text:
    WILL LOVE v. STATE.
    No. A-7901.
    Opinion Filed May 9, 1931.
    (299 Pac. 232.)
    Clark Nichols and Jack Nichols, for plaintiff.in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of $150 and imprisonment in the county jail for 90 days.

Defendant in his brief says that there are only two questions for consideration in the case, raised by the petition in error, which are set out in the seventh and eleventh subdivisions of said petition in error.

The seventh paragraph of the petition in error is as follows: “That incompetent and irrelevant evidence was permitted to go to the jury over the objection of the plaintiff in error.”

This evidence is as follows:

“Q. Was there a carnival going on? A. There was a carnival going on.
“Q. How near was that to the carnival? A. About four blocks from the carnival.”

This evidence was objected to by the defendant as incompetent, irrelevant, and immaterial, and was overruled by the court. These questions appear to have been asked as preliminary to locate where the defendant was at the time he was arrested. The admission of this evidence could not have prejudiced the defendant in any wise.

The eleventh assignment of error is as follows:

“That the court erred in permitting testimony on behalf of the state relative to evidence found by reason of their search of defendant’s car, after the same had been objected to by the defendant for the reason that said evidence was procured by means of unreasonable search and seizure.”

The officer testified that the defendant drove up in front of the officer’s house, where his motor went dead, and defendant wanted some water; that the officer happened to be out in the yard, and walked out to where defendant was, and said, “What have you got, Bill?” and he said, “I have got some stuff that I am going to take to Muskogee,” and admitted that it was whisky, and I said, “I don’t think you will; I will take charge of the whisky,” so I arrested him and took Mm and the whisky; that the whisky was in a five-gallon keg, partly exposed.

On cross-examination, the witness testified that, at the suggestion of defendant, he took him to police court, where he was fined.

When the state rested, the defendant called the mayor of Checotah, who testified that the defendant entered a plea of guilty before him as magistrate to a charge of possession of whisky and to a charge of transportation of whisky and paid fines for himself and for another man with him amounting to |59.85.

The defendant did not take the witness stand.

What the officer could see and what he knew about the defendant and the fact that defendant told him that whisky was in the car was sufficient information to authorize the officer to arrest defendant and take possession of the whisky. No search of defendant’s car was made, and none was necessary under the facts in this case.

In Miles v. State, 31 Okla. Cr. 4, 236 Pac. 907, this court said:

“An offense is committed or attempted fin the presence of the officer,’ within the meaning of the law, where such officer is apprised by any of his senses that a misdemeanor is being committed or attempted, or by information of such fact communicated by the person arrested prior to his arrest.”

In Bynum v. State, 40 Okla. Cr. 352, 268 Pac. 993, this court said:

“When defendant admitted ownership of the car and the whisky, the officers then had legal knowledge of the commission of a misdemeanor in their presence, and his arrest without a warrant was legal and a subsequent search of the car not an unlawful search.”

The errors complained of being without substantial merit, the cause is affirmed.

EDWARDS, J., concurs.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    S. E. HUGHES v. STATE.
    No. A-7852.
    Opinion Filed May 16, 1931.
    (299 Pac. 240.)
    Ralls & Ralls, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant was convicted in the county court of Atoka county of the crime of unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The defendant complains of numerous errors, but to dispose of the case it will only be necessary to consider one.

The state was permitted to show by the complaining witness that he bought from the defendant the whisky alleged in the complaint, and that also, on other occasions prior to this sale, he had bought whisky from the defendant. The general rule is that the state cannot show that the accused has committed other crimes.

Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged. Emerson v. State, 18 Okla. Cr. 109, 193 Pac. 743.

Where the state charges and relies upon a particular sale to constitute a violation of the prohibition law, it is error for the court to permit proof of other sales. Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204.

In Alexander v. State, 24 Okla. Cr. 435, 218 Pac. 543, this court said:

“Where the information charged a single sale to a named person on a certain date, proof of other alleged sales to another person at different times and on different occasions was improperly admitted over objection of accused ; no question of knowledge, design, intent, or mistake, or other such element entering into the issues formed by the evidence, to make such evidence admissible.”

See, also, Satterfield v. State, 32 Okla. Cr. 98, 240 Pac. 151.

In the case at bar, the state relied upon a particular sale. The case was closely contested. The state relied upon the evidence of one witness to prove the sale. The sale was denied by defendant, and he was corroborated by other witnesses who testified that the complaining witness was not at defendant’s place of business at the time the sale was claimed to have been made.

For the admission of this incompetent evidence, the cause is reversed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


author: EDWARDS, J.

text:
    G. W. MOORE v. STATE.
    No. A-7834.
    Opinion Filed May 16, 1931.
    (299 Pac. 239.)
    Hendon & Hendon and Kienzle & Hickok, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the .State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of manslaughter in the first degree, and he was sentenced to serve a term of six years in the state penitentiary.

