered in evidence the affidavit upon which the search warrant was obtained, to which the defendant made the following objection:

“By Mr. Luttrell: Comes now the defendant, the County Attorney having read to the jury over the objections of the defendant the affidavit for search warrant, and moves the court to instruct the jury that the statements and contents of the affidavit for the search warrant are not proper for their consideration in the trial of this case.
“By the Court: Overruled. Exception allowed.”

This court has repeatedly held that it is error for the state to read the affidavit for the search warrant and the warrant to the jury as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858.

The proper procedure is for the defendant to file a motion to suppress the evidence or object to the introduction of evidence at the time the same is offered, upon the ground that there was no affidavit or search warrant, or that the affidavit or the search Avarrant is illegal or insufficient. The court then should hear the objections out of the presence and hearing of the jury. The burden rests upon the defendant, Avhere he attacks the sufficiency of the affidavit for the search warrant, to exhibit the same to the court in support of his objections, and the court upon an examination of the affidavit and the Avarrant must summarily determine the sufficiency of the affidavit and the warrant and the admissibility of the evidence.. The presumption of laAV is that the affidaAdt and the warrant are sufficient and the search and seizure legal. If the defendant desires to attack the affidavit or the warrant he should subpoena the magistrate issuing the same to appear and produce the affidavit and warrant upon which the search was made. If they cannot be produced, defendant may offer secondary evidence of their contents.

Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained. Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785.

To permit the state to read the ex parte affidavit for the search warrant to the jury as primary evidence is to deprive the defendant of his constitutional right to be confronted by the witnesses against him. Where the state reads such affidavit to the jury, over the objections of the defendant, the cause will be reversed.

For the reasons stated the cause is reversed.

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


text:
    FRED A. RUSSELL v. STATE.
    No. A-6859.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 369.)

      J. G. Ralls, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

Defendant contends that the search warrant was illegal, because not in proper form, and that the search and seizure was therefore without authority of law. The defendant complains that, because his name does not appear in the body of the warrant immediately after the letter (a), therefore the affidavit is vague, indefinite, and void. The command in the body of the warrant is that the officer make diligent search of the premises described, and, if any of the property above described is found upon the premises or person of the said F. A. Russell, to take the same into his custody, and forthwith arrest said F. A. Russell and bring him, together with the property, before the justice of the peace at his office in Atoka in said county.

Considered altogether, the warrant directs the officer to search the premises of F. A. Russell, and, if any intoxicating liquor is found to bring such liquor and the body of said F. A. Russell before the court. The warrant is not a model, either in the description of the premises to be searched or in its form, but the failure to insert the name of F. A. Russell, the defendant, in the introduction to the warrant, is an irregularity which does not render the warrant void. United States v. Kaplan (D. C. 286 F. 963; United States v. Camarota (D. C.) 278 F. 388; United States v. Borkowski (D. C.) 268 F. 408; Boyd v. State, 195 Ind. 213, 143 N. E. 355.

The officers found 384 pints of Choctaw beer and 18 gallons in jars and kegs upon the premises of the defendant. The officers, after qualifying, testified that this beer was intoxicating. The defendant did not take the witness stand, and offered no defense., The evidence was sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


author: EDWARDS, P. J.

text:
    W. M. FINDLEY v. STATE.
    No. A-7355.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 369.)
    Jno. T. Young and Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county of the crime of arson, and his punishment fixed at confinement in the state penitentiary for a term of one year.

From the judgment of conviction, defendant appealed to this court, which appeal was perfected May 6, 1929. Since the appeal and before final submission of the cause, the defendant departed this life, as shown by motion of the attorney of record for defendant, with stipulation of the county attorney that the same is true, indorsed thereon.

In a criminal prosecution the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that plaintiff in error has died pending the determination of his appeal, the case will be abated. It is therefore ordered that the case do abate, with directions to the trial court to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.


author: PEE CUEIAM.

text:
    ALFRED RIDDLE v. STATE.
    No. A-6865.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 369.)

      Morris & Taut, for plaintiff in error.
    The Attorney General, for the State.
   PEE CUEIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a. charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $300 and to be confined in the county jail for 90 days.

The state procured a search warrant upon an affidavit insufficient upon its face to authorize the issuance of the warrant or the search and seizure thereunder.

Where the only evidence offered by the state is obtained by an illegal search and seizure because the affidavit for the search warrant is insufficient on its face, the cause Avill be reversed.

For the reasons stated, the cause is reversed.


text:
    Ex parte FRANK HALBERT.
    No. A-7619.
    Opinion Filed Nov. 8, 1929.
    (282 Pac. 478.)

      Shirk, Danner & Phelps, for petitioner.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. From the petition, the return, the evidence, and stipulated facts, it appears that petitioner was convicted in the district court of Canadian county on a charge of assault with intent to rape and was sentenced to serve a term of four years in the state penitentiary. He appealed from that judgment to this court and the judgment was affirmed. Halbert v. State, 18 Okla. Cr. 378, 195 Pac. 504. The judgment, among other things, provided that the sentence should begin upon the delivery of petitioner to the warden of the state penitentiary. Thereafter, petitioner was paroled and for some time was at liberty on the parole. .The parole was revoked and a commitment issued to the sheriff of Canadian county, where it lay for a considerable time without being executed. Petitioner was again convicted in the district court of Canadian county on a charge of theft of domestic fowls and was sentenced to serve a term of five years in the penitentiary. He appealed from that judgment to this court and the judgment was affirmed and mandate issued. Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436. Petitioner was delivered to the warden of the state penitentiary at McAlester, Okla., on November 20, 1926, on the first sentence “above referred to, that for assault with intent to rape, and the warden receipted for him. Thereafter, on December 16, 1926, the warden received the commitment on the second sentence above referred to, that of five years for theft. He receipted for the petitioner also upon that sentence, although he was in his custody on the prior sentence. Soon thereafter petitioner was booked as serving the second sentence, and upon the expiration of the time required to be served to satisfy the second sentence, he was issued a release upon that sentence. He is now being held under the commitment on the first sentence. Petitioner contends that under this state of the record the sentences ran concurrently and that both have been discharged by the service of time in the penitentiary as stated. The question presented is: Does a person sentenced to the penitentiary upon different convictions and at different terms of court, wherein the sentence provides that they shall begin upon the delivery of the person convicted to the warden of the state penitentiary, serve such sentences concurrently.

