text:
    VERGIL ADCOX v. STATE.
    No. A-8376.
    Aug. 16, 1932.
    (13 Pac. [2d] 593.)

      C. L. Cléarman, for plaintiff in error.
    ' J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Átty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was tried by agreement to the court, and the court found the defendant guilty of possession of intoxicating liquor and sentenced him to 60 days’ imprisonment in the county jail and a fine of $200; from which judgment the defendant appeals.

Before the case was called for trial the defendant filed a motion to suppress the evidence, on the ground that the search warrant did not describe the premises to' be searched as described in the affidavit. The defendant in support of his motion to suppress the evidence called J. O. Bell, the justice of the peace before whom the complaint was made and who issued the search warrant, and the following questions were propounded to the witness:

“Q. Do you remember issuing a search warrant for the Adcox place? A. More than one. Q. How many? A. I would not attempt to say that. Q. A dozen; was it as many as three or four? A. As many as that, possibly it would be under a dozen I presume. Q. Were those search warrants each time they were issued brought back to your office with a return on them? By Mr. Ivester: Objected to as incompetent, irrelevant and immaterial. By the Court: Sustained. By Mr. Cléarman: Exceptions.”

Several, other questions were propounded to the witness with reference to the issuing of a search warrant on October 24, 1931, to which objections were made, sustained, and exceptions saved by the defendant.

The defendant introduced a complaint which shows there were erased the figures “14,” “24,” and “October,” and below the “24” was “14,” and after the word “October” which had been erased, “November, 1931,” The same erasures show to have been made on the back of the complaint. The same erasures show to' have been made at the bottom of the search warrant before the signature “J. O. Bell, Justice of the Peace.” On the back of the search warrant had been written: “Nothing found.” The words, “Nothing found,” had been erased.

In the taking of the testimony the defendant insisted that the original complaint was filed on October 14, 1931, the search warrant issued, and executed by the sheriff and nothing found. That again on October 24, 1931, the date in the complaint, which had been filed on October 14, 1931, was changed to October 24, 1931, and the warrant served by the sheriff. The defendant further contended that the date in the complaint that had been filed on October 14, 1931, was again changed to the 14th day of November, 1931, and the date in the search warrant that had been served by the sheriff and nothing found, had been changed to November 14, 1931; that the complaint and warrant had served its purpose; that the search made under the warrant, which date had been changed, was unlawful, and the evidence secured thereunder was'inadmissible.

When the defendant made an effort to establish, by the justice of the peace, that the warrant had been served on a previous date by the sheriff and nothing found, the court refused to permit him to do so. The defendant reserved his exceptions to the ruling of the court in refusing to let him show by the justice of the peace the truth as to the complaint and search warrant, where the dates show to have been changed. This, we think, was an error. The defendants should have been permitted to have fully questioned the justice of the peace as to the various changes in the dates in the complaint and the search warrant. If the search warrant, as shown by the indorsement on the back of it, had been served by the sheriff and nothing found, it could not be used again for the purpose of searching the defendant’s premises.

Section 7009, C. O. S. 1921, in part reads as follows:

“And to' make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any.”

Section 2886, C. O. S. 1921, under “Criminal Procedure,” reads:

“A search warrant must be executed and returned to the magistrate by whom it is issued within ten days. After the expiration of these times respectively, the warrant, unless executed, is void.”

There is no provision of law whereby the affidavit upon which the search warrant is based, and the search warrant returned to the magistrate with the indorsement thereon, may.be removed and redated and used again. In Coatney v. State, 30 Okla. Cr. 270, 235 Pac. 942, the last sentence of the first paragraph of the syllabus reads as follows :

“Held, further, a search warrant once served cannot be further resorted to for the purpose of additional searches.”

The record clearly shows that the complaint in this case was filed and dated October 14, 1931, describing a quarter section of land; that again on October 24, 1931, the “14” was erased and “24” written in, and the indorsement, “Nothing found,” erased. This court cannot lend its indorsement to this kind of procedure. The court erred in refusing to permit the defendant to show by the justice of the peace the reason for the change of these dates.

It is further urged by the defendant that there is a variance in the complaint and the search warrant. An examination of the complaint and the search warrant introduced in support of the defendant’s motion to suppress the evidence shows the complaint describes a quarter section of land, and the search warrant describes a certain portion of a quarter section by metes and bounds. The proof further shows that on the tract of land described, besides the defendant’s family three other families had homes, at the time the search warrant was issued and served. It is well settled that a search warrant must conform to the affidavit. Thomas v. State, 38 Okla. Cr. 284, 260 Pac. 515.

“The warrant must describe the premises as described in the affidavit, and with such particularity that the officer to whom it is directed has no discretion as to the place to be searched, but can ascertain the place from the warrant.” Alkire v. State, 51 Okla. Cr. 450, 2 Pac. (2d) 98, and cases therein cited.

For the reasons stated, the motion to suppress should have been sustained. The case is reversed and remanded.

EDWARDS and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    HARVEY HENDRIX et al. v. STATE.
    No. A-8406.
    Aug. 16, 1932.
    (13 Pac. [2d] 692.)
    Edwards & Robinson and Gus Rinehart, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Oklahoma county of the crime of larceny of domestic fowls — the punishment of the defendant Harvey Hendrix fixed at five years in the state penitentiary; the punishment of Nellie Brooks fixed at one year and a day in the state penitentiary, from which judgment the defendants have appealed.

The testimony in this case is circumstantial. On the 15th day of May, 1931, W. A. Curry, who- lived near Edmond, Okla., missed 19 of his chickens, and reported the same to- the officers. Joe Chambers, a farmer living near Guthrie, on the morning of the 15th of May, 1931, was walking along the road near the city of Gnthrie. His attention was attracted to the side of the road, and upon investigation he found sacks containing chickens; this was reported, and the sheriff of Logan county and one of his deputies went to the place where the chickens were, and secreted themselves about 9 o’clock on the morning of May 15, 1931; the defendant Harvey Hendrix drove up to where the chickens were and went directly to the place, returning toward the car with a sack of chickens in each hand. Nellie Brooks was driving the car, and the testimony tends to show the only connection she had with the transaction was the driving of the car.

The chickens were identified by Curry, the prosecuting witness, as his chickens he missed from his henhouse. The defendant Harvey Hendrix contends that Nellie Brooks had driven him there from her home for Hendrix to get some whisky he claims was hid at the side of the road near where the chickens were found.

Several errors have been assigned by the defendants which they claim are sufficient to justify the court in reversing their case. Upon an examination of the errors assigned, we hold they do not possess sufficient merit to warrant a reversal.

The record has been carefully examined, and the testimony contained therein considered. The testimony in the case is sufficient to sustain the judgment. There being no showing that either of the defendants have ever been guilty of the crime of larceny of domestic fowls prior to this conviction, the court holds that the punishment of Harvey Hendrix is excessive and should be modified from the sentence of five years in the state penitentiary to a. sentence of two years; the testimony against the defendant Nellie Brooks being circumstantial, and it being the contention of the defendant that she knew nothing about the chickens being stolen, and only drove the car out there for the defendant Hendrix, the court holds her sentence is excessive and should be modified from a year and a day in the state penitentiary to six months in the penitentiary.

The judgment as to Harvey Hendrix is modified to two years, and the judgment of Nellie Brooks is modified to six months.

The judgment as modified is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    DOW AKINS et al. v. STATE.
    No. A-8369.
    Aug. 16, 1932.
    (13 Pac. [2d] 590.)
    R. Y. Nance, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the .State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Adair county of theft of domestic fowls, and their punishment fixed at two years in the state penitentiary.

Defendants were charged with the larceny of three hens from one Kelly. The evidence for the state is not overwhelming, but the testimony of defendants tends to strengthen it. Upon a consideration of the entire record, we are of the opinion the jury were fully warranted in finding defendants guilty, but, under the entire record, the punishment assessed is excessive, and justice requires a modification by reducing the judgment to a term of one year in the penitentiary. Tennison v. State, 32 Okla. Cr. 260, 240 Pac. 324.

As modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    Ex parte SILAS HINKLE et al.
    No. A-8451.
    Aug. 25, 1932.
    (13 Pac. [2d] 1093.)
    L. A. Justus, Jr., for petitioners.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and R. O. Robbins, Co. Atty., for respondents.
   DAVENPORT, P. J.

This is an original action in this court for a writ of habeas corpus. The petitioners allege that they are restrained of their liberty and are unlawfully imprisoned at Pawhuska, Osage county, Okla., by R. H. Shults, sheriff of said county, and C. M. Hanson, sheriff of Chautauqua county, Kan., and that a requisition from the Governor of the state of Kansas has been honored by the Governor of the state of Oklahoma, and that the said sheriff is about to deliver petitioners to the sheriff of Chautauqua county, Kan., to be conveyed to the state of Kansas upon a prosecution pending in the court there charging, petitioners with the crime of bank robbery.