Defendant was running a small restaurant near Hoover City, an oil field town, near the city of Maud. His wife worked at this restaurant, and the homicide was due to jealousy on account of attentions paid by W. R. Stover, deceased, to' defendant’s wife. The fatal shooting occurred at the rear of the restaurant; deceased was shot twice. The evidence is that he was unarmed at the time. The plea of self-defense was interposed.

The principal witnesses for the state were Royal and Doyle Purdon, two boys eight years of age who lived with their parents nest door to the restaurant. Defendant .contends that they were not competent witnesses as not understanding the nature and obligations of an oath as required by section 589, Comp. St. 1921. Before they were admitted as witnesses, the court questioned them at some length. They evidently received just impressions and were able to relate them clearly, correctly, and truly. From this examination they appear thoroughly qualified to testify under the rule in the cases of Darneal v. State, 14 Okla. Cr. 540, 174 Pac. 290, 1 A. L. R. 638; Barker v. State, 33 Okla. Cr. 25, 242 Pac. 274, 275; Stuart v. State, 35 Okla. Cr. 103, 249 Pac. 159.

Further complaint is made that the evidence .does not sustain the judgment and that the jury did not follow the instructions of the court. The contention is not tenable. The record discloses that defendant was 56 years of age, had previously been convicted in the state of Texas on a charge of murder; his wife was his second marriage; she was about 19 years of age. The evidence indicates deceased may have been guilty of some liaison with her, but at the time of the homicide he was in the rear of the restaurant attempting to hide from defendant. The defendant may have had a cause of grievance against deceased, but an aggrieved person is not permitted to. take the law in his own hands and slay an offender under the circumstances here proven. Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153; Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821. The jury must have been so impressed, for otherwise the evidence would warrant a much more severe penalty than that imposed. We find no material error in the record.

The case is affirmed.

DAVENPOET, P. J., and CHAPPELL, J., concur.


text:
    CHARLEY PRINCE v. STATE.
    No. A-7550.
    Opinion Filed May 16, 1931.
    (299 Pac. 1085.)
    A. M. Eeinwand, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Comanche county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement for a period of 30 days in the county jail.

The appeal in this case was filed in this court on the 14th day of September, 1929. Plaintiff in error had been given time to file brief, which had not expired at the time a per curiam opinion (48 Okla. Cr. 253, 290 Pac. 1118) was filed. Petition for rehearing was filed on August 22, 1930, and denied on August 23 d. On August 26th, mandate was stayed, and the matter now comes on for reconsideration upon the plaintiff in error’s petition for rehearing which was inadvertently denied.

Briefs were filed in due time, and the court has carefully considered the questions raised; the principal contention being that the evidence is insufficient to support the verdict of the jury.

No error appearing upon the record depriving defendant of any substantial right, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


author: PER CURIAM.

text:
    CHARLES HARVEY v. STATE.
    No. A-7778.
    Opinion Filed May 16, 1931.
    (299 Pac. 1084.)
    L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted 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.

Certain officers went to the place occupied by defendant and saw a quantity of what appeared to' be beer. They procured a search warrant, and later returned and found a small quantity of beer in the house and some 90 bottles just across the alley on an adjoining lot, with fresh tracks from the house leading to it, indicating that it had just been deposited there. Defendant denied any knowledge or connection with the beer found, and testified, in substance, that he was at the place at the time but had no knowledge or connection with the beer, but resided with his brother at a different place.

The case is not strong on the facts, but there is sufficient evidence to sustain the judgment.

The case is affirmed.


text:
    FRANK REININGER v. STATE.
    No. A-7828.
    Opinion Filed May 16, 1931.
    (299 Pac. 236.)
    Corn & Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the ¡State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey 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.

Several assignments are set out in the petition in error, only one of which it will he necessary to notice. In instruction No. 4, the court instructed the jury as follows:

“Fourth. The jury are instructed that if they find and believe from the evidence in this case, beyond a reasonable doubt, that the said defendant, on or about December 30,1929, and prior to the filing of this information, had in his possession more than one quart of whisky, the possession of said amount in excess of one quart shall be prima facie evidence that the said defendant had said liquor with intent to violate the law therewith; but this presumption of the law that said defendant had such liquor with intent to violate the law, may be overcome by the defendant by showing that said liquor was not kept, by him with unlawful intent.”

This instruction clearly puts the burden of proof on the defendant to overcome the presumption. The law is that, if upon the whole case the jury entertains a reasonable doubt of the guilt of defendant, he should be acquitted. This instruction is prejudicial, requiring a reversal. Thornhill v. State, 47 Okla. Cr. 9, 287 Pac. 743.

The case is reversed.