Sections 2303 and 2774, Comp. St. 1921, are as follows :

“2303. * * * When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.
“2774. * * * If the defendant [shall] have been convicted of_two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

These statutes were under consideration in the case of Ex parte Bell, 34 Okla. Cr. 354, 246 Pac. 893, citing Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284; Ex parte Ray, 18 Okla. Cr. 167, 193 Pac. 635. The substance of the holding in the Bell Case is that where a person is convicted of two or more crimes, before he is sentenced in either, the sentence in the second or subsequent conviction must commence on the termination of the first, unless the judgment and sentence in the second or subsequent conviction expressly provides that it shall run concurrently with the imprisonment for the first conviction. That is, where two or more convictions are had before sentence has been pronounced upon either, the trial court has the power to provide that the imprisonment upon the second or subsequent conviction shall run concurrently with the imprisonment upon the first. This court has nowhere held that the sentences can be made to run concurrently under any other condition. Ex parte Jess O’Daniell, 9 Okla. Cr. 720, 131 Pac. 963; Ex parte Holden, 31 Okla. Cr. 133, 237 Pac. 622; Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284; Ex parte Strader, 37 Okla. Cr. 255, 257 Pac. 1112; Ex parte Hudson, 44 Okla. Cr. 142, 279 Pac. 711.

The time fixed for the commencement of the execution of a sentence is not one of its essential elements, and. the specifying in tlie sentence of tlie time when it shall commence is in the nature of an award of execution. The essential part of the judgment is the punishment and the amount thereof, without reference to the time when it shall be executed. The time fixed for the execution isl directory and not controlling except in cases under sections 2303 and 2774, Comp. St. 1921, above quoted, where a defendant has been convicted of two or more offenses before judgment on either. The rule here applied is that of tlie common law, in substance that where the judgment and sentence is imposed for a certain term, and where from any cause the time elapses without the imprisonment being endured, it is still a valid, subsisting, and unexecuted judgment to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. The expiration of time without imprisonment is in no sense an execution of the sentence. Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Holden, supra; Ex parte Smith, supra.

The only authority for concurrent sentences under our law must be derived from sections 2303 and 2774, Comp. St. 1921, supra. The power is granted the trial court on the conditions therein named. In all other cases the sentences are consecutive. This case does not fall within the terms of the statute, and the sentences therefore must run consecutively.

The warden of the penitentiary did not follow the proper practice in this case; when petitioner was received at the penitentiary, under the commitment issued upon the first conviction, the assault with intent to rape case, he should have been rebooked upon that charge. When the commitment upon the second conviction, the theft ease, was received, he should have been booked upon that charge to begin upon the expiration of the charge in the prior case. In Ex part Smith, supra, it was said:

“Where there are a series of convictions and judgments thereon, the accused should be incarcenated upon the first conviction for the period of imprisonment therein named, followed by confinement for the fine and costs named, in the event the same are not paid; at the end of that period of confinement, the imprisonment named in the judgment upon the second conviction and imprisonment for the fine and costs therein, would begin and terminate in like manner, and so on.”

The petitioner in this case is entitled to credit upon the sentences imposed for all the time since he was delivered to the warden of the penitentiary. Time should be applied first to the satisfaction of the fine and costs under the first conviction upon which he was received, the assault with intent to rape case. After that sentence has been satisfied, the additional time served by him should be applied to the satisfaction of the judgment in the second case, the theft case, and the books of the penitentiary should be corrected accordingly.

It being evident that the sentences in the two cases have not been satisfied, the writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    FRED HAYNES v. STATE.
    No. A-6416.
    Opinion Filed Feb. 23, 1929.
    Rehearing: Denied Nov. 16, 1929.
    (284 Pac. 74.)

      A. O. Manning, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error,, hereinafter called defendant, was convicted in the district court of Major county of selling whisky to minors, and was sentenced to serve five years in the state penitentiary, and to pay a fine of $500.

The record discloses that the evidence for the state is that, at the time charged, defendant sold one quart of whisky to two young men under the age of 21 years. Defendant denies this, and offers considerable testimony in his defense. The controverted question of fact was for the jury, and there is ample evidence to sustain a verdict of guilty.

It is first argued that the information is insufficient, in that it charges a sale to Orange Bolson and Fred Gifford, and does not allege that the sale was made in one and the same transaction. It would have been better pleading to have included this allegation in the information, but the information as a Avhole discloses that only one transaction is pleaded. The contention therefore is not tenable.

It is next argued that there is no proof that the whisky alleged to have been sold Avas intoxicating liquor or contained as much as one-half of 1 per cent, of alcohol, measured by volume. Where a violation of the prohibitory law is charged, involving intoxicating liquors, such as wine, beer, whisky, or alcohol, or other liquors per se intoxicating, this allegation is not necessary. It is only in cases where the offense sought to be charged involves liquors not made by any standard formula or not per se intoxicating, such as “jake,” “choctaw beer,” etc., that the allegation is necessary. Phelps et al. v. State, 36 Okla. Cr. 213, 253 Pac. 910; Rouney v. State, 32 Okla. Cr. 111, 240 Pac. 142; Coleman v. State, 39 Okla. Cr. 149, 263 Pac. 676; Crouse v. State, 39 Okla. Cr. 127, 263 Pac. 681; Rysinger v. State, 40 Okla. Cr. 159, 267 Pac. 686.

Complaint is next made that the court erred in restricting defendant in his examination of a juror on his voir dire. While examining the jury, counsel asked one juror if he was a member of the Ku Klux Klan. The court interposed, and informed the juror he might answer or refuse. The juror refused. This was error. It has been several times held by this court and by the courts of various of the other states that liberal latitude should be given the defendant in the examination of jurors that he may ascertain if there are grounds for challenge for either actual or implied bias and to enable him to intelligently exercise his peremptory challenges. Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733; Johnson v. State, 28 Okla. Cr. 254, 230 Pac. 525; Menefee v. State, 30 Okla. Cr. 400, 236 Pac. 439; Grim v. State, 32 Okla. Cr. 297, 240 Pac. 1093.