A writ of habeas corpus was issued upon said petition returnable on the 23rd day of August, 1932, at which time a hearing was had. The respondents made their return showing that they held petitioners upon the proper showing that petitioners are charged with a crime in Chautauqua county, and that a requisition has been requested by the Governor of Kansas to the Governor of Oklahoma to deliver the petitioners to the sheriff of Chautauqua county, Kan. Petitioners are charged with being fugitives from justice from the state of Kansas. Petitioners sued out this writ of habeas corpus denying that they are fugitives and introduced evidence in support of their contention.

Habeas corpus is the proper proceeding to determine whether the prisoners are fugitives within the meaning of the extradition laws and subject to be taken from the jurisdiction of this state to the state whose laws they are charged with violating.

Upon the hearing had, the court determined that the petitioners are fugitives; the writ is therefore denied, and the prisoners remanded to the custody of the respondents.

EDWARDS, J., concurs. CHAPPELL, J., not participating.


author: PER CURIAM.

text:
    GROVER RHEA v. STATE.
    No. A-8410.
    Sept. 2, 1932.
    (13 Pac. [2d] 1118.)
    W. A. Ratterree, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okfuskee county of selling whisky, and he was sentenced to pay a fine of $350 and to serve four months in the county jail.

The record discloses that two deputies of the sheriff’s office went to a filling station operated by defendant and bought a half pint of whisky for the sum of 75 cents. Only one of these parties testified. Defendant testified these parties attempted to buy whisky from him, that he refused to' sell, and that a quarrel followed. He offered some testimony in support of his defense. Defendant had prior thereto been convicted for selling whisky to a minor and served a term in the penitentiary. The case presents an issue of fact which the jury by their verdict decided adversely to defendant’s contention. Complaint ,is made that the county attorney was permitted to ask about the search of defendant’s filling station at other times and of the finding of whisky there at other times and about other claimed offenses. We are satisfied that too much liberty was allowed the state, and for this reason the judgment is modified to a fine of $200 and to a term of 60 days in the county jail.

As modified, the case is affirmed.


author: CHAPPELL, J.

text:
    MELVIN YEARGIN v. STATE.
    No. A-8380.
    Sept 2, 1932.
    (14 Pac. [2d] 431.)
    Tom W. Cheatwood, for plaintiff in error.
    J. Berry King, Atty. Gen., and Gus Binehart, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of burglary in the second degree, and his punishment fixed by the court at imprisonment for two years in the state reformatory at Granite.

Defendant contends that the evidence is insufficient to support the verdict and judgment.

The state was compelled to rely upon circumstantial evidence. .Some one entered the Melrose Apartment House in Oklahoma City, and by opening a small closet door took therefrom a vacuum sweeper; defendant was seen and arrested in the alley at the rear of this building, with the sweeper, and, when he saw the officers, he attempted to escape; on being arrested, he made no explanation of how he came into possession of the sweeper.

A taxicab driver testified that he picked up defendant, Jim Hodges, and another boy, and, after driving them about town for a considerable time, took them in his cab and stopped near the Melrose Apartments; that defendant and the other boys went up the alley in the rear of the apartment; that he saw the officers in the scout car, and that, as they came up, defendant and one of the other boys were standing by the taxicab; that he did not .see the sweeper until after the officers had arrested the boys.

The officers testified that, as they turned into the alley back of the apartment and threw their light on the boys, they ran — defendant and one of the boys towards the taxicab — that defendant had the sweeper, and that, as they came up to them at the taxicab, he was putting the sweeper into the cab.

The man in charge of the apartment house testified that the sweeper was kept in a closet in one of the rooms on the first floor, and that the door was kept closed; that there were screens on the outside doors which would have to be opened to enter the apartment.

Defendant made no explanation of his possession of the sweeper to the officers, did not take the witness stand in his trial, and offered no evidence.

Defendant’s first contention is that this evidence is insufficient to> support the verdict of the jury. This court has held that the possession of stolen property may be considered by the jury as a circumstance in determining the guilt or innocence of the defendant in a burglary case. Morrow v. State, 26 Okla. Cr. 67, 221 Pac. 1017; Trimmer v. State, 32 Okla. Cr. 161, 210 Pac. 129.

Defendant was seen and arrested in the alley in the rear of this building with the sweeper, and attempted to escape when he saw the officers. His possession of recently stolen property, at midnight, in the alley at the rear of the building from which the sweeper was taken, called for some reasonable explanation, but he made none.

Defendant further contends that, since there is no evidence of actual breaking, the evidence is for that reason not sufficient. Breaking and entering, to constitute the crime of burglary, may consist in the opening of a closed door. Lumpkin v. State, 25 Okla. Cr. 108, 219 Pac. 157. On this record, no reasonable jury could do anything but find the defendant guilty as charged.

For the reasons stated, the cause is affirmed.

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


text:
    GEORGE THOMAS v. STATE.
    No. A-8396.
    Sept 2, 1932.
    (14 Pac. [2d] 430.)
    Ralls & Ralls, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Coal county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The premises of defendant were searched and some intoxicating liquor found. The defendant moved to suppress, and objected to the introduction of evidence on the ground of insufficiency in the description of the affidavit and search warrant. The affidavit and warrant described the premises as :

“The premises occupied by Geo. Thomas and known as the old Charlie Spear home and located-in the south part of Lehigh, Coal County, Oklahoma, on State Highway No-. 19. * * *”

The Attorney General has filed comments amounting to a confession of error, saying in part:

“* * * The house is not described with particularity, neither is its location on State Highway No. 19 made more definite than somewhere in the south part of Lehigh. Does this description meet the requirements of the general rule above stated? We are inclined to believe not. * * *”

The description is insufficient. Section 3223, Stat. 1931; Thomas v. State, 38 Okla. Cr. 284, 260 Pac. 515; Cook v. State, 40 Okla. Cr. 219, 267 Pac. 1045; Linderman v. State, 43 Okla. Cr. 166, 277 Pac. 602; Abbott v. State, 44 Okla. Cr. 455, 281 Pac. 597; White v. State, 45 Okla. Cr. 103, 281 Pac. 824; Overstreet v. State, 46 Okla. Cr. 68, 283 Pac. 1032; Doyle v. State, 49 Okla. Cr. 422, 295 Pac. 237.

The case is reversed and remanded, with instructions to dismiss.


text:
    F. M. FRYE v. STATE.
    No. A-8398.
    Sept 2, 1932.
    (14 Pac. [2d] 430.)
    A. W. Billings, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woodward county on a charge of having the unlawful possession of whisky and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

Defendant occupied an apartment at a rooming house in the city of Woodward with his family in which house were several other apartments. Defendant’s family was away and he had a guest. The proprietor called the police who went to the apartment house and the proprietor directed him to defendant’s apartment and claimed they were making a noise and disturbing other occupants of the house. They went there and hearing some loud talking inside entered, arrested defendant, and took him to the city hall and preferred charges against him. They later returned to the apartment house and with the consent of the proprietor entered defendant’s rooms, searched them, and found about a gallon and a half of whisky. The police officers had no warrant or search warrant. The defendant contends the search of his residence was unlawful. The contention must be sustained. At the time the police officers entered the residence of defendant he was committing no offense in their presence and the entry and subsequent search are in violation of section 30, art. 2, State Const.

The case is reversed, and remanded with instructions to dismiss.


text:
    J. R. BOND v. STATE.
    No. A-8357.
    Sept. 2, 1932.
    Rehearing Denied Sept 30, 1932.
    (14 Pac. [2d] 425.)

      C. A. Ambrister, Harry G. Davis, and Ledbetter, Stuart, Bell & Ledbetter, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Phil. Oldham, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of arson in the second degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of four years.

Defendant contends first that the evidence is insufficient to sustain the verdict, because the evidence of Harry Castator, an accomplice, was not sufficiently corroborated to connect defendant with the offense.

The evidence of the state was that on July 1, 1931, defendant obtained title to a large home in the city of Muskogee; that he was a resident of Oklahoma City and maintained a home there and had no use for this Muskogee property as a residence for his family; that between April 15th and July 8th, the property had been extensively advertised for sale, but no offer worth considering had been received; that the property was mortgaged for $9,000, with a $9,000 insurance policy payable to the holder of the mortgage and $15,000 additional insurance payable to defendant; that these premises had been built by O. T. Graham and were occupied by him at the time the property was disposed of to defendant, and that Graham remained in possession of the property at a rental of $150 for a month and a half and $50 per month thereafter, and which possession was to continue until August 1st; that defendant for a number of years had been acquainted with and friendly to Harry Castator, who resided at Bristow, Okla., and was employed by the Ford Hardware as a salesman; that on the 8th day of July, defendant came to Bristow and got- Castator in his car, took him out on the road, and told him that he wanted a house in Muskogee burned, and promised Castator $1,000 if he would set fire to it; that they went back to the hardware store and Castator told Ford that he wanted a leave of absence to go to Tulsa; that thereupon defendant and Castator got in defendant’s car and drove to Muskogee for the purpose of looking the house over and making arrangements to burn it; that when they reached Muskogee, defendant introduced Castator to the Grahams, not by name but merely as a painter, and explained that having disposed of the property he would have to have some painting, done and wanted Castator to look it over; that on the 18th day of July, defendant wrote to Mrs. Graham, who was at that time in Oklahoma City, telling her that he would want possession of the place on the 20th day of July; that on the 25th day of July, and while the Grahams Avere vacating the premises, defendant came and told Graham he had sold the place; that Graham gave defendant the key for the Yale lock to the front door and a key to- the side door, which defendant took aAvay with him; that the keys for the other doors were gathered up and placed by defendant in a drawer in a cabinet in the house; that on the morning of July 31st, this residence was badly damaged by fire, the remains of which showed it to be of incendiary origin.