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


text:
    BILL SHIVER v. STATE.
    No. A-7848.
    Opinion Filed May 16, 1931.
    Rehearing Denied May 23, 1931.
    (299 Pac. 235.)

      E. B. McMahan, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the .State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Cimarron county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days.

The evidence of the state was that at about 10 o’clock at night the officers saw the lights of a car going on and off in a peculiar manner, and suspicioning whisky runners, went to the place where the car had stopped, and found seven pints of whisky concealed by some posts and tin cans; that the officers hid near the place, and that at about 12 o’clock the defendant came to where the liquor was concealed and gathered up two pints and started to return to the car, where two other men were waiting; that the officers commanded the defendant to halt, but he fled; that the officer pursuing him fired his revolver into the ground by the side of defendant, whereupon defendant fell, and, as the officer came up, defendant was pushing the two pints of whisky away from him; that, after defendant was arrested, he started to run again, but was overpowered by the officers and taken to jail.

Defendant, testifying for himself, admitted going to the place where the liquor was concealed, but sought to explain his going there by saying that he had been told by a man who worked in the pool hall that some whisky was concealed there, and that he went there to get a drink; that the man who told him was gone from the country at the time of the trial.

Defendant contends, first, that the evidence is insufficient to support the verdict of the jury, for the reason that the proof only shows one quart of whisky in defendant’s possession, and the state offered no proof of intent. There were seven pints of whisky at the place where defendant got the two pints. That, together with the circumstance of defendant seeking to escape, was sufficient evidence to establish the intent.

Defendant next contends that the court erred in giving additional instructions to the jury. It appears from the record that the jury returned into the courtroom, asking for additional instructions upon the question of intent, and that the court in substance told the jury that to constitute the crime there must have been an unlawful intent to barter, sell, or give away, but that it was not necessary to prove this intent by direct evidence; that intent was hard to prove, but may be proved by the facts and circumstances in the case.

Defendant excepted to that part of the instruction which said that “intent is hard to' prove and may be proven by the circumstances in the case.” Intent is usually established by the facts and circumstances in the case, and is hai*d to prove.

Defendant next complains that the court erred in permitting the county attorney to go out of the record and express his personal opinion of the guilt of defendant. Defendant in his brief says:

“While the court doubtless would not reverse a case on such a statement alone, yet when this statement was made in connection with the discourse of the trial court on the evidence in the verbal instruction given as stated in previous proposition, it was no doubt partially responsible for tbe verdict which was rendered in the case.”

Counsel for the state should stay in the record, and should not express an opinion of the guilt or innocence of the accused independent of the evidence. However, we agree with counsel for defendant that this error is not sufficient to require a reversal of the case.

The other errors complained of being without substantial merit, the cause is affirmed.

EDWARDS, J., concurs. DAYENPORT, P. J., absent.


text:
    EARL HERREN v. STATE.
    No. A-7770.
    Opinion Filed May 16, 1931.
    (299 Pac. 234.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of the crime of grand larceny, and bis punishment fixed by the jury at imprisonment in the state penitentiary for one year and one day.

As in most cases of this character, the evidence of the state is principally circumstantial. It was that Stuart Brothers were teaming contractors with a teaming camp in the neighborhood of ,St. Louis, in Pottawatomie county, and had a corral and buildings where they kept their live stock, harness, wagons, boomer chains, and boomers; the defendant lived something like a mile and a half from this camp and had a brother-in-law, Elzo Holley, who lived near the Stuart Brothers’ corral; that William Holley, the father of Elzo Holley, jointly charged with this defendant, lived in McCurtain county; and that all the parties had formerly lived in’McCurtain county.

That on the night the property was stolen, the defendant was seen in Stuart Brothers’ corral at about 12 o’clock; that there was snow on the ground and on the wagon in the corral out of which boomers and boomer chains were taken; that the track of a man with a peculiar shoe heel was found in the snow in the wagon, and that this same track was found at defendant’s car the next morning; that it was this peculiar shoe heel that gave the officers a clue to the perpetrators of the crime; that on the morning after the taking of the property the defendant and some one else were seen at Elzo Holley’s place, near the corral, in the act of putting chains on the car, and when one of Stuart Brothers’ men came in sight, they picked up the chains and placed them in the car and drove away; that some time later, defendant drove to McCurtain county and was there seen with boomer chains and boomers and lines similar to those that had been stolen from St. Louis; that later this property was located and taken by the officers and returned to Stuart Brothers and later identified and introduced in evidence; that some time in July the bridles were found in the creek down in the community where the defendant was seen with the other stolen property; that these bridles on account of their peculiar make were identified as the property stolen from Stuart Brothers at the time of the alleged theft of the other property.

That at the time defendant was arrested he denied knowing anything about any of the property, but on the witness stand admitted that he did take two lines and. a boomer and boomer chains down to McCurtain county, but claimed they had been given him by a relative in Pottawatomie county and that they were not stolen.