It is next argued that counsel assisting the state 'was guilty of misconduct prejudicial to defendant. There Avas very serious misconduct on the part of special counsel for the state in this particular, Avhich should have been stopped by the trial court, and counsel should have been rebuked. Upon this assignment of error, the state bas confessed error as follows:

“* * * Besi(jeg the error of the trial court in denying defendant’s counsel the right to ask this question for the purpose of exercising a peremptory challenge as to that particular juror, a ground for reversal urged is that special counsel for the state was permitted over the objection and exception of the defendant to make certain prejudicial remarks in its closing argument to the jury. Counsel for the defendant has set out the remarks complained of at length in the brief filed in behalf of the defendant, and among such remarks Ave find the following:
“ ‘The officers would not ask for this penitentiary sentence if they did not know what they were doing, if this man had not been escaping their clutches for years and years., they wouldn’t ask for it.’
“And again:
“ ‘The officers have done everything in their power to convict this fellow, they have finally got him where they want him, they have got a case against him that is going to break into that ring of bootleggers, if you men do your duty. Every one of us are asking that you give him the limit, five years. * * *’
“The foregoing remarks were entirely uncalled for; there was no evidence as to the defendant’s character and reputation as a bootlegger; his character was not put into issue, and counsel had no right to go outside of the record and indicate to the jury that the defendant was an old offender, and that the officers knew what they wére doing and wanted him to get the limit of five years.
“Other excerpts from the remarks of the special counsel are called to the attention of this court, which said excerpts are evident appeals to the passion and prejudice of the jury and certainly must have operated to obtain for the state the extreme penalty of the law in this case.
“The Attorney General is convinced after reading, the record, that this defendant is guilty, and that he should not entirely escape punishment because of these apparent errors committed during the trial.
“It is the opinion of the Attorney General, therefore, that this judgment of conviction should be modified because of these errors instead of being reversed because it is apparent, the Attorney General thinks, that another trial, if it be a fair and impartial one, could not result in any verdict except that of guilt. To what extent the judgment should be modified is a matter, of course, for the discretion of this court after considering the entire record. The penalty, however, in the opinion of the Attorney General should not be modified by. reducing same to the minimum punishment allowed by law. This defendant should either receive a penitentiary sentence or at least, a severe jail sentence in addition to a fine.”

The record discloses that defendant is guilty, but, on account of the errors complained of, justice requires that the case be either reversed or the punishment assessed materially reduced. Speedy and substantial justice will be done by reducing the punishment to confinement in the state penitentiary for a term of one year and to payment of a fine of $500.

As modified, the case is affirmed.

DAVENPORT and GHAPPEND, JJ., concur.


text:
    LEE GRAHAM v. STATE.
    No. A-6826.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 695.)
    Douglas Allen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Lee Graham, plaintiff in error, hereinafter called defendant, was jointly charged with Otto Childs in the district court of McCurtain county, Okla.,, of the larceny of 1,900 feet of pine logs, the property of the Choctaw Lumber Company, of the value of $9.50. On the joint trial the county attorney, after the evidence was all in, dismissed the case as to Childs. The jury returned the verdict finding the defendant guilty as charged and assessing his punishment at a fine of $25. The judgment was rendered in accordance with the verdict, and the appeal appears to be properly perfected to this court.

The testimony on the part of the state shows that this defendant who was running a small sawmill in Mc-Ourtain county took three logs of a certain pine tree located on the W. S. E. *4, S. E. :14; section 24, township 5, range 23, in McCurtain county, which particular logs were the property of the Choctaw Lumber Company.

There is a sharp conflict in the evidence in this case. It was for the jury to reconcile these conflicts and to determine which witnesses to believe and which not to believe. If the jury believed the evidence offered by the state, this conviction is sufficiently sustained by the evidence. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

It is next contended that the trial court erred in permitting the name of the witness, John Craig, who testified for the state, to be indorsed on the information after the trial began. This court has repeatedly held that it is a matter within the discretion of the trial court to permit the name of additional witnesses to be indorsed on the information after the trial begins. Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334; Bradshaw v. State, 16 Okla. Cr. 624, 185 Pac. 1102. No abuse of discretion is shown in this record in permitting the witness Craig to testify.

It is next contended that there was error in permitting the witnesses, Parks and Moreland, to testify for the state without their names being indorsed on the information. It is a sufficient answer to this charge to state that no objection was interposed to the giving of testimony on the part of either of these witnesses. The failure of the defendant to object and except to the action of the trial court in permitting these witnesses to testify, if their names were not indorsed on the information, was waived by the failure to object and except. Lloyd v. State, 15 Okla. Cr. 130, 175 Pac. 374; Cardwell v. State, 20 Okla. Cr. 177, 201 Pac. 817.

Finally it is contended that the trial court erred in excluding certain evidence on cross-examination of the witness Craig, which had for its purpose the development of the fact that said witness was prejudiced against the defendant. An examination of the record discloses that there is no showing of what this witness would have testified to had he been permitted by the tidal court to answer the questions propounded to him. The record therefore presents nothing for this court to pass upon. Warren v. State, 6 Okla. Cr. 2, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Francis v. State, 22 Okla. Cr. 287, 211 Pac. 433.

The evidence in this case was sufficient to support the verdict of the jury. The error of law complained of not being fundamental, the cause is affirmed.

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


text:
    ALICE FRAZER v. STATE.
    No. A-6820.
    Opinion Filed Nov. 16, 1929.
    Rehearing Denied Nov. 30, 1929.
    (282 Pac. 375.)

      William Blake, Ed Crossland, and J. Earl Smith, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of the crime of burglary and was sentenced to serve a term of four years’ imprisonment in the state penitentiary. The information charged the burglarizing of the house of one Lucy Eisiminger by unlocking an outer door thereof and entering therein in the daytime with intent to steal personal property in said residence.

The complaining witness, Lucy Eisiminger, an Osage Indian, left her home near White Eagle for a few days to visit friends in Osage county. While she was absent, her home was burglarized and a large amount of household goods taken. Later the said Lucy Eisiminger was a guest at the home of the defendant, and while in the home discovered a large part of the missing articles from her home in the home and possession of the defendant. She then went to the county seat, made complaint, and obtained a search warrant for the premises of the defendant, and upon the search being made the officers found most of the property stolen from the complaining witness in the home and possession of the defendant.

The defendant first said that she had bought the goods from an Indian boy, but later claimed that the husband of Lucy Eisiminger had pawned the goods with her for a small loan. The undisputed evidence of the state was that the defendant was seen in and about the home of the complaining witness during her absence from her home and the stolen goods were found in the defendant’s possession.

The defendant first contends that the conviction is based on evidence obtained by a search of defendant’s residence under an invalid search warrant. It appears from the record that the search warrant was in form almost identical with that held to be invalid in the case of McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307. The evidence secured under the search warrant was inadmissible, but this conviction does not rest upon the evidence procured by the search made under this search warrant. There is ample evidence to support the conviction of burglary even entirely discarding the improper evidence of the possession by the defendant of recently stolen goods. This is not a conviction for larceny, and the possession of stolen goods by defendant was only a circumstance tending to prove that she was the one who broke into complaining witness’ house. The fact of the breaking into was conclusively proven by the testimony of the witnesses Cline and Ullry, who testified positively to seeing the defendant use a key, open the door, and go into the house of the complaining witness. The defendant did not take the witness stand to deny her presence in the home of complaining witness in her absence. It is not disputed that the defendant did enter the locked house as alleged in the information. Defendant says that she was taken there for the purpose of looking at the house with a view of renting it, and attempts to explain her possession of the goods of complaining witness by testimony of witnesses other than herself, to show that Earl Eisiminger,, the ex-husband of the complaining witness, brought them to her house and pawned them to her for a loan of $10. None of the witnesses offered by the defendant were able to identify the property claimed to have been stolen as the same property which defendant claimed was left with her as security for the loan. At the time the complaining witness found the property in the home of the defendant, the defendant made no statement that she had loaned any money on the property, but did tell the officers when they came to search the premises that she had bought the property from an Indian.