Castator testified that on the 25th of July, defendant took him to Muskogee .to look the house over and plan the fire; that he told defendant it was too big a job for one man and that, with defendant’s consent, he arranged for Frank Schribner to help him; that defendant left him at Bristow and told him to get Schribner and be in Muskogee on Sunday morning and meet him at the Graham home, at 9 o’clock; that they met defendant there and went over the house together and figured out the best plan to burn the house; that defendant suggested they should use not less than 30 gallons of gasoline; that it was there agreed that the witness, Schribner, and defendant would meet at the house on the next Wednesday, with the gasoline; that defendant said he had two keys given him by Graham, and gave him one of them, and he used that to get into the house through the side door; that the key exhibited to him by the county attorney was the one received from Bond and used to get into the house; that defendant gave him the key and $25 expense money before they left the house; that on the 28th day of July he bought six cans of gasoline and a bucket with the money given him by defendant; that he and Schribner left Bristow on Wednesday and got to Muskogee about 5 o’clock; that they drove into the alley back of the Graham house and carried the gasoline into the house; that they got into the house with the key given to him by defendant; that they then left Muskogee and drove to Okmulgee and came back to' Muskogee about 1 o’clock in the morning; that they found a car in the garage and, being afraid to burn the house, they went back to Bristow; that the next day they went to' Oklahoma City and went to defendant’s residence; that at that time they told defendant what they had done; that defendant gave the witness a check for $10 as additional expense money; that this check was in witness’ possession when he was arrested; that they went to Muskogee, entered the Graham home, opening the side door with the key defendant had given witness, and carried five gallons of gasoline upstairs in the attic and poured it in some boxes and on the floor and down the stairway to the second floor, and poured two five-gallon cans on the second floor, and left a small bucket full, of gasoline setting on the second floor; on the first floor and the stairway they scattered three five-gallon cans and left a water bucket full of gasoline at the stairway; that they soaked some rags in gasoline and tied them together to lead from the bucket of gasoline to' the door on the west side of the house and to the back; that Schribner touched a match to this gasoline soaked rag and they hurriedly'left town, and came back some hours later; that on Sunday morning following the fire, defendant came to his residence and told him the county attorney had called him to Muskogee to talk about the fire; that defendant made an appointment to meet the county attorney in Muskogee, Monday; that Castator put the key to the Graham house, given him by defendant and used to open the house at the time it was burned, on a rock under the corner of the house where he lived; and that this key was later found by the fire marshal.

Defendant admitted in his testimony that he met Castator at the times and places testified to, and that he gave him the money and the check, but explained it by saying that Castator was an important witness in a case pending in court, and that the trips were over that case and the money given for Castator’s expenses in that case.

Counsel for defendant contend that the record fails' to show sufficient corroboration by evidence other than that of the accomplice to connect Bond with the crime.

The state admits that Castator was an accomplice and the trial court so instructed the jury.

There are certain established principles of law which control this court in its consideration of the sufficiency of the' corroboration of an accomplice:

1. Section 2701, C. O. S. 1921, while providing that a conviction cannot be had upon the testimony of an accomplice unless such testimony is corroborated, only requires such corroboration as tends to connect the defendant with the commission of the crime.

2. That the corroborative evidence need not be direct, but may be circumstantial.

3. That it is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. When the accomplice is corroborated as to some material fact, or facts, by independent evidence tending to connect the defendant with the commission of the crime, the jury could from that infer that he spoke the truth as to all.

4. It is not necessary that the corroborative evidence shall fall from the lips of other witnesses. The defendant may provide corroborative proof by his own conduct, such as by confessing the crime, or by his explanation, or by failure to produce available evidence or the like.

In addition to the foregoing general principles, in Key v. State, 38 Okla. Cr. 169, 259 Pac. 659, this court said:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

This court has many times had under consideration the question of the corroboration necessary for an accomplice, the more recent cases being: Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012; Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43; Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387; Bradley v. State, 43 Okla. Cr. 456, 279 Pac. 920; Fortman v. State, 45 Okla. Cr. 23, 280 Pac. 1109; Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087.

In cases of this kind it is always competent to show motive of the defendant, but the motive alone would not be sufficient corroboration. It is also competent to show prior and after association in or near the place where the crime was committed, and to show that defendant furnished the means whereby the crime was committed, as in the case of the keys and the furnishing of the money to buy the gasoline. The fact that defendant was in communication with and in the company of the witness the nest day after the fire was a circumstance considered with all the others which tended to connect him with the commission of the offense. The finding of the check given by defendant to the witness on the day before the fire was set, is perhaps the strongest evidence tending to connect defendant with the commission of the offense. When all the facts and circumstances in the ease are considered together and these facts are measured by the rules of law above stated, it is apparent that there is evidence which tends to connect the defendant not only with the witness Castator, but also with the commission of the offense itself.

Defendant next contends that the court erred in refusing to give his requested instruction upon the evidence necessary to corroborate an accomplice.

The court on its own motion gave the usual instructions upon this question. No exceptions were saved to these instructions and no objections made thereto.

This court has repeatedly held that where the instructions given sufficiently cover the law as contained in the requested instructions, it is not error to refuse to give them, although the same may correctly state the law. Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Lacy v. State, 30 Okla. Cr. 273, 236 Pac. 53; Nowabbi v. State, 31 Okla. Cr. 158, 237 Pac. 868.

Defendant next contends that he was prevented from having a fair and impartial trial because of the prejudicial remarks of the trial judge,

A careful examination of the record discloses no prejudicial remarks or conduct sufficient to require a reversal of the case. It appears from the record that the case was hotly contested, and that counsel for defendant provoked some of these remarks by his conduct in the trial.

This court has held that a judgment of conviction will not be reversed because of the remarks of the trial judge, where such remarks were invited or encouraged by the conduct of defendant’s counsel, unless it is clear that the impropriety complained of amounted to a deprivation of some constitutional or statutory right guaranteed to the defendant. Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414.

Complaint is also made that the defendant was prevented from having a fair trial because certain defense witnesses were arrested upon a charge of perjury immediately after they had testified.

It appears from the record that the witness Gus Johnson was arrested by the sheriff in the hall of the courthouse, away from the presence and out of the hearing of the jury, immediately after he had concluded his testimony. It further appears that on the next day an account of this arrest appeared in the daily papers, and that the court, in the presence of the defendant and his counsel, inquired of the jury if they had read any account of any part of the trial in any newspaper and they all gave a negative answer. It further appears that the witness Bay Clark was also arrested out of the presence and hearing of the jury, after he had testified for the defendant, and that thereupon Mr. Bell, counsel for defendant, came into open court and in the presence of the jury told the court that the county attorney had caused the arrest of these two witnesses for perjury. Thereupon the court rebuked counsel for making this declaration in the presence of the jury, and admonished the jury that they were not to' pay any attention to that or be influenced in any manner by the arrest of these witnesses.

It is not improper for the state to cause the arrest of witnesses whom the county attorney believes have committed perjury, but great care should be exercised to see that this is not done in the presence or hearing of the jury, and that knowledge of such arrest shall be kept from the jury. Where counsel for defendant himself imparts such information to the jury, he will not be permitted to predicate error thereon.

In this connection defendant further contends that the arrest of these witnesses intimidated the balance of the witnesses for defendant.

It appears from the record that all of the witnesses subpoenaed by the defendant testified in the case, and there is nothing in the record to indicate that they were intimidated or prevented by such arrests from testifying fully and completely in the case.

Complaint is also made that the county attorney was guilty of misconduct in his cross-examination of defendant.