Defendant contends that this evidence is insufficient to support the verdict of the jury.

Under this assignment defendant insists that the witnesses for the state were not particular enough in identifying the property. It is sufficient to say that this character of property is hard to identify, but the identification was sufficient to' establish that it was the property of Stuart Brothers and that it was stolen from their premises on the night the defendant was seen in the corral, and that this was the same property that the defendant had taken to McCurtain county.

This court has uniformly held that where there is any competent evidence in the record from which a jury could legitimately arrive at the conclusion that the appellant is guilty, a new trial will not be granted on the ground of the insufficiency of the evidence unless it be made to appear by the record that the jury was influenced by improper motives in convicting the appellant. Boucher v. State, 6 Okla. Cr. 387, 118 Pac. 1002, and many other cases of like import.

Defendant next contends that the court erred in admitting hearsay evidence.

Walter Brady, a witness for the defendant, had testified on direct examination that his wife was a relative of defendant and also testified to a state of facts that tended to establish the innocence of the defendant. On cross-examination he was ashed if he did not tell Mr. Stacey, Mr. Gates, and Mr. Laird the next morning that he knew defendant and Holley had stolen the stuff the night before. These questions were evidently asked the witness for the purpose, of impeachment and in order to show that he had made contrary statements on other occasions. The state thereupon called Stacey as a witness, who testified to the contrary statements having been made by the witness.

Defendant’s counsel moved to strike this testimony and take it away from the jury as being incompetent, irrelevant, and immaterial and made in the absence of the defendant. The court overruled the motion, but instructed the jury that this evidence was not offered for the purpose of showing the guilt of the defendant, but was merely introduced for the purpose of impeaching the statement of the witness, in which he testified in chief that he did not go to the corral that night.

The state had a right to bring out the relationship of the witness to defendant and any previous statements he had made that tended to contradict the testimony he was then giving. Under the instructions of the court the jury could not have been misled by this evidence.

The court on its own motion gave the usual instructions on circumstantial evidence.

The record discloses that the defendant had a fair trial and the evidence fairly establishes his guilt.

For the reasons stated, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., ab- ' sent.


text:
    WILLIAM PULLENS v. STATE.
    No. A-7851.
    Opinion Filed May 16, 1931.
    (299 Pac. 231.)
    Chas. G. Ozmun, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county of the crime of unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of <¡>175 and imprisonment in the county jail for a period of 90 days.

The evidence of the state was that the defendant sold nine pints of beer to three Indians and charged them 25 cents per bottle; that this beer was drunk on the premises and that it was intoxicating; and that one of the Indians who drank the beer died that night.

Defendant denied that he knew the Indians or had sold them any beer, and sought to establish an alibi on that day.

The defendant contends first that the court erred in admitting incompetent testimony.

Defendant, testifying for himself, on direct examination said, in substance, that he did not sell these Indians any beer, and in answer to the direct question if he had ever sold anybody any beer, he answered that he had never sold any beer. His counsel asked him if he had been convicted of selling beer and he said he never had.

On cross-examination the state asked the defendant if the officers had not been out and raided his house and found beer in the house and around the premises. Defendant answered he believed he had a few bottles there a few years ago, but denied that he had ever been convicted. The state then called G. H. Frampton, sheriff, who testified in substance that he had known the defendant for ten years, and that during the past two years they had searched defendant’s premises something like half a dozen times and never found much of anything in his house; little signs of stuff there and around close on other lots; it was not much trouble to gO' out there and get up a sack of beer at any time.

The defendant having put his character in issue in his direct examination, it was competent for the state on cross-examination to ask him the questions propounded by the county attorney, and it was further competent for the state on rebuttal to show that beer had been found at defendant’s premises prior to the time of the alleged sale to the Indians.

Defendant contends that the evidence is insufficient to support the verdict of the jury and that the punishment assessed is excessive.

Considering all of the facts in the case and the further fact that one of the Indians died a few hours after drinking this beer, we cannot say that the punishment assessed by the jury is excessive.

No sufficient error appearing upon the record, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    L. CAVENDER v. STATE.
    No. A-7680.
    Opinion Filed April 18, 1931.
    Rehearing Denied May 16, 1931.
    (298 Pac. 899.)
    M. P. Hudson and Bascom Coker, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McCur-tain county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers had a search warrant, and on searching the premises of defendant found four gallons of whisky in the garage operated by defendant. The defendant denied that this was his whisky or that he knew it was in the garage.

Defendant contends, first, that this evidence is insufficient to support the verdict of the jury, but the same is without merit.

Defendant next contends that the court erred in receiving the evidence secured under the search warrant, for the reason that the return of the warrant failed to show any service upon the defendant.