This court has repeatedly held that the admission of incompetent evidence does not necessarily result in a .reversal of the judgment. The rule is stated as follows in Williamson v. State, 19 Okla. Cr. 427, 200 Pac. 461:

“Evidence improperly admitted, on a mistaken theory of the case, will not be held reversible error where no miscarriage of justice resulted and defendant was not deprived of some constitutional or statutory right thereby.”

There is another reason Avhy this conviction should not be reversed because of the admission of alleged incompetent evidence. It is this: The fact of possession by defendant of some of this property was first proven by competent evidence. The complaining witness testified that she saw some of this property in defendant’s house and in her possession on the night before the search warrant was issued.

In the case of Cahn v. State, 10 Okla. Cr. 200, 135 Pac. 1155, this court said:

“When the record discloses the fact that the court has improperly permitted a witness to testify to facts which are conclusively proved by documentary evidence, although it is error, this court will not reverse a judgment when it is clear that no injustice resulted therefrom.”

In the case at bar the possession Avas not only tacitly admitted, but first proven by competent evidence, and cumulative evidence on that point, even if improperly admitted, cannot be said to have deprived the defendant of a fair trial. Defendant’s counsel have argued no other alleged error in their brief. The evidence of guilt of the defendant is so conclusive that there is no reason to believe that another trial, even with the alleged incompetent evidence kept from the jury, would result in any different verdict.

For the reasons stated the cause is affirmed.

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


author: PER CURIAM.

text:
    ROY KITZMILLER v. STATE.
    No. A-7233.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Dec. 16, 1929.
    (282 Pac. 1117.)
    Joe Adwon, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Canadian county on a charge of selling whisky, and was sentenced to pay a fine of $250 and to serve 90 days in the county jail.

The judgment was rendered on the 24th day of September, 1928, and the appeal was lodged in this court on the 1st day of December, 1928. No briefs in support of the appeal have been filed. The evidence sufficiently sustains the judgment. No prejudicial error is made to appear.

The case is affirmed.


text:
    TOLBERT MOORE v. STATE.
    No. A-7126.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 23, 1929.
    (282 Pac. 1117.)
    S. R. Harper, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Comanche county on a charge of having the unlawful possession of intoxicating liquor as a second and subsequent violation of the liquor law, and was sentenced to serve a term of three months in the state penitentiary at Granite, Oklahoma.

Judgment was rendered in February, 1928, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed. The evidence sustains the judgment. No material error is made to appear.

The case is affirmed.


text:
    A. B. CRAIGHEAD v. STATE.
    No. A-6902.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 476.)

      Thomas Norman, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county upon an information charging him with the crime of unlawful possession of mash which Avas then and there fit and suitable for distillation of intoxicating, liquor, to wit, whisky and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The defendant contends that the evidence of the state Avas wholly circumstantial, and that the court erred in refusing to give defendant’s requested instruction on circumstantial evidence, which reads as follows:

“Defendant requests the Court to instruct the jury that the evidence herein against the defendant is circumstantial, and before you Avould be justified in returning a verdict of guilty, you must find and believe that all the facts and circumstances admitted for your consideration are consistent Avith each other and with the guilt of defendant, and absolutely inconsistent with the theory of defendant’s innocence.”

The requested instruction did not correctly state the laAV. The court on its own motion gave an instruction on circumstantial evidence. This instruction also is not a model, but it sufficiently states the law as applicable to the facts in the case. The refusal to give requested instructions will not be held to be reversible error unless in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. Highfill v. State, 26 Okla. Cr. 420, 224 Pac. 729.

The defendant groups the balance of his errors complained of under the proposition that the evidence is insufficient to- sustain the verdict. The jury are the exclusive judges of the weight, of the evidence and of the credibility of the witnesses. If there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, the determination of the jury will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The evidence in this case was sufficient to establish the guilt of the defendant beyond a reasonable doubt. The errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    NORMAN LOLLAR v. STATE.
    No. A-6890.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 476.)

      H. A. Johnson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county on a charge of having possession of one-half pint of whisky with the unlawful intent to barter, sell, give away, or otherwise furnish the same, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

The evidence discloses that the chief of police of the city of Perry, with one Donald Taylor, drove up to the American Hotel in a car; that the defendant was sitting on a bench in front of the rooming house, and when the officer stopped his car the defendant started to run; that after running 40 or 50 feet from the officer he broke the half-pint bottle by throwing it on the pavement. Both witnesses smelled of the wet spot caused by the breaking of the bottle on the pavement and testified that it was whisky.

The proof of the possession of a half-pint of whisky is insufficient to raise the presumption of intent to barter, sell, or give away the same. The state failed utterly to show any intent to sell or give away any of the liquor possessed. The proper charge in this case should have been transportation of intoxicating liquor.

The evidence is insufficient to support the verdict of the jury. The case is reversed.


text:
    W. M. SUGGS et al. v. STATE.
    No. A-6828.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 477.)
    Chas. E. Wells and Chapman & Chapman, for appellants.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Pottawatomie county on a charge of having possession of 11 gallons of beer, and were sentenced as follows: W. M. Suggs to pay a fine of $200 and be confined in the county jail for 30 days; Leo Drake to pay a fine of $100 and be confined in the county jail for 30 days; George Alexander to pay a fine of $50 and be confined in the county jail for 30 days.

The evidence discloses that 11 gallons of beer were found in a barn on a farm owned by W. M. Suggs; said farm being rented at the time to defendant Leo Drake. George Alexander was hired by Suggs to look after his stock and tools on the farm where the liquor was found. One Mathew Ratliff, who was arrested with these defendants, pleaded guilty to making the home brew, placing it in the barn, and testified that these defendants had nothing to do with it and did not know anything about it. There is no evidence whatever in the record to show that these defendants knew the beer was in the barn and no evidence connecting these defendants with having possession of the beer. The evidence is wholly insufficient to sustain the judgment.

The case is reversed.


text:
    JOHN DAVIS v. STATE.
    No. A-6894.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 477.)
    Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The evidence of the state was that the officers saw the defendant with three women driving about the streets of Ardmore in a Pierce-Arrow coupe. They followed him several blocks to where the car was stopped on a viaduct. As the officers came up, the defendant was standing beside the car with a bottle of whisky in his hand, and was drunk. One of the officers took the bottle of whisky out of his hand and arrested him, and the other officer, searching the car, found a pint of whisky on the seat in the car. Defendant denied that the whisky was his or that the knew it was in the car.