The witness was asked:

“Q. Mr. Bond, you haven’t lived at Oklahoma City always, have you? A. I have always claimed that as my home. Q. You came from Washington to Oklahoma City? A. No, sir. Q. This lady wlm took the stand yesterday in your behalf is your wife at this time? A. Yes, sir. Q1. You were formerly married to a lady named Mamie Bond? A. Yes, sir. Mr. Davis: We think this is incompetent, irrelevant and immaterial, and don’t think he should go1 any further with it. The Court: Well, just let him go ahead and when you want to object you may do so. Mr. Oldham: Do you state that you and Mamie Bond never lived in Washington, D. C.? A. No, sir. Q. I will ask you if, as a matter of fact, you and Mamie Bond were not citizens and residents of the city of Washington, D. C., in the year 1914? A. No, sir. Mr. Davis: We object to any evidence with reference to any person not a party to this suit, and any reference to Mamie Bond; it is incompetent, irrelevant and immaterial. The Court: Sustained. Mr. Oldham: I will ask you if you and Mamie Bond did not move from Washington, D. C., to Oklahoma City? Mr. Davis: We object to any examination with reference to Mamie Bond other than what has already been made, because it is incompetent, irrelevant and immaterial, and prejudicial. The Court: Sustained. A. No, sir.”

This cross-examination was improper, but counsel made no objection except as to any further examination, and this objection was promptly sustained by the court and no other questions asked.

This court has no- way of knowing, whether any of the jurors knew who Mamie Bond was or what she had previously done, nor can we understand why the county attorney would ask these questions unless he thought some of the jurors might know who she was, and might seek to prejudice the defendant by connecting him with her and in transactions she might have had.

We cannot say from the whole record that defendant might not have been prejudiced by this improper examination.

The ends of justice will be met by modifying the judgment and reducing the punishment from four to three years in the penitentiary, and, as modified, the cause is affirmed.

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


text:
    CLEM BEAVER v. STATE.
    No. A-8394.
    Sept. 2, 1932.
    Rehearing Denied Sept. 30, 1932.
    (14 Pac. [2d] 423.)

      Hugh M. Bland, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of larceny of live stock, and- his punishment fixed by the jury at confinement in the state penitentiary for a period of two years.

Defendant contends first that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence.

It appears from the record that defendant was given a preliminary trial in August, 1931, and was tried in the district court on the 21st day of October, 1931; that immediately after the preliminary, he employed W. A. Schofield as his attorney; that Schofield failed to appear to represent him at the trial. It further appears that defendant and his witnesses were present and the trial court gave him 30 minutes’ delay in which to procure another lawyer to represent him; that during that time he procured Harry Windsor and when the case was called announced ready for trial; that after the jury had found defendant guilty, his present counsel, Hugh M. Bland, and -Vance & Bliss appeared as attorneys and filed a motion for a new trial, assigning, among other reasons for the same, newly discovered evidence. This motion was supported by the affidavits of Eli Augerhole, Dick Weaver, and defendant.

The state contends that the evidence of Eli Auger-hole was not newly discovered. The affidavit discloses that defendant knew that Augerhole would testify that he sold Weaver a hog of similar description to the one that was stolen from Mayes; Augerhole did not know what Weaver did with this hog. The testimony of this witness was not only not newly discovered, but was cumulative to the testimony of Weaver, Mr. and Mrs. Johnson, and defendant.

Defendant also claims that the testimony of Dick Weaver, who was a son-in-law of defendant, was not properly interpreted.

An examination of the record discloses that there was no substantial variance between what the witness testified to and the statements in his affidavit in support of the motion for a new trial.

In a motion for a new trial on the ground of newly discovered evidence, the affidavits must set out the proposed evidence and it must be such as could not have been secured at the former trial by reasonable diligence.

A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court. The presumption is that that discretion was properly exercised. Peters v. .State, 35 Okla. Cr. 367, 250 Pac. 1032.

This court has also held that a new trial will not be granted where the evidence is cumulative and upon the whole record there is no reasonable probability that a jury upon another trial would arrive at a different conclusion. Bay v. State, 35 Okla. Cr. 322, 250 Pac. 438.

An examination of the record discloses that defendant was not entitled to a new trial on the ground of newly discovered evidence.

It is also urged that the evidence in this case is not sufficient to support the verdict and judgment.

Without going into detail, it is sufficient to say that the proof showed the stolen hog in the possession of defendant and that he butchered the same during the short period of time between the discovery of the stolen animal hidden in the smokehouse and the return of the owner to claim it. Defendant’s testimony was that he traded for this hog with Dick Weaver, his son-in-law, and Eli Auger-hole, whom it appears from other evidence was his brother-in-law. The jury were not bound to believe this explanation of defendant’s. At most, it can only be said that there is a conflict in the evidence.

This court has uniformly held that it will not substitute its opinion for that of the jury where there is evidence reasonably tending to support the verdict, although the evidence may be conflicting.

There being no fundamental error in the record and it appearing that substantial justice has been done by the verdict and judgment, the cause is affirmed.

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


text:
    JOHN WARREN v. STATE.
    No. A-8400.
    Sept. 2, 1932.
    (14 Pac. [2d] 240.)

      Jarrett & Jarrett, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of a second violation of the prohibitory liquor law, and was sentenced to pay a fine of $500 and to serve a term of one year in the county jail.

At the time charged, officers with a search warrant searched the residence and premises of defendant and found about three gallons of whisky, a part of which was in the house and a part in the barn concealed in a trap or cache in the granary. The whisky in the house was in two containers, one of which contained some poke root. The prior conviction was admitted, and defendant explained his possession by testimony that the possession was without intent to sell but for the making of medicine for his wife. The law has not made mere possession of whisky an offense, but possession must be with intent to violate some provision of the law, such as to sell or transport. The possession of a quantity in excess of one quart is made prima facie evidence of an intent to violate the law. Section 2626, Stat. 1931. Three gallons would seem to be a rather large quantity for purely medicinal purposes, and the fact of the concealment of a large part of this in the granary strengthens the presumption of unlawful intent. The defendant’s testimony in explanation that he bought the whisky for $3 a gallon from a stranger who came to his place and solicited him to buy is not entirely reasonable. The evidence is sufficient.

The principal contention made is that the court failed to give an affirmative instruction that possession alone is not sufficient, but must be coupled with intent to violate the law. No exceptions were taken to the instructions given, and no request for additional instructions made. The charge of the court fairly covers the law of the case including that of intent.

No prejudicial error appearing, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    CHARLIE SCROGGINS v. STATE.
    No. A-8377.
    Sept. 2, 1932.
    (14 Pac. [2d] 237.)
    Wilkerson & Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of larceny of hogs and was sentenced to serve a term of three years in the state penitentiary.

One Sam Johnson was the owner of some hogs. On July 20th, four head were stolen. The next morning about sunup defendant, accompanied by two other persons, Easkey and Boss, appeared at Claremore, some thirty-five or forty miles from the place where the larceny was committed, driving a Whippet car, on the back of which was a rack in which were these four hogs with others, and the hogs were sold to one Steidley. The Whippet car belonged to defendant. These same parties four days earlier were at Claremore about the same hour of the day and had sold hogs to Steidley and at the time Steidley told them he wanted to purchase other hogs. At the time of the sale of the hogs in the instant case, Boss gave his name as Smith and the check was made to him. Defendant explained his connection by testifying he had started to Claremore by way of Pryor; that Boss’ house was on the road, and, when he approached it was flagged down by Easkey and they engaged him to take the hogs to Claremore and paid him $3.50 for the service; and that he knew nothing of their having been stolen. He offered some testimony tending to corroborate him.

Defendant contends the evidence is insufficient to sustain the judgment; that it is not conclusively shown defendant had possession of the stolen property; and that in any event the possession of stolen property alone is not sufficient to sustain a judgment of larceny of the property. Under the circumstances proven, that is, the hour at which the sale of the stolen property was made, the fact that the same parties had four days before that made a similar sale of like property, and the interest shown by the testimony of defendant in the sale of the property, with the other evidence in the case, was a question of fact for the jury and sufficient to sustain the judgment. The further contention is made that the court erred in refusing a request for an instruction on the law of circumstantial evidence. The proof of possession by defendant and Ms connection with, the prosecution in this case is a proof of asportation by direct testimony, and the case does not rest on circumstantial evidence alone, and it is only where the case is entirely circumstantial that the court should give an instruction on circumstantial evidence.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    In re OPINION OF THE JUDGES. (In re NATHAN RIGHTSELL.)
    No. A-8459.
    Sept. 2, 1932.
    (14 Pac. [2d] 238.)
   EDWARDS, J.

The record submitted to which is

attached your request for opinion discloses that defendant was charged with murder in the district court of Choctaw county, and on April 12, 1932, was sentenced to death. Under the Constitution and laws of this state, any person convicted of felony may appeal within six months from the time judgment is rendered. Section 3192, St. 1931. This time does not expire until October 12, 1932, and defendant has until and including that date to file an appeal in this court from the judgment and sentence aforesaid. It has been the uniform holding of this court that the provisions of section 3172, St. 1931, contemplate an advisory opinion where an appeal has not been taken from the judgment and sentence of death and where the time to appeal has expired. To render an opinion where an appeal has been taken or where the time for appeal has not expired would be to express an opinion in an ex parte proceeding as to the rights of a defendant, which may afterwards be brought before the court by appeal where all parties interested would be represented. An opinion in advance would deprive a defendant of his constitutional right to be heard in his own behalf. However, should such an appeal not be taken by October 12,1932, this court will examine the record presented and render an advisory opinion as requested.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    Ex parte A. J. GARDNER.
    No. A-8455.
    Sept. 2, 1932.
    (14 Pac. [2d] 238.)
    A. J. Gardner, in pro. per.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained of his liberty by the warden of the penitentiary; that such restraint is upon a conviction for murder and a life sentence from Pottawatomie county, a plea of guilty being entered by petitioner. The petition contains no question which can be raised by habeas corpus.