Where the defendant raises the question of the sufficiency of the affidavit, or the warrant, or the service thereof, the burden is upon him. Since the defendant made no showing to the contrary, the presumption of law is that the officer did his duty and served the writ.

The other errors complained of by the defendant are equally without merit.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


text:
    JIM THIGPEN v. STATE.
    No. A-7804.
    Opinion Filed May 16, 1931.
    (299 Pac. 230.)

      L. A. Wallace, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The record discloses that, at the time charged, certain officers with a search warrant went to the residence of defendant. No one was at the place, and the officers unlocked the door with a pass-key and found a considerable quantity of beer and wine. They served a warrant by leaving a copy on a table in the house.

It is argued that the search was invalid for the reason that the entering of the house was unlawful. Section 2883, Comp. St. 1921, referring to search warrants, provides :

“The officer may break open an outer or inner door or window of a house, or any part of the house, or anything therein, to execute the warrant, if, after notice of his authority and purpose he be refused admittance.”

■Section 7009, Comp. St. 1921, providing the manner of service of search warrants is in part:

“i:‘ * * A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person.be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

Since the provisions of the law as to search warrants are drastic in their nature and the restrictions imposed are intended to preserve the sanctity of the home, the officer attempting to serve a search warrant should carefully observe these restrictions of law. However, the law does not require the doing of useless things in order to comply literally with the terms of a statute. It is obvious that an officer armed with a search warrant is not required to demand entrance into a house when no one is there on whom demand could be made. There are few authorities upon this point. In Androscoggin R. Co. v. Richards, 41 Me. 233, it was held that an officer with a warrant to search for intoxicating, liquors is not liable in trespass for breaking and entering a depot to serve such warrant where at the time of the entry the depot was locked and there was no one about to whom such request for admittance could have been made. In U. S. v. Camarota et al. (D. C.) 27 F. 388, it was held that the occupant of premises could not avoid the effect of a search warrant by absenting himself from the premises.

Where an officer is armed with a valid search warrant authorizing the search of a house, and no one is present therein of whom he may demand entrance, he is well within his rights in unlocking the door to enter the building. There appears to have been no objection to the manner of service of the search warrant by leaving a copy on the table instead of posting on the door as required by statute.

The case is affirmed.

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


text:
    C. L. SMITH v. STATE.
    No. A-7787.

    Opinion Filed March 28, 1931.
    Rehearing Denied May 19, 1931.
    (299 Pac. 229.)
    Hart, Edwards, Wells & Greer, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of stealing chickens in the nighttime, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

Defendant in his brief admits that the chickens were stolen from one E. L. Gravitt, as alleged in the information, and admits that the car in which the chickens were found on the night of the theft belonged to him, and that a coat found in the car immediately following the theft belonged to him, but denies that he had anything to do with the theft of the chickens.

The evidence of the state was that the chickens were stolen at about midnight from the premises of one Gravitt; that a nephew of Gravitt was staying at his uncle’s place, but had been away in the evening; that, as he returned at about 12 o’clock, he saw a Ford roadster sitting by the side of the road about a quarter of a mile from his uncle’s house; that on reaching the house he discovered that the chickens had been stolen and gave the alarm; that about that time this Ford roadster was driven away from the place where it had been parked, and that the nephew with a neighbor pursued the car for several miles; that, when they forced the car to stop, a man jumped out of the car and ran through the field; that the chickens were found in this car, and that the appearance of the “turtle back” of the car was that the car had been used for some time to haul and store chickens; that a coat and cap belonging to defendant were found in the car; that a short distance from the car a piece of red sweater was found clinging to a bush, and that defendant owned and wore a red sweater which matched these strands; that a letter was found in the pocket of the coat addressed to defendant; that the night the chickens were stolen defendant disappeared from his home and was gone for 30 days.

The evidence of the state is entirely circumstantial, but when the facts and circumstances are all considered together they are conclusive of the guilt of the defendant.

In Caple v. State, 3 Okla. Cr. 621, 105 Pac. 681, this court said:

“The statute makes the jury in the trial court the exclusive judges of all matters of fact, and this court will not disturb their finding, unless it is so clearly unsupported by testimony as to create a strong presumption that the jury was influenced by improper motives in reaching a verdict.”

See, also, Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1173; Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948; Loudermilk v. State, 33 Okla. Cr. 146, 242 Pac. 1060.

There being no merit in defendant’s contention that the evidence does not support the verdict of the jury, the cause is therefore affirmed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.


text:
    GEORGE ROBNETT v. STATE.
    No. A-7926.
    Opinion Filed April 25, 1931.
    Rehearing Denied May 19, 1931.
    (299 Pac. 241.)
    H. W. Morgan, 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 Kingfisher county of the crime of larceny of two steers, and his punishment fixed by the court at imprisonment in the state penitentiary for fire years.