The defendant first contends that the search of the car was illegal and the evidence so obtained inadmissible. The charge against the defendant was transportation of intoxicating liquor. The defendant, being intoxicated on the public street and having the pint of whisky in his hand in open view of the officers, was committing such an offense in the presence of the officers as would authorize the seizure of the bottles of whisky, the arrest of the defendant, and the search of his car. Martin v. State, 43 Okla. Cr. 273, 277 Pac. 950.

Defendant complains of other errors, but they are without merit. For the reasons stated, the cause is affirmed.

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


text:
    J. L. BARRETT v. STATE.
    No. A-6877.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 480.)
    J. E. Burns, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of having possession of 14 gallons of whisky, 7 gallons of alcohol, and 3 gallons of wine, and was sentenced to pay a fine of $150 and be confined in the county jail for a period of 90 days.

When the state rested, the defendant demurred to the evidence as being insufficient to support the allegations of the information. At the time the demurrer was presented, the defendant did not point out the particular fact wherein the state had failed to prove its case. In the brief, defendant argues that the state failed to prove the venue. It appears from the record that the state offered no evidence fixing the venue of the crime in Kay county.

In the case of Popp v. State, 44 Okla. Cr. 145, 279 Pac. 975, this court said:

“Where there is no evidence of venue in the record either direct or circumstantial nor evidence from which the court may take judicial notice that the crime charged was committed in the county alleged, the case will be reversed.”

The state having failed to prove venue, it was error for the trial court to permit the case to go to the jury.

For the reasons stated, the cause is reversed and remanded, with instructions to proceed with the trial of the case according to law.

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


text:
    F. B. McNEW v. STATE.
    No. A-7062.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 480.)
    Paul R. Haunstein, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Garfield county on a charge of manufacturing a still and was sentenced to pay a fine of $500 and to serve 180 days in the county jail.

Judgment was rendered on February 10, 1928, and the appeal was lodged in this court on June 13, 1928, more than 120 days after the rendition of the judgment. Under section 2808, Comp. St. 1921, the extreme limit within which an appeal for a conviction for a misdemeanor may be filed in this court is 120 days. The appeal not having been filed within such time, this court does not acquire jurisdiction, and the attempted appeal will be dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    RIDDLE ORUM v. STATE.
    No. A-6879.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 899.)
    Thomas Norman and Champion, Champion & Fischi, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was jointly informed against with Bill Orum, Orville Shrader, Alva Welch, Jim Hoekersmith, Arnold Cornelison, Pat Orum, and Dwight Davis; was tried separately, convicted, and sentenced to imprisonment in the state penitentiary at McAlester for a term of five years. Record was saved, and the defendant has appealed to this court.

After the jury was impaneled, the state called A. W. McCord as its first witness, who stated that he was a gauger for the Roxanna Petroleum Company; that he drove a car belonging to the Roxanna Petroleum Corporation to Wilson on the 24th day of August, 1926, and parked on the main street near the Hub Restaurant; about 9 o'clock that night he returned to get the car and it was gone. The car had Red Top Fisk casings on it. They were 30x3% oversized. The defendant objected to the introduction of the testimony and moved the court to strike the same because the complaint alleges the Roxanna Petroleum Company and the proof shows it was the Roxanna Petroleum Corporation. The county attorney then asked to amend the information by substituting the word “corporation” instead of “company,” to which the defendant objected, and the court permitted the amendment to be made to the information, showing that the car alleged to be stolen was the property of the Roxanna Petroleum Corporation.

E. A. Stallings was called by the state, and testified that one of the casings issued to the witness McCord for use on this automobile was R. C. 1900-904; that the engine number on the car was 13,043,601; that the car had a peculiar kind of battery box on it, and that after the car had been stolen Dan Blackburn brought back the front axle, body, and storage battery, together with some Roxanna seals., The witness further testified that of the things brought back by Dan Blackburn he thought he recognized the battery box, which was identical with 15 or 20 other battery boxes specially constructed by Mr. McGhee, their carpenter, for the Roxanna Petroleum Corporation.

Arthur Smith testified, in substance, to being an employee of the Lone Star Gas Company;

“On August 26, I discovered a 1926 Ford roadster about two miles southwest of the Lone Star Camp; it had been partially destroyed by burning; I told Dan Blackburn about this; when I found the car it had a motor in it; when Dan Blackburn came out to look at the car the motor had been removed; I had no way of telling whether this car was the car that had. been stolen from the Roxanna Petroleum Corporation or not.”

Arnold Cornelison, called as a witness for the state, and who was one of the defendants informed against, stated that Jim Hockersmith went to Lebanon, Okla., to attend the funeral of his brother, which was some time the latter part of the month of August; after the funeral Hockersmith returned to his home in Carter county;

“Pat Orum, Riddle Orum, Bill Orum, Orville Shrader, and myself stayed at Jim Hockersmith’s house that night; early the next morning a man by the name of Alva Welch came; shortly after he came up Pat Orum and Jim Hockersmith left to get some groceries and returned with Riddle Orum and Alva Welch; when they left they were driving a stripped down racer automobile driven by Riddle Orum; when they returned they brought with them a Ford car motor, the rear end and front axle of a car; Riddle told me he would give me a dollar to take this rear end and front axle and unload it from the car west of the Hockersmith house; shortly thereafter I took the rear end and front axle and unloaded them. Bill Orum, Pat Orum, and Riddle Orum took the car motor which they had brought to Hockersmith’s house away with them.”

Dan Blackburn testified, in substance, that he was a special officer for the Roxanna Petroleum Corporation;

“A few days after the theft of the car in question, I Avas sliOAvn an automobile out northAvest of Healdton; the car Avas a 1926 model Ford roadster, Avhich had been burned; there were no casings On the car, and the motor had been removed as Avell as the rear end and front axle; near this burned car we found some fresh car tracks, and followed them five miles to thé Hockersmith home; in the ashes of the partly destroyed car I found some Roxanna Petroleum Corporation seals; I searched the Hockersmith premises, and in a spring some 100 yards from the house I found the rear end, and about 100 yards south of there the front axle and the wheel of a Ford; I found a Ford motor about 2% miles from the defendant Riddle Or urn’s house, two days later, and on one of the wheels of Riddle Orum’s car I found a Red Top Fisk casing No. B. C. 1900-904.”

Ike Wright testified that he and A. D. Smith found the burned car on the road and advised Dan Blackburn of its whereabouts.