The writ is denied.


text:
    CLARENCE P. ADAMS v. STATE.
    No. A-8333.
    Sept. 9, 1932.
    (14 Pac. [2d] 429.)
    Frank W. Burkett and P. D. Mitchell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Texas county of the crime of robbery with firearms and his punishment fixed at imprisonment in the state penitentiary for a period of 25 years, and defendant appeals by petition in error and a portion of the record in the nature of a transcript.

The defendant applied to this court for an order requiring the county in which he was tried to furnish a copy of the testimony at the expense of the county, which application was denied. No further proceedings have been taken by the defendant to perfect the record, nor has any appearance been made or brief filed in support of the errors alleged to have occurred at the trial.

No fundamental or prejudicial errors appear in the transcript sufficient to warrant a reversal.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    M. P. VAUGHN v. STATE.
    No. A-8392.
    Sept. 9, 1932.
    (14 Pac. [2d] 239.)
    Babb & Bennett, T. B. Lunsford, and Windham & Windham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of LeFlore county of manslaughter in the second degree and his punishment fixed at imprisonment for a term of two years in the state penitentiary.

At the time charged defendant was a deputy sheriff. With another deputy and a constable he was on an official mission and served several search warrants for intoxicating liquor. While driving in an automobile along a byroad, defendant and his fellow officers came upon some young men sitting in a circle on the ground, apparently engaged in some kind of a game. Defendant testified he saw dice thrown. The other officers testified they did not see any dice or game played and did not know what the parties were doing. George McBride, one of the young men in the circle, got up from the ground and started off first in a fast walk and then in a run. Defendant pursued him through the woods and over a barbwire fence about seventy-five yards from where the parties were first seen. Here they went out of sight of the others, and defendant was heard to hollow, “Stop, Stop,” a couple of times, shortly followed by two shots, which some of the witnesses testified were in quick succession. Defendant admitted firing the shot that killed deceased, but testified he fired the first shot in the air, then ran a little distance and fired the other shot accidentally while falling and without any intention of injuring McBride, and that he was attempting to arrest him for engaging in a gambling game.

A peace officer has a right to arrest without a warrant for an offense committed or attempted in his presence. Section 2780, St. 1931. Gambling, is a misdemean- or and when committed in the presence of an officer it is the duty of the officer to arrest the offender. Sections 2191 and 2200, St. 1931. It has been many times said by this court that where an officer seeks to arrest a person for a misdemeanor and such person flees the officer has no right to resort to the extreme measure of shooting him although he cannot otherwise be apprehended. If the officer does shoot and kill one who flees from him for a misdemeanor, he is at least guilty of manslaughter. Roberson v. U. S., 4 Okla. Cr. 336, 111 Pac. 984; Sharp v. U. S., 6 Okla. Cr. 350, 118 Pac. 675; Pamplin v. State, 21 Okla. Cr. 136, 205 Pac. 521; Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923; Nowlin v. State, 52 Okla. Cr. 164, 3 Pac. (2) 916; Graham v. State, 31 Okla. Cr. 125, 237 Pac. 462.

Many cases of this kind have been before this court, and almost invariably the defense is that the shooting was accidental. We are not surprised that the jury did not believe this. Homicides of this kind have been all too prevalent. The principal complaint is that the court did not in express words instruct that it was the duty of the officer to arrest for an offense committed in his presence, but merely tells them that gambling is a misdemean- or, but that an officer had no right to shoot at a person fleeing from arrest for a misdemeanor. If he does and he fatally wounds the person fleeing, he would be guilty of manslaughter. The court instructed the jury in substance that if they believed the shooting was accidental or if they had a reasonable doubt thereof that they should return a verdict of not guilty. The right of an officer to arrest for an offense committed in his presence was not controverted. This right and duty of an officer is so well known by all that there should be no misapprehension on that subject. The instructions would have been better if more definite, but the error is harmless.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    RALPH H. BLAKE v. STATE.
    No. A-8348.
    Sept. 9, 1932.
    (14 Pac. [2d] 240.)

      Streeter Speakman, W. V. Pryor, C. B. Rockwood, Owen & Looney, Clara C. Gore, Paul N. Lindsey, and Clyde J. Watts, for plaintiff in error.
    J. Berry King, Atty. Gen., Sebe Christian, Co. Atty., and James Hepburn, Sp. Counsel, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county of destroying public records and was sentenced to serve a term of one year in the state penitentiary and to pay a fine of $1,000.

The prosecution is under section 1624, Comp. St. 1921. It is alleged defendant destroyed:

“* * * a record or paper known as ‘A Sales Record/ or ‘A Tax Sale Record/ or ‘List of Delinquent Taxes/ said record being known and identified by all three of the above descriptive names. * * *”

A brief statement of the background of this case is: Defendant was county treasurer of Creek county; his office had been investigated by the state examiner and inspector and a report made; a question of official misconduct in the sale or resale of real estate for delinquent taxes had arisen, and the Governor under the provisions of section 6, Comp. St. 1921, named James Hepburn, a member of the bar, to appear for the state. A grand jury was called, the special officer named with the county attorney conducted the grand jury examination, which returned the indictment under which this conviction was had.

.Several assignments of error are argued but the first is decisive. It is that the court erred in overruling the motion to set aside the indictment. Considering this contention the record discloses that at the time the grand jury was first impaneled the court in his charge several times referred to defendant by name as the object of the jury’s investigation. After it was impaneled and had been in session for some time, it appeared before the court, and the special counsel in the presence of the jury in substance informed the court that one member was interrupting the investigation; that the proceedings were getting “too rotten” for him; that the state had offered sufficient evidence to warrant an indictment; the grand jury had voted but failed to indict due to the action of the particular juror. He repeatedly asked the court to examine the clerk under oath and ascertain who' voted against the indictment and asked that the juror named be discharged and the grand jury be reimpaneled, in part saying:

“If the court please, this morning the prosecuting attorneys presented to the grand jury an indictment, properly prepared. The evidence upon that indictment was1 — if I am not correct, I want the foreman or any member of the grand jury to correct me — against an individual charging him with a certain crime. The evidence was, two witnesses were sworn and testified that he told them that he committed the crime. A third witness testified in substance that she saw him commit the crime, and begged him not to do it. In addition to that, on that evidence the indictment was presented last night, but the grand jury informed us that they would vote upon it in the morning. They wanted further testimony this morning, and we introduced further testimony. We introduced an affidavit, the original sworn affidavit, sworn to by this man, swearing that he had committed this crime. They then voted on that indictment and failed to indict. * * * The state of Oklahoma, at this time, through the special counsel for the state, requests the court to privately examine the clerk and ascertain who voted against the indictment, under the evidence and the sworn affidavit of the party himself. * * * I am asking the court to discharge this gentleman wearing glasses, and to examine the clerk under oath privately, to ascertain who cast the four votes against the indictment. * * *”

The court then asked if any other member of the grand jury was obstructing the proceedings. Special counsel answered that as a whole the jury was honestly and fairly performing its duty. The juror named was then permitted to make a statement, following which the court discharged him and ordered additional jurors drawn. When the additional jurors appeared in court, they were examined as to qualifications and opportunity for challenge given. Special counsel for the state challenged two additional members of the first panel and who were in the array to be reimpaneled, in part saying:

“* * * We challenge those two jurors for the reason that they were members of the grand jury and that they voted against returning indictments where there was evidence before the grand jury, the sworn affidavit of the party charged, that he committed the crime. The witnesses have not been challenged. Also two witnesses who testified before the grand jury that he told them, the party being investigated told them that he committed the crime. And, in the face of that evidence, these two gentlemen voted against returning the indictment; and we say it comes under that right to challenge under that last clause your honor read. * * * Now, your honor, if those gentlemen, under their oath, say they did vote to return that indictment, of course, I will withdraw my objection, but they did vote not to return it, in the face of that testimony. * * * We make the challenge on the last ground that your honor read, the objection that we are making might also come in under the other sub-division, on the ground of insanity. * * * I insist upon the challenge of these two gentlemen being sustained. * * *”

The court then asked the two jurors if they desired to make a statement and each stated they did not. The court then sustained the challenge to the two jurors, added three of the names drawn to the former panel, reimpaneled them, and the investigation proceeded. Under this state of the record counsel for defendant insist the indictment was procured by coercion.