The evidence of the state, as in most larceny cases, is largely circumstantial. A. P. Williams, a farmer living in Kingfisher county, testified that the two steers in question were kept in a pasture at his home; that the same were stolen on the night of April 80, 1929; that these animals were hauled away in some kind of a motor vehicle, tracks of the car being discovered at the place where the animals were loaded.

On the morning, of May 1st, between 6 and 7 o’clock, these stolen animals were sold to a commission house at the Oklahoma City stockyards. The person who- sold these animals represented that his name was Frank Wade. That a check was given in payment for the cattle in the name of Frank Wade, and was indorsed “Frank Wade” in the office of the commission company; that, as soon as the bank was open, this check was cashed, the bank requiring the indorsement “Frank Wade” as a further identification; that at about 9 o’clock the commission company learned that the cattle had been stolen and tried to stop payment on the check, but it had already been cashed by the bank. Mr. Savage, the commission company agent, being suspicious of the transaction, had taken the license number of the car, and, on going up on Reno avenue, discovered the car parked in the 500 block; that the car was watched until midnight, and, no one appearing to claim it, it was taken to the police station. On the next morning defendant appeared at the police station to claim the car, giving his name as Ted Wensel, and thereupon was detained by the police and induced to sign the name Frank Wade and his own name, George Robnett, for comparison.

F. B. Finch, foreman of the stockyards company, testified that the defendant was in possession of the car at the time the stolen cattle were unloaded. The agent for the commission firm testified that the defendant was not the man from whom he bought the cattle. The state called two bankers in the city of Kingfisher who qualified as experts in handwriting and testified that in their opinion the defendant had signed the name Frank Wade to the check.

Defendant admitted that he went to Oklahoma City and claimed the car, but claimed that Ted Wensel had agreed to pay him $5 to get his car, and that he had no knowledge that the cattle had been stolen, and had nothing to do with the stealing. He admitted that he wrote the names Frank Wade and George Robnett at the police station upon the blank piece of paper which had been introduced by the state, but denied that he had written the name Frank Wade on the back of the check for the stolen cattle. The defense was an alibi.

It is argued first that this evidence is insufficient to support the verdict of the jury.

We cannot agree with this contention. The jury were not bound to believe the evidence of the defendant and his witnesses that he was in another place, but had a right to believe the evidence of the state. When this evidence is considered in connection with all the facts and circumstances of the case, it is sufficient to support the verdict of the jury.

Defendant next contends that the court erred in permitting the state to indorse the names of Elmer Solomon and Mr. Bingham upon the information after the trial had begun.

It appears from tbe record that tbe state bad closed its case and tbe defendant bad offered bis evidence. Thereupon, tbe state asked leave to reopen its case and offer tbe evidence of these witnesses in chief. This permission was granted by tbe court and is tbe basis of defendant’s complaint.

In felony cases less than capital, tbe names of additional witnesses may be indorsed upon tbe information or indictment at any time within tbe discretion of tbe court, and this discretion will not be reviewed upon appeal, unless tbe record shows that it was abused. Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Montgomery v. State, 19 Okla. Cr. 224, 199 Pac. 222; Thomas v. State, 20 Okla. Cr. 151, 201 Pac. 662.

Defendant complains of other errors, but they are all without substantial merit.

Tbe minimum punishment provided by law for an offense of this character is two years. Tbe jury were unable to agree upon tbe punishment and left tbe fixing of the same to tbe court. Under all tbe facts and circumstances in tbe case, five years appears to be excessive punishment, and that justice will be done the state and tbe defendant by reducing tbe punishment to imprisonment in the state penitentiary for two years.

For tbe reasons stated, tbe judgment is modified to imprisonment in tbe penitentiary for two* years, and, as modified, the same is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    PINKEY SMILEY v. STATE.
    No. A-7887.
    Opinion Filed May 2, 1931.
    Rehearing Denied May 23, 1931.
    (299 Pac. 1086.)
    Rice & Mitchell, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted of the crime of unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of $125 and imprisonment in the county jail for 100 days.

The evidence of the state was that the defendant was a porter in a barber shop and shoe shining parlor; that he sold a half pint of whisky to one F. M. Foster, who paid him $1 for same. This whisky was marked and delivered to the sheriff and introduced in evidence. Foster testified that Red Hays was with him when he bought the whisky and took a drink of it.

Hays, testifying for the defendant, admitted that he was with Foster at defendant’s place of business at the time alleged in the information, and admitted that he took a drink with Foster, but said, if Foster bought any whisky from the defendant, he did not see it.

Defendant presents but one question, the sufficiency of the evidence.

This contention is without any merit.

The cause is therefore affirmed.

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


text:
    O. C. COMBEST v. STATE.
    No. A-7705.
    Opinion Filed May 23, 1931.
    (299 Pac. 920.)
    Sam S. Gill, 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 county court of Oklahoma county of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $500 and to serve six months in the county jail.