A. W. McCord was recalled, and stated he saw the body of the car which Mr. Blackburn brought in, and that it resembled the body of the car that had been taken without the knowledge or consent of any one connected with the company; that he saw some Roxanna Corporation seals that Mr. Blackburn brought back, and they were the same kind of seals he had used as gauger for the company, and the same kind of seals he had with him at the time the car was stolen.

George Shrader testified that some time in August or September Dan Blackburn and Bob Short came to his house and examined a Red Top Fisk casing on a stripped down Ford that belonged to the defendant Riddle Orum.

Bob Short testified he was a deputy sheriff of Carter county; that while investigating the theft of the Roxanna Petroleum Corporation car he found a green stripped down racer car, the property of the defendant Riddle Or-um, which had a Red Top Fisk casing on the left wheel, numbered B. C. 1900-904; in the car was a battery box and motor hanger.

E. A. Stallings, recalled, testified that the casing number which he testified in his former testimony should be B. C. 1900-904, instead of R. C.

The state further showed by testimony that the number on the motor had been changed and other numbers placed on the car.

At the close of the testimony of the state, the defendant demurred to the testimony, his demurrer was overruled, and defendant saved an exception.

He then requested the court to instruct the jury as follows:

“You are instructed to. return a verdict of not guilty,” which instruction was refused, and defendant saved an exception. The defendant did not offer any testimony.

We will consider the assignments of the defendant we deem necessary to consider, as they appear in the petition in error. In his first assignment the defendant insisted that the court erred in overruling his objection to the introduction of any evidence under the information; second, that the, court erred in overruling plaintiff in error’s objection to the introduction of any evidence to the effect that the automobile claimed to have been stolen was the property of the Boxanna Petroleum Corporation; and, third, that the court erred in overruling his objection to the county attorney amending the information during the trial of the case, after the jury had been impaneled and the presenting of the evidence commenced.

An examination of the information shows that it charged the owner of the automobile alleged to have been stolen to be Boxanna Petroleum Company; when the state began to take its testimony its first witness stated that the property belonged to the Boxanna Petroleum Corporation; when this was discovered the defendant objected to the taking of any testimony, for the reason that the proof did not conform to the allegations in the information, and he now urges that the action of the court in permitting the state to amend the information by charging the ownership of the property to be in the Boxanna Petroleum Corporation instead of the Boxanna Petroleum Company was an error—the amendment being, the word “company” was stricken out and the word “corporation” substituted.

Section 2560, C. O. S. 1921, is as follows :

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

Under the provisions of section 2560, supra, we do not think the court erred in permitting the county attorney to amend the information by striking out the word “company” and inserting the word “corporation,” as the defendant was not deceived thereby. The amendment, we think, did not prejudice the rights of the defendant and did not deprive him of having a fair and impartial trial. Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871, and other cases therein cited.

It is contended by the defendant that the court erred in overruling his motion to withdraw his announcement of ready for trial after the amendment to said information, and allow the plaintiff in error further time in which to plead, for the reason that said amendment came as a surprise to the plaintiff in error. We think this contention is without merit, as there is nothing in the record to show that the defendant was in any way whatever prejudiced by the amendment.

The fifth and sixth assignments relate to the action of the court in overruling plaintiff in error’s demurrer to the evidence, and refusing to direct the jury to return a verdict of not guilty. This court has held many times that when there was any evidence upon which the jury could base a verdict,.this court would not reverse the judgment on account of the insufficiency of the evidence. The question as to the weight of the evidence is a question for the jury, and we think that the evidence on behalf of the state, if believed by the jury, was sufficient to sustain a conviction.

In the case of West v. State, 19 Okla. Cr. 355, 198 Pac. 99, 100, this court laid down the following rule:

“The rule in this state is that the presumption arising from the possession of recently stolen property, to wit, that the possessor is the thief, is one of fact, and not of law. If the possession is unexplained, or is unsatisfactorily explained, the evidence is sufficient to sustain a conviction for larceny, the inferences arising from such possession being for the jury to determine.”

In this case the testimony shows that the defendant was in possession of one of the casings that was on the car when it was taken, and that within a short distance from his home a motor was found, and that he hired the witness Cornelison to take certain parts of the car and throw them away at the Hockersmith home. This evidence was before the jury under the proper instructions of the court.

In Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272, in the second paragraph of the syllabus, this court said:

“Where there is evidence from which the jury may reasonably and logically find the defendant guilty of the crime charged, in the absence of unusual circumstances, this court will not set aside' the jury’s verdict on account of insufficiency of the evidence.”

In Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323, this court said:

“Where the evidence is conflicting, and that in behalf of the prosecution such that if believed by the jury a verdict of guilty should result,, a judgment of conviction will not be reversed on the ground that the verdict is contrary to the evidence.”

After a careful examination of the evidence contained in the record, we hold that there is sufficient testimony to justify the jury in returning a verdict of guilty. Upon an examination of the other errors assigned, they are not of sufficient merit to warrant the court in reversing the case.

The judgment is affirmed.

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


text:
    DICK DRIGGERS v. STATE.
    No. A-6848.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 16, 1929.
    (281 Pac. 982.)
    Ray & Thomas, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having unlawful possession of a still, and his punishment fixed at a fine of $350 and to be confined in the county jail for a period of 180 days.

The defendant complains, first, that the information was insufficient to charge an offense. Defendant was informed against under section 2, chapter 42, Session Laws 1923-24, which reads as follows:

“It shall be unlawful for any person to keep, or have in his possession, or knowingly permit any other person to keep, or have in possession upon any premises under the ownership or control of such first party, any still worm or still, without that he first register the same with a proper United States officer and obtain from said officer a certificate of said registration and that he also first file said certificate of registration or a certified copy thereof with the county clerk of the county in which said worm or still is located, and it shall be unlawful for any person to set up to be used as a distillery a still worm or substitute therefor, whether kettle, washpot, metal tank or any other vessel of any kind, whether for the purpose of using same, or which after being set up, may be used for the manufacture, production or fermentation of distilled spirits, or liquor, the sale, barter or giving away of which is prohibited by the laws of the state of Oklahoma. It is the duty of each county clerk in Oklahoma to file said registration certificate or certified copy thereof upon the presentation of the same in the same manner and for the same fees as chattel mortgages.”

Under this act the state might elect to prosecute for the possession of any still worm or still without having registered the same as required by the act, or it might prosecute for setting up, to be used as a distillery, a still worm or substitute therefor which, after being set up, may be used for the manufacture, production, or fermentation of distilled spirits or liquor without registering the same as required by the act.

The state elected to prosecute the defendant for the possession of a still without having registered the same. The information was sufficient to charge the offense, and it was not necessary to allege that the still worm or still was capable of being used for the manufacture of intoxicating liquor.