The contention made under the first proposition is not to any irregularity in drawing or impaneling the jury, nor to the qualifications of any juror. The rule is that statutes for the drawing or impaneling a grand jury or relating to the qualifications of the individual juror are directory and a substantial compliance is sufficient. Viers v. .State, 10 Okla. Cr. 28, 134 Pac. 80; Herndon v. State, 16 Okla. Cr. 586, 185 Pac. 701. Irregularities in drawing or impaneling the grand jury or lack of competency of the individual juror must be challenged before the jury is sworn. Section 2522, Comp. St. 1921; Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 554; Dagg,s v. State, 12 Okla. Cr. 289, 155 Pac. 489. The question here goes to the freedom of the jury to investigate and. to indict or not as it may find the facts from the evidence presented.

The origin of the grand jury system is lost in obscurity. Some have thought the institution existed among the early Athenians; others that it is of Norman origin, brought to England by the Normans. Still others claim its origin as Anglo Saxon. The institution came to this country as a part of the common law. The Federal Constitution as adopted contained no guaranty of indictment by a grand jury, but this was remedied by the fifth article of the Amendments. • This provision applies only to offenses against the United States and does not require that the states shall proceed by indictment for offenses against state laws. Various states of the Union have practically abolished the grand jury. As will be seen from an examination of our Constitution, sections 17 and 18, art. 2, all prosecutions may be begun and carried on without the intervention of a grand jury. Generally speaking, under modern conditions, a grand jury is a superfluous piece of legal machinery. Where prosecuting officers are willing to act there is rarely any reason why this cumbersome proceeding should be invoked. They have the power without a grand jury to make inquisition, to examine witnesses, and to ascertain facts upon which to base a prosecution. It is wise to provide, as has been done in this state, that a grand jury may be called where prosecuting officers will not act but as a part of judicial procedure it is antiquated and well-nigh useless, as is well illustrated by the instant case. Our constitutional provisions in reference to the grand jury are sections 17 and 18, art. 2; the statutory provisions are sections 2513 to 2533, 2551, 3517, Comp. St. 1921.

Section 2597, Comp. St. 1921, provides the grounds for setting aside an indictment. It is not by its terms exclusive of any other ground going to the validity of the indictment. It has generally been said that the grand jury should not be interfered with or its action influenced by outsiders or by public officers. 12 R. C. L. pp. 1040-1042; 28 C. J. p. 802, § 96; The Grand Jury, Edwards 1906, pp. 163, 164. It is held in substance that the coercion of the grand jury into returning an indictment is a ground to set aside. The following, are enlightening cases: Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, 605; Com. v. Bannon, 97 Mass. 214; Blau v. State, 82 Miss. 514, 34 So. 153, 155; Puller v. State, 85 Miss. 199, 37 So. 749, 751; Clair v. State, 40 Neb. 534, 59 N. W. 118, 28 L. R. A. 367; State v. Will, 97 Iowa, 58, 65 N. W. 1010; People v. Both et al., 118 Misc. 414, 193 N. Y. S. 591; State v. McCoy, 89 Ind. App. 330, 166 N. E. 547.

In the Coleman Case, supra, it is said:

“* * * The powers of the grand jury are plenary, and, after the grand jury has been duly organized, the largest part of their legitimate functions are performed by them as a separate and independent body, acting by themselves and separate and apart from the court, and in their deliberations or actions they are not subject to the control of the court or directions from the court other than that they may receive in the charge of the court before they proceed to enter upon their duties or by instructions subsequently given them in open court. They can properly exercise their functions without the presence of the court. In the exercise of their powers, they cannot be interfered with or controlled by the court, but it is their duty to deliberate and to act by themselves. We are supported in these views by the following authorities: * *

In 28 C. J. 786, it is said:

“* * * However, it has been held to be a manifest abuse of discretion for the court in its charge to the grand jury to express an opinion as to the guilt or innocence of a person accused of crime to be investigated, to express an opinion that there is evidence warranting the indictment of parties for violation of particular laws, or specifically to direct the attention of the grand jury to any named person as a subject for investigation. * * *”

In the Blau Case, supra, the court said:

* * That in certain respects the grand jury is to be considered as enjoying a distinct autonomy; that, after they have been organized and charged, part of their legal function is to be performed by them as a separate and independent body, acting by themselves, and apart from the court. The court is neither the keeper of their conscience nor can control in finding facts, but in many other respects they are, of course, subject to the control of the court, and dependent upon it for the execution of powers necessary to the prosecution of their inquiries. The ancient practice of forcing grand juries, by fines and imprisonment, to find indictments against tbeir convictions, is now among civilized nations regarded as one of the barbarities of the common law, and to attempt anything of the kind now would be criminal. The grand jury may at all reasonable times during the discharge of their duties appeal either to the court or to the prosecuting attorney for advice, but this advice must be restricted to matter of law, sufficiency of service, and proper dispatch of the public business. Neither the court nor this officer can say to the grand jury that the facts, as shown by the evidence, are sufficient to authorize them to find a bill. As upon a trial by a petit- jury the judge cannot say that they should return a verdict of guilty, so here the court cannot advise them upon the question of a true bill or not a true bill. * * *”

In the Fuller Case, supra, the court said:

“* * * In the instant case we are constrained to hold that each of the assignments of error based upon the language of the trial judge is well taken. His charge to the grand jury, in which, by name, he called attention to a particular individual, and the connection in which the language was used, must necessarily have grievously biased the minds of the grand jurors against the person SO' invidiously singled out. * * *”

It is obvious that the instruction of the court singling out and naming defendant as the particular person to be investigated and the proceedings in open court in the presence of the grand jury wherein the prosecuting officers criticized and publicly rebuked certain of the jurors for their failure to have voted an indictment and asking that their vote be disclosed and that they be discharged on that ground alone, is coercion and is a violation of section 2546, Comp. St. 1921, which is:

“A grand juror cannot be questioned for anything he may say, or any vote he may give in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty in making an accusation or giving testimony to his fellow jurors.”

Grand jurors, not familiar with court procedure, called to perform a service entirely foreign to any previous experience and under the public eye, seeing their fellow jurors criticized and discharged, would be more than human if they were not intimidated. We are constrained to hold that this proceeding invalidated the action of the grand jury and that the court erred in overruling the motion to set aside the indictment.

Other questions are raised, but it is not necessary to pass on them at this time since the foregoing disposes of this case.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, ., concur.


text:
    Ex parte JESS HOLLINS.
    No. A-8449.
    Sept. 9, 1932.
    (14 Pac. [2d] 243.)
    John J. Carney, for petitioner.

      Owen & Looney, Paul N. Lindsey, and Clyde J. Watts, amici curiae.
    J. Berry King, Atty. Gen., Gus Rinehart, and Sebe Christian, Co. Atty., for respondent.
   CHAPPELL, J.

Jess Hollins filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by S. E. Brown, warden of the penitentiary at McAlester, and that he is confined in such penitentiary.

Petitioner alleges that the proceedings, judgment, and conviction are void for want of due process of law.

The facts in the case appear to be that on the 26th day of December, 1931, rape by force was committed upon the person of one Alta McCollum, an unmarried female of the age of 17 years; that on the 28th day of December, 1931, petitioner was arrested upon a warrant issued by E. H. Snider, a magistrate in the city of Sapulpa, charged with that offense, and was arraigned on the same day; that he requested a preliminary hearing and the same was set for January 2, 1932, before such magistrate; that on the 30th day of December, 1931, the magistrate, on being informed by the county attorney that the petitioner desired to waive preliminary hearing, went to the county jail and there received what purported to be a waiver by petitioner of preliminary hearing, and thereupon he was ordered to appear in the district court without bond; that on the same day and after an ,order of commitment had been filed with the clerk of the district court, the county attorney filed an information against petitioner charging him with rape by force; that on the same day and at about 7:30 o’clock in the nighttime, the judge of the district court convened court for the purpose of arraigning petitioner and to receive his plea to the charge of such information; that petitioner was not represented by counsel either before the magistrate or in the proceedings had in the district court.

The court clerk’s minute record shows the following proceedings to have been had on December 30, 1931:

“.State- of Oklahoma v. Jess Hollins. 3456.
“Defendant arraigned in open court. Information read and defendant states his true name to be Jess Hollins. Defendant waives time to plead and enters a plea of guilty. Defendant waives time for sentence. It is the judgment and sentence of this court that the defendant Jess Hollins suffer the penalty of death in the electric chair at the state penitentiary at McAlester; the date of said execution to be fixed for Friday, March 11, 1932, said execution to be by the warden of said penitentiary, for all of which let execution issue.”