At the time charged, certain officers with a search warrant went to' defendant’s residence. They first searched an automobile sitting in front of the house and in it found four gallons of whisky. They then searched the house and found a half-gallon of whisky concealed in a cupboard. About this time defendant came into the house and stated to the officers that the whisky belonged to him; that his wife did not have anything to do with it, and further said: “I am handling whisky but not in the amount you think.” Over objection the state was permitted to prove that defendant’s wife in his presence said in substance that the whisky belonged to defendant and she was trying to get him to quit selling it. Defendant did not take the stand and offered no testimony.

Complaint is made that the information is insufficient in failing to allege that the offense was committed prior to the filing of the information. The information alleges the offense was committed on June 26, 1929, the same day the information was filed. Section 2563, Comp. Stat. 1921, sets out the essentials of an indictment or information. In subdivision 5 it is provided the indictment or information is sufficient if it can be understood therefrom “that the offense was committed at some time prior to the time of filing the indictment or information.” In subdivision 6, Id., it is provided the information is sufficient if “ * * * the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” This court, in Turnage v. State, 40 Okla. Cr. 180, 267 Pac. 1038, in substance, held that where an offense is alleged to have been committed on the same day the information is sworn to and filed, the information should contain the allegation that the offense was committed anterior to the filing of the information. That decision is based on a statement in Wharton’s Crim. Pro. vol. 1, p. 216, § 162, as follows: “To assign the day as that of the finding of a bill (unless and by a specific averment that the offense was prior to the finding) is bad.” Several authorities are cited by Wharton in the note in support of the text. We have examined all these authorities and only the Texas cases are in point. Joel v. State, 28 Tex. 642; Williams v. State, 12 Tex. App. 226.

Our statute is controlling. Section 2563, subdivisions 5 and 6, supra. When the information is such that it can be understood therefrom that the offense was committed prior to the time it is filed, and in such manner as to enable a person of common understanding to know what is intended, it is sufficient. The information in this case charges in the past tense that defendant “did * * * commit the crime, etc., * * * for that he did then and there, etc., * * have the possession of * * * whisky. * * *” Can it be said that it is necessary to allege the commission of the offense in the past tense and to further allege it was committed before the filing of the charge? Certainly not. In an ordinary conversation, if one person tells another that he did a certain thing on the particular day on which the conversation occurred, would not the person spoken to clearly understand that the matter referred to had already been done? An offense charged in the past tense is an allegation that the offense has already been committed. No person of common intelligence could understand anything else. Any other view is ridiculous. In so far as the Turnage Case, supra, is in conflict with the views herein stated, it is expressly overruled.

The contention is made that the court erred in admitting testimony of a statement, made by the wife at the time of the arrest, that she was trying to get defendant to quit selling whisky. With this contention we are in entire accord. The statement was inadmissible for two reasons: First, the wife was an incompetent witness against the husband. Second, the statement was hearsay, and defendant was not called upon to contradict it. Admitting this statement in evidence was error. Section 2699, Comp. Stat. 1921. Jenkins v. State, 28 Okla. Cr. 249, 230 Pac. 293.

It is also argued that the search of the automobile sitting in front of defendant’s house was unlawful and evidence obtained thereby inadmissible. With this contention we are also in accord. The officers had no warrant to search the automobile and the search was unlawful. Smith v. State, 48 Okla. Cr. 115, 289 Pac. 792; Bowen v. State, 50 Okla. Cr. 36, 295 Pac. 623.

The question we must determine then is: Do these errors require a reversal? The search of the house was legal and the half-gallon of whisky found therein, being sufficient in quantity to raise a presumption of an intent to violate the law, and the further undisputed testimony of the officer that defendant at the time told the officer the whisky was his, that he was handling whisky but not in the quantity the officer suspected, is such that no honest jury could have returned a verdict other than guilty. The admission of this incompetent evidence, however, no doubt influenced the jury in assessing the maximum punishment. If the judgment be modified by reducing the punishment assessed to the minimum fixed by law, no prejudice will have resulted. Section 2822, Comp. Stat. 1921. The judgment, therefore, is modified to a fine of $50 and a term of 30 days in the county jail.

As modified, the case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    OSCAR DODD v. STATE.
    No. A-7728.
    Opinion Filed May 23, 1931.
    (299 Pac. 504.)
    L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield 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.

Judgment was entered November 16, 1929, at which time defendant was given 80 days to file his appeal in this court. The appeal was lodged in this court February 13, 1930, more than 80 days after the judgment was rendered. Extensions of time were allowed in which to make and serve case-made, but no extension of time was ever made in which to file the appeal in this conrt. An extension of time to make and serve case-made does not automatically extend the-time to file appeal. The appeal not having been filed within the time fixed, this conrt does not acquire jurisdiction. Aubrey v. State, 38 Okla. Cr. 271, 260 Pac. 783, and cases cited therein.