The defendant next contends that the court erred in overruling his application for a continuance. The ground set up for such continuance was that the defendant had been shot in the hand on the 20th day of August. The cause was called for trial on the 13th day of September. The trial court held the showing insufficient to require a continuance of the case. The granting of a continuance is within the sound discretion of the trial court, and the action of the trial court in overruling an application for a continuance is not ground for a reversal of the case, unless it appears from the record that the trial court abused its discretion in refusing to grant the continuance. Worley v. State, 42 Okla. Cr. 243, 275 Pac. 398.

There is nothing in the record to indicate an' abuse of discretion on the part of the trial court in refusing to grant the continuance. The evidence offered by the state was such that no honest jury could have returned any verdict except guilty.

For the reasons stated, the cause is affirmed.

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


text:
    FRANK DUNKIN v. STATE.
    No. A-6931.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 692.)
    Brown Moore and Guy L. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson., Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff .in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of larceny of seven chickens, and his punishment fixed at a fine of $200.

The defendant complains that the court erred in denying him his statutory time in which to plead. The record discloses that an amended information was filed on the 28th day of September, 1927; that defendant was arraigned on the 4th day of November, 1927, at which time he demanded his statutory time in which to plead, which demand was denied by the court. The defendant then demurred to the information which was overruled, and the cause proceeded to trial to a jury. The defendant was found guilty, and his punishment fixed at a fine of $200.

Section 2595, C. O. S. 1921, provides as follows:

“If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.”

In the case of Schlumbohm v. State, 5 Okla. Cr. 36, 113 Pac. 235, this court said:

“When a defendant is arraigned on a felony charge, lie is entitled to a day in which to plead, * * * if he demands it, and it is error to refuse it.”

In the case of Bohannan v. State, 11 Okla. Cr. 69, 142 Pac. 1092, this court said:

“The filing of an amended or a new information is the beginning of a new case, and the accused is always entitled to the statutory time in which to plead. This is a plain statutory essential and cannot be denied when it is claimed in due time.”

Under section 2595, C. O. S. 1921, it was mandatory upon the court to grant the defendant until the next day to plead, where timely demand was made. The right to time to plead being a statutory one could be waived by the defendant and is waived where the defendant demurs to the information or challenges the array of jurors or moves to quash or files a plea in abatement. Clark v. State, 29 Okla. Cr. 243, 232 Pac. 953; McCord v. State, 2 Okla. Cr. 209, 101 Pac. 135; Ray v. State, 40 Okla. Cr. 413, 269 Pac. 509.

In the case at bar the defendant did not waive his right to time to plead. The record shows that when the defendant was arraigned that he demanded the statutory time to plead, and that this demand was denied by the court and the defendant, over his objections, was forced to trial on the day he was arraigned.

The defendant having been deprived of his statutory right to time to plead, the cause is reversed and remanded, with directions to the trial court to arraign the defendant, grant him his statutory time to plead, and proceed with the. trial of this case according to law.

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


author: MAS SINGALE, Special Judge.

text:
    PEARL FORRESTER v. STATE.
    No. A-5741.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 682.)
    E. L. Mitchell and Meacham & Meacham, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen.., for the State.
   MAS SINGALE, Special Judge.

The plaintiff in er-x’or, hereinafter called defendant, and Ralph Forrester were informed against in the superior court of Custer county, Olda., for having murdered one Oakley Sturgis. There was a severance had of the two cases. This defendant was tried and found guilty of manslaughter in the first degree and his punishment fixed at imprisonment in the state penitentiary for a term of ten years. From the judgment of the court the defendant has appealed to this court.

In the trial court the defendant took exception to certain instructions which he claimed were prejudicial to him, and by reason thex’eof he contends that the court committed error and he did not have a fair and impartial trial.

He particularly complains of instructions numbered 1, 11, 12, 13, and 14. In the instructions mentioned the jury were advised that the commission of the homicide by the defendant had been proven, or admitted, and that the defendant claimed as a justification of the homicide he acted in his self-defense, and the court then proceeded to instruct the jury on the law of self-defense as applicable to such a plea on the part of the defendant.

There is no objection to the form of the instructions on the theory of self-defense, but there is objection to the applicability of the instructions, based upon the ground that there was not a particle of evidence either that the defendant admitted the killing or that lie tried to justify it as having been done, in his self-defense.

We have carefully read the record in this case and are uxiable to find anything which shows that the defendant set up any defense by way of excuse for or justification of the homicide. In fact, he denied that he committed the act and that was his sole defense, and it occurs to us that a correct decision of this case depends upon the question as to whether or not the defendant may have been prejudiced by the charge given.

“It is error in a court in a homicide case to give to the jury instructions Avhich are not relevant to the evidence and which may mislead the jury to the prejudice of the defendant.” Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

In the above case the eAddence showed that the homicide took place at the defendant’s house, and in instructing the jury the court used the phrase, “if the defendant was where he had a right to be” in several of the different instructions, and this court held such instructions to be erroneous and prejudicial to the rights of the defendant, and stated that it Avas the duty of the trial court to tell the jury that the defendant was where he had a right to be and should not have left that question to be determined by the jury. of mitigation or excuse devolved on him, since it was not applicable to the case.” People v. Tapia, 131 Cal. 647, 63 Pac. 1001, 1002.

“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 pleadings and testimony.” Kirk v. Territory, 10 Okla. 46, 60 Pac. 797, 798.
“* * * Although an instruction may state a correct principle of laAV, if it is not based upon and in conformity Avith the issues or facts raised or supported by the eAddence it is erroneous, especially where defendant has been or may be prejudiced thereby. * * *” Text, 16 C. J. § 2485, p. 1043.
“Where, in a prosecution for murder, defendant’s sole defense was that he did not commit the act, it was error to instruct that, the commission of the homicide by defendant being proved, the burden of proving circumstances

It is conceded that the instructions given embody correct propositions of law applicable to pleas of self-defense, but such instructions were not relevant to the evidence and were not based upon or in conformity with the issues in the case, and we are to determine whether or not the defendant was prejudiced thereby. When the trial judge told the jury that the homicide had been admitted by the defendant and that the burden of proving circumstances of mitigation or excuse devolved on him, we think it was prejudicial. As stated above the defendant did not undertake to justify this homicide, he did not admit it, and he made no effort to mitigate or excuse it. When the trial judge stated to the jury that the defendant did admit the homicide, he went beyond the record, and, finding the defendant without any evidence of mitigation or excuse, it was the equivalent to instructing the jury to return a verdict of «guilty against him. To state the proposition differently: The court advised the jury it was the duty of the defendant to justify or excuse a homicide that he denied he committed. We cannot say that such instructions did not influence the jury to the prejudice of the defendant, and we are inclined to think that they did so influence the jury. It is difficult to imagine why such instructions should have been given, because they were not at all applicable to the case, and, believing that they were to the prejudice of the defendant, the judgment of the court below should be reversed, and the cause remanded for a new trial to the district court of. Ouster county, Okla.