That at the same time and place the following proceedings were had in such court:

“State of Oklahoma, Creek County — ss.:
“In District Court.
“Be it remembered, that the Honorable district court of Creek county, state of Oklahoma, convened at the hour of seven thirty (7:30) p. m. on the 30th day of December, 1931, the same being one of the regular judicial days of the November, 1931, term of said district court, there being present the Honorable Gaylord R. Wilcox, Judge, Willis C. Strange, sheriff, and Ray H. Weakley, court clerk, Sebe -Christian, county attorney, and I. L. Huff, court reporter.
“Thereupon public proclamation being ordered by the court, and announced for the opening of said court, the following proceedings among other things were had and done, to wit:
“.State of Oklahoma v. Jess Hollins. No. 3456.
“The prisoner, the above named Jess Hollins, defendant, being personally present in open court, and said defendant having been legally charged by information of the crime of rape by force, and having been arraigned and entered his plea of guilty to said charge, the said defendant was asked by the court whether he had any legal cause to show why judgment and sentence should not be pronounced against him in accordance with the law in such cases made and provided, and in accordance with his plea of guilty; and the said defendant giving no good reason therefor and no good reason appearing to the court;
“It is therefore considered, ordered, adjudged and decreed by the court, that the said defendant Jess Hollins, be by the sheriff of this county transported and delivered within ten (10) days from this date to the warden of the state penitentiary at McAlester in the state of Oklahoma, and that the said defendant be there confined until Friday, March 11, 1932, and on that said date and within the walls of the said State Penitentiary at McAlester in the state of Oklahoma the said warden of the state penitentiary shall cause the said defendant, Jess Hollins, to be put to death by electrocution, as provided by the laws of. the state of Oklahoma, and that the said defendant, Jess Hollins, pay the costs of this prosecution taxed at |137.15, for which let execution issue.”

That immediately after the entering of such judgment and the adjournment of said court, the sheriff of Creek county transported the petitioner to the penitentiary at McAlester and delivered him into the custody of ,S. E. Brown, the warden, at 2 o’clock a. m. on the 31st day of December, 1931.

That on the 29th day of January, 1932, Judge Wilcox reported to the pardon and parole attorney in writing, which was offered in evidence on the hearing, the proceedings had at the time of petitioner’s arraignment and plea and sentence, and among other things said:

“The fact of the business is, immediately after the commission of the crime two mobs formed to- take this prisoner from the sheriff and lynch him, and it was only by the clever conduct of the officers at the time the arrest was made that they were able to evade the mob and land their prisoner in the county jail. After the defendant made his confession there was great apprehension on the part of the officers that a mob would storm the jail and cause great trouble. They were all very anxious to have the defendant sentenced and taken to the penitentiary as soon as possible, in order to avoid any further trouble, and that is one reason why he was sentenced so soon after the commission of the crime.
“After the information had been filed and the defendant had made his voluntary confession, there was no legal reason why the county should not pass sentence and judgment, and there was every reason why it should be done and the defendant removed to the penitentiary for safe keeping.”

On the hearing of the application, the state called Judge Wilcox, who testified that petitioner was an ignorant Negro, unable to read or write, and of low mentality; that he remembered the occurrence of mob violence in Tulsa and was afraid if the arraignment and sentence was ¡delayed there might be a serious outbreak in Creek county. When asked by a member of the court why he did not appoint counsel for petitioner, he said that since he had pleaded guilty he saw no reason for the appointment of counsel.

The state also- called E. H. Snider, committing magistrate, who testified in substance that when petitioner was arraigned on complaint of the state, he said he had no lawyer and wanted a preliminary examination; that he set this hearing for the 2d day of January, 1932; that on the 30th day of December, 1931, the county attorney informed him that petitioner desired to withdraw his application for preliminary hearing and waive the same; that he did not have petitioner brought to his court room in the city; that he went to the county jail and there received petitioner’s waiver and made an order binding him to appear in the district court; that his reason for going to the county jail was because of his fear of mob violence.

Two questions confront the court:

First. Does the record and evidence disclose due process of law?

Article 2, sec. 7, of the Oklahoma Constitution provides :

“No person shall be deprived of life, liberty, or property, without due process of law.”

This principle is older than written Constitutions. The phrase “due process of law” as used in the Bill of Rights is synonymous with “law of the land.” as found in Magna Charta. By the “law of the land” is clearly intended the general law which reads before it condemns, which proceeds upon inquiry and renders judgment only after trial. It means that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society.

Section 20 of the Bill of Rights (Const, art. 2) provides :

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses. * * * He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

This court has held that the right to a jury trial, to change of venue, to have a copy of the information, to be heard by counsel and the service of the list of witnesses upon him in a capital case more than two days before the trial, may be waived. The waiver of any of these constitutional rights or a plea of guilty should be purely voluntary and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea. Howington v. State, 30 Okla. Cr. 243, 235 Pac. 931; Mullen v. State, 28 Okla. Cr. 218, 230 Pac. 285; Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930; Brown v. State, 39 Okla. Cr. 406, 266 Pac. 476.

In the case at bar, it is only necessary to examine the record and read the evidence to know that this ignorant, defenseless Negro, with the terror of the mob in his mind, did not and could not voluntarily do anything, and therefore did not waive any of his constitutional rights. Perhaps he was not coerced by the officers, but doubtless he was coerced by his fear and by the circumstances of his case.

It was the magistrate’s duty under section 2484, C. O. S. 1921, to immediately upon arraignment of petitioner inform him of the charge against him and of his right to counsel and of his right to waive examination and, if requested, to send for counsel to represent him. Having fixed a day for the preliminary hearing, the magistrate did not wait for that, but, on the request of the county attorney, went to the county jail and there conducted a proceeding two days before the time fixed, as he says, because of fear of a mob. The haste in filing the information in the district court, and the convening of the court in a night session to receive the plea, and the haste in rushing the petitioner to the penitentiary in the nighttime, are all unusual and not according to due and orderly process of law.

No more solemn duty can be imposed upon the court than the duty of protecting and the duty of taking human life. When life is to' be taken under the judgment of a ¿ourt, the act cannot be justified, except by the strict observance of the forms of the law of the land. No act which a court can be called upon to perform is more grave and solemn than to pronounce judgment and sentence upon a plea of guilty in a capital case.

In a case of this kind, where petitioner is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. The court should procure counsel for him if he is unable to procure the same, should give ample time to confer with counsel and prepare for the hearing, and should delay sentence at least the statutory time. A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to1 the due and orderly course of the law.

■Second. The other question is: Will habeas corpus lie?

The Supreme Court of the United States, in Moore et al. v. Dempsey, 261 U. S. 86, 48 S. Ct. 265, 67 L. Ed. 543, granted a writ of habeas corpus where the facts were very similar to those in the case at bar.

This court has uniformly held that habeas corpus will lie where the judgment is void. Ex parte Justus, 8 Okla Cr. 111, 104 Pac. 983, 25 L. R. A. (N. S.) 483; Ex parte Rupert, 6 Okla. Cr. 90, 116 Pac. 350; Ex parte Lair, 29 Okla. Cr. 282, 233 Pac. 789; Ex parte Dunn, 33 Okla. Cr. 190, 242 Pac. 574; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486.

The judgment in the case at bar is void for want of due process of law. The writ is accordingly allowed. Respondent, ,S. E. Brown, warden of the penitentiary, is ordered to surrender petitioner, Jess Hollins, into the custody of the sheriff of Creek county. It is further ordered that petitioner be arraigned in the district court of said county, at a convenient time, and there proceeded against according to law.

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


text:
    JAMES PAUL HICKEY v. STATE.
    No. A-8258.
    Sept. 16, 1932.
    (14 Pac. [2d] 424.)
    Tom Wallace, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years.

It is contended first that the information is insufficient to charge the offense of robbery by force.

The particular defect complained of by defendant is that the language of the information is not sufficient to charge that the property was taken from the immediate presence and possession of the complaining witness, and further it is not alleged that the taking was against his will.

This court had under consideration practically the same question in Payne v. State, 53 Okla. Cr. 37, 6 Pac. (2d) 1073, and there held that information sufficient.

By the use of the language contained in the information in the case at bar, a person of ordinary intelligence would know that the pleader intended to charge this defendant with taking from the immediate presence and possession, and against the will of W. P. Krueger and Paul Parker, the amount of money alleged in the information to have been taken.

No demurrer was filed to this information. Counsel attempted to- raise the question by objection to the introduction of any evidence.

This court has repeatedly held that, where defendant questions the sufficiency of the information for the first time on objection to the introduction of evidence, the objection should be overruled, if, by any intendment or presumption, the indictment or information can be sustained. Wilsford v. State, 8 Okla. Cr. 535, 129 Pac. 80; Harrison v. State, 12 Okla. Cr. 398, 157 Pac. 707; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665; Chamberlain v. State, 42 Okla. Cr. 410, 276 Pac. 507.

While the information is poorly drawn, it was sufficient to charge the offense as against the objection to the introduction of evidence.

It is next contended that the evidence is insufficient to support the verdict of the jury.

Krueger and Paul positively identified the defendant as the person who committed the robbery. The defense was an alibi. This conflict was for the jury, and the evidence amply supports their verdict.

The contentions of the defendant being without merit, the cause is affirmed.

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


text:
    EVERETT LOWERY et al. v. STATE.
    No. A-8387.
    Sept. 16, 1932.
    (14 Pac. [2d] 422.)
    A. C. Brewster, for plaintiffs in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Mayes county of the crime of grand larceny, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state is that the prosecuting witness and his wife attended a public sale in Mayes county, taking with them a Navajo blanket; that this blanket was stolen out of their car; that defendants, who attended the sale, were seen running away from the place where the prosecuting witness’ car was parked, and that defendant Lowery had a package with red coloring in it, which looked like the blanket, under his arm; that defendants pawned this blanket for $8 shortly after the robbery.

Defendants admit they were attending the fair, but deny that they stole or pawned the blanket.

The evidence of the state was sufficient to support the verdict of the jury.

It is next contended that the judgment should be reversed because of a fatal variance between the allegation and the proof of ownership.

The information alleged the ownership of the blanket to be in N. A. Hughes, while the evidence disclosed that Mrs. N. A. Hughes was the real owner; that this blanket had been in the joint possession of the parties ever since they were married and was taken by N. A. Hughes in his car to the place where the larceny was commited.

This court has held this proof of ownership sufficient.

The allegation of ownership of stolen property is supported by proof of any legal interest or special ownership less than absolute title. Little v. State, 21 Okla. Cr. 1, 204 Pac. 305; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Thomas v. State, 34 Okla. Cr. 63, 244 Pac. 1116.

It is also contended that the court permitted incompetent evidence to be introduced as to the market value of the stolen property.

Witnesses for the state testified that the value of the blanket was $25. This was sufficient to make the offense grand larceny.

Finally, defendants contend that the trial court erred in overruling their motion for a new trial because of the alleged disqualification of Jake Gage, one of the jurors.

Defendants attempted to' show that this juror was disqualified by the affidavit of one Monroe Harrington. The record does not contain the voir dire examination of the jurors, nor does it disclose who the jurors were that served in the case. All the matters covered in the Harrington affidavit could have been produced at the voir dire examination. There is not enough in the record upon which to predicate error.

For the reasons stated, the cause is affirmed.

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


text:
    T. C. LAWRENCE v. STATE.
    No. A-8385.
    Sept. 16, 1932.
    (14 Pac. [2d] 425.)

      Chas. L. Harris, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of knowingly receiving stolen property and sentenced to imprisonment in the state penitentiary at McAlester for a •term of two years.

The record in this case was filed April 11, 1932; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: DAVENPORT, P. J. CHAPPELL, J.

text:
    W. T. EVANS v. STATE.
    No. A-8302.
    Sept. 9, 1932.
    Dissenting Opinion Sept. 27, 1932.
    (14 Pac. [2d] 691.)

      Jas. A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was on a charge of a second violation of the prohibition law convicted of transporting intoxicating liquor, and his punishment fixed at a term of one year and one day imprisonment in the state penitentiary, and a fine of $50, and has appealed.

Before the case was called for trial, the defendant filed his motion to suppress the evidence, and offered proof in support of the same, which motion was overruled, and the defendant excepted.

The defendant’s second assignment of error is that the court erred in overruling plaintiff in error’s motion to suppress the evidence. The defendant urges in his motion to suppress the evidence that all the evidence upon which the information is based was illegally obtained by an unlawful search of the automobile of this defendant by the officers without being authorized to make said search by a valid search warrant as required by law; that the pretended search warrant upon which the illegal search and seizure was made was insufficient in both form and substance, as shown by a copy of the search warrant.

In the condition in which we find the record, the second assignment of error is the only one it is deemed necessary to consider. Section 2876, C. O. S. 1921, is as follows :

“A search, warrant is an order in writing, in the name of the state, signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate.”

Section 7009, C. O. ®. 1921, in part is as follows:

“If it shall be made to appear to any judge of any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, sold, bartered, given away, or otherwise furnished, or is being kept for the purpose of being sold, bartered, given away, or otherwise furnished in violation of this act, such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer, in the county, whom the complaint may designate, commanding him to search the premises described and designated in such complaint and warrant and to seize all such liquor there found.”

That part of the search warrant in this case necessary to be referred to is as follows:

“Warrant for Search and Seizure.
“Before me E. B. Ambler, Justice of the Peace, in and for Lincoln County.
“In Be: Application of Lewis Wallace, Sheriff, for search warrant.
“The State of Oklahoma, to-Greeting: Proof by affidavit having been made before me by-stating.”

It is plain to be seen that the search warrant in this case is void, for the reason that it is not directed to any officer in Lincoln county, or any other county in the state. In Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279, this court in its syllabus said:

“A search warrant is ‘process.’ It must run in the name of the state of Oklahoma to some peace officer or peace officers of the state. It can be served only by the officer mentioned in its direction, but by no other person except in aid of the officer on his requiring it, he being present and acting in its execution.” McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307.

It is clearly shown from the record in this case that the search warrant upon which the state relied for the officer’s authority to search the premises of the'defendant was void, for the reason that it was not directed to any peace officer in the county of Lincoln, the county in which the warrant was issued. All of the evidence having been obtained by the services of a void search warrant, it follows that the motion to suppress should have been sustained.

EDWARDS, J., concurs.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion in this case, for the reason that the officers possessed information entitling them to search defendant’s car without a search warrant.

The majority opinion proceeds upon the theory that, since the search warrant was void, that was the only question in the case.

The state conceded the invalidity of the search warrant, because it was not directed to any public officer, but contended that under the facts in the case no search warrant was necessary.

The sheriff testified that, prior to the search of defendant’s car by one of his deputies, he knew the defendant ; that he knew he had been formerly convicted of possession of intoxicating liquor in Lincoln county, and that he had served a term in the county jail for such offense; that on the day of the search of defendant’s car he was advised by Mr. Van Sickel that defendant was still handling whisky, and would be at a certain place that night with a load of whisky; that, if witness would come that night, Van .Sickel would go with him to the place; that Van Sickel furnished him with the description and the license number óf the automobile in which the liquor would be conveyed; that he went with Van Sickel to a vacant house; that witness gave defendant a search warrant, and his deputy raised up the turtleback of the car and found a five-gallon keg of whisky; that immediately thereafter witness arrested defendant.

Under the facts as disclosed by this record, defendant had committed a felony of which the sheriff had knowledge.

Shortly after the adoption of the Fourth Amendment to the Constitution of the United States, the Supreme Court of the United .States began to make a distinction between searching, the home or place of business for that which defendant might lawfully possess and for the search of vessels and other moving vehicles for that which the defendant might not lawfully possess.

In Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 528, 29 L. Ed. 746, that court said:

“The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo.”

In Carroll v. United States, 267 U. S., page 156, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, that court said:

“Practically since the beginning of the Government, the Fourth Amendment has been construed as recognizing a necessary difference between a search for contraband in a store, dwelling house, or other structure for the search • of which a warrant may readily be obtained, and a search of a ship, wagon, automobile or other vehicle which may be easily moved out of the locality or jurisdiction in which the warrant must be sought.
“The intent of Congress to make a distinction between the necessity for a search warrant in the searching, of private dwellings and in that of automobiles and other road vehicles in the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent .with the Fourth Amendment? We think that it is. The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.
“Search without a warrant of an automobile and seizure therein of liquor subject to seizure and destruction under the Prohibition Act, do not violate the amendment if made upon probable cause, i. e., upon belief reasonably arising out of the circumstances known to the officers that the vehicle contains such contraband liquor.
“The seizure is legal if the officer in stopping and searching the vehicle, has reasonable or probable cause for believing that contraband liquor is being illegally transported in it.”

Under the Constitution and laws of the United States and the Constitution and laws of the state of Oklahoma, intoxicating liquor is contraband, and is by the express provisions of the law of Oklahoma declared not to be property.

This court in Britton v. State, 34 Okla. Cr. 391, 246 Pac. 666; Strong v. State, 42 Okla. Cr. 114, 274 Pac. 890; and Murray v. State, 51 Okla. Cr. 44, 299 Pac. 506, recognized the rule laid down in Carroll v. United States, when it said:

“Search of a car without a warrant of arrest, or search warrant, or knowledge by the officers that it contained intoxicating liquor, or without sufficient knowledge to cause an ordinarily prudent person to act, is illegal.”

In the case at bar the officers fell within the rule laid down in Carroll v. United States and the authorities above cited, and no search warrant was necessary.

Contention is also made that the search was illegal because the sheriff did not make the arrest until after the deputy had found the whisky in the back of the car.

Under section 2471, C. O. S. 1921, where a felony has been committed and the officers had reasonable ground to believe the defendant guilty, he had a right to make the arrest. The fact that he handed defendant a void search warrant before making the arrest had no' legal effect upon his authority. If the search warrant was void, what difference did it make whether the arrest was made before or after the delivery of the void warrant, since the officer had a legal right to arrest without any warrant or search warrant?

It is more important that the guilty be punished than that officers be taught how to serve papers, or the courts how to conduct trials.

The evidence in this case overwhelmingly establishes the guilt of defendant. To permit him to escape just punishment upon a question of this kind nullifies the law and defeats justice.