DAVENPORT, J., concurs.

CHAPPELL, J., dissents.

EDWARDS, P. J., having presided in the trial of a codefendant, disqualified and not participating.


text:
    TOOTSIE PATTON v. STATE.
    No. A-6899.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 683.)
    Ledbetter & Brown, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having unlawful possession of mash, wort, and wash, and his punishment fixed at a fine of $100 and confinement in the county jail for 90 days. The state filed an information charging Tootsie Patton jointly with Guy Ervin and Charlie Clifton. The case against Guy Ervin was dismissed by the court on recommendation of the county attorney. In the trial of the case the jury found Tootsie Patton and Charlie Clifton guilty, and the defendant Tootsie Patton has appealed from the judgment of the court rendered against him on such verdict.

The defendant first contends that the court erred in overruling his demurrer to the information for the reason that said information did not state facts sufficient to constitute a crime under the laws of Oklahoma. The part of the charge in the information defendant complains of reads as follows :

“* * * The same being then and there fit for distillation, to wit, corn whisky.”

The charge against the defendant was, “possession of mash, wort and wash same being then and there fit for distillation.” This information sufficiently charged the offense of possession of mash, wash, and wort under section 1, chapter 42, Session Laws Sp. Sess. of 1923-24.

The defendant next complains that the court erred in admitting testimony obtained by an unlawful search of the premises of defendant. The evidence of the state was that they found the mash in a field on the premises of Charles Clifton; that as they passed the house after finding the mash they saw the still set up near a window and proceeded to search the house of Charlie Clifton. The contention of the defendant is that the mash and still were not found on premises over which he had any control. The defendant in his brief says :

“The admission of the testimony concerning the finding of the still at the residence of Charlie Clifton in close, proximity to the dwelling place of the plaintiff in error without a search warrant was prejudicial to the rights of the plaintiff in error.”

This court has repeatedly held that the immunity from the consequences of an illegal search is personal and does not extend to the unauthorized search of the premises of another. Hunter v. State, 13 Okla. Cr. 138, 277 Pac. 952.

The defendant did not take the witness stand, and relies for a reversal upon technical questions of law. This court has never looked with favor upon such defenses.

The defendant complains of other errors, but the same are not fundamental and therefore not sufficient to require a reversal of the case. The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    Ex parte GEORGE EASON et al.
    No. A-7634.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 684.)
    H. C. Hargis, for petitioner.

      J. Berry King, Atty. Gen.,, J. H. Lawson, Asst. Atty. Gen., and Paul O. Simms, Co. Atty., and Edw. H. Brady, Asst. Co. Atty., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner in substance alleges that he is restrained by the sheriff of Craig county in the county jail and that said restraint is without authority of law; that petitioner was charged with robbery by firearms before the county judge of said county, sitting as á magistrate. A preliminary examination was had, and the principal evidence against petitioner was the testimony of an accomplice; that there was no sufficient corroboration of the testimony of the accomplice to show sufficient cause. It is admitted before this court that the crime of robbery with firearms of the First State Bank of Centralia was committed as charged, that the testimony of one Charles Emick is that the petitioner with said Emick and one Dick Gregg and Herman Willison committed the robbery. There was testimony by other witnesses which petitioner contends is not sufficient under section 2701, Comp. St. 1921, which provides that a conviction cannot be had upon testimony of an accomplice unless corroborated. The state asserts that the corroboration is sufficient.

Prior to the filing of the petition for a writ of habeas corpus in this court, an information based on the preliminary had been filed in the district court of Craig county. It has been the uniform holding of this court that where an accused has had a 'preliminary examination and a finding of sufficient cause has been made by the examining magistrate and by him transmitted to the district court and an information there filed, a defendant cannot resort to the writ of habeas corpus on the ground that the evidence adduced at the preliminary examination was insufficient to show that a felony had been committed or that there was sufficient cause for believing the defendant guilty thereof. Ex parte Burroughs, 10 Okla. Cr. 87, 133 Pac. 1142; Ex parte Black, 37 Okla. Cr. 83, 256 Pac. 941. See also Ex parte Patman, 20 Okla. 846, 95 Pac. 622. Under our practice a proceeding by habeas corpus may be invoked after commitment by a magistrate upon a charge of felony only where there is no evidence reasonably tending to show sufficient cause. In theory, if there be none, then the magistrate is without jurisdiction to hold the accused. If there is such evidence, the magistrate has jurisdiction to hold, and the court or judge hearing the matter on habeas corpus does not sit as a court of review to weigh or determine the sufficiency as respects the credibility of the witnesses or the guilt or innocence of the accused, but to inquire only whether the holding was without jurisdiction by reason of a lack of evidence. The judgment of a committing magistrate is not to be reviewed beyond determining this question. If there is evidence to show that a crime has been committed and some competent evidence from which the magistrate may find there is sufficient cause to believe the accused committed it, accused is not entitled to be discharged on habeas corpus.

An examination of the transcript of the testimony taken at the preliminary attached to the petition discloses that it contains some evidence other than that of the accomplice tending to connect the defendant with the commission of the offense charged. We do not determine its sufficiency to sustain 'a conviction upon final trial. It is well settled that in a preliminary examination it is unnecessary that the evidence be sufficient to support a conviction. It is enough if it shows an offense was committed and that there is sufficient cause to believe the defendant guilty thereof. Ex parte Roberts, 31 Okla. Cr. 314, 238 Pac. 867; Ex parte Miller et al., 29 Okla. Cr. 301, 233 Pac. 775; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925; State v. Harris, 44 Okla. Cr. 116, 279 Pac. 925. For the reasons stated,, it is unnecessary for this court to determine whether or not the uncorroborated testimony of an accomplice would establish sufficient cause for holding an accused upon a preliminary examination under section 2487, Comp. St. 1921. There is a dearth of authority upon the question whether or not the uncorroborated testimony of an accomplice will make a showing of sufficient cause. State v. Smith, 138 Ala. 111, 35 So. 42, 100 Am. St. Rep. 26, holds it insufficient; to the same effect is Ex parte Oxley, 38 Nev. 379, 149 Pac. 992. It appears to us, however, that the statute forbidding conviction upon the uncorroborated testimony of an accomplice, section 2701, supra, applies to final trials and not to preliminary examinations, which are not trials in the ordinary sense. Ex parte McCurdy, supra.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.