The appeal is dismissed.


text:
    JERRY COCKBURN v. STATE.
    No. A-7861.
    Opinion Filed May 23, 1931.
    (299 Pac. 505.)
    Corn & Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of |300 and to serve 30 days in the county jail.

The appeal is dismissed.


text:
    TOM MURRAY v. STATE.
    No. A-7856.
    Opinion Filed May 23, 1931.
    (299 Pac. 506.)
    Grim & Grim, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Cleveland county of the crime of unlawful transportation of intoxicating liquor, and adjudged to pay a fine of $500 and serve six months in the county jail.

The evidence of the state was that the sheriff and a deputy were driving on the highway in McClain county, and observed defendant in his car ahead of them; that they did not know him and followed him until after he crossed the Newcastle Bridge in Cleveland county, and then attempted to arrest him; that from his actions they believed he had whisky in his car; that they could not see any liquor and did not know he had any in the car until they forced him to stop; that they had no warrant for the arrest of defendant and no search warrant for his car.

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, and the evidence so obtained should have been excluded upon timely objection. Britton v. State, 34 Okla. Cr. 391, 246 Pac. 666; Strong v. State, 42 Okla. Cr. 114, 274 Pac. 890.

In the case at bar the evidence obtained by the officers in the unlawful search was admitted over the timely objections of the defendant.

This evidence being inadmissible, and there being no other competent evidence in the record to support the verdict, the cause is reversed.


text:
    H. D. MURRAY v. STATE.
    No. A-7854.
    Opinion Filed May 23, 1931.
    (299 Pac. 506.)
    Fogg & Melone, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of the crime of unlawful possession of a still, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for 60 days.

The evidence of the state w%s that the officers, having a search warrant, searched the premises of defendant; that when they reached defendant’s home there were a woman and some children in the yard; that the officers gave a copy of. the search warrant to the defendant’s wife; that a little way west of the house there was a lane leading from the house to the pasture; that the officers folloAved some tracts down that lane for 200 or 300 yards; that there was snow on the ground and the tracks were easy to folloAv; that about 300 yards from the house they heard some men talking, and going around the corner of a hill could see a cave door; that two men were in the cave pumping water; that one of the men was the defendant; that there Avas a complete distillery in the cave. This apparatus was identified and introduced in evidence as the state’s exhibit A. That this distillery was capable of being used for distillation of whisky.

On cross-examination the officer testified that he also found 6 sacks of sugar, a sack of bran, and 64 gallons of whisky.

The defendant did not take the witness stand, but offered evidence of good character.

After the state and defendant had closed their evidence and the court had instructed the jury, the defendant renewed his demurrer to the evidence and stated as ground therefor that the evidence was insufficient to support a verdict of guilty for the reason that there was no evidence introduced by the state that the still found on the premises was capable of being used in tlie distillation of intoxicating liquor. Thereupon, the court permitted the state to reopen its case and recall the officer who made the search and permit him to testify that the still captured was capable of being used for the distillation of intoxicating liquor.

This contention is without merit, for two reasons:

First. Because C. A. Pearce, the deputy sheriff who made the raid and seized the still, testified on direct examination as follows:

“Q. What is that apparatus capable of being used for? A. Distilling whisky.
“Q. We will call this exhibit A, this whole apparatus here. What does exhibit A consist of? A. Consists of a complete distillery.”

This evidence of the state was sufficient to support the allegation in the information that the distillery was capable of being used for the manufacture of whisky.

The second reason why this contention is untenable is that it was within the sound discretion of the trial court to permit the case to be reopened, even after argument had begun, and permit the state to prove, if possible, some necessary fact in the case. Harvey v. Territory, 11 Okla. 156, 65 Pac. 837; Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609.

It was not necessary for the court to permit the case to be reopened for the purpose of making this proof, but no doubt out of an abundance of caution the court permitted this to be done. The evidence was sufficient to support the verdict of the jury before the case was reopened.

No prejudice appearing upon the face of the record, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    BARNEY McGUIRE v. STATE.
    No. A-7837.
    Opinion Filed May 23, 1931.
    (299 Pac. 507.)
    W. H. Parker, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Barney McGuire, was convicted in the county court of Atoka county of selling a pint of whisky to one J. J. Province, and his punishment fixed by the court at a fine of $50 and imprisonment in the county jail for a period of 30 days.

J. J. Province, testifying for the state, swore positively that he bought a pint of whisky from the defendant in his rooming house in the town of Stringtown, about January 1, 1930.

Defendant, testifying for himself, denied selling this whisky. The trial court, without objection on the part of counsel for defendant, after the state had proved that the defendant’s place of business was a place of public resort, permitted the county attorney to show the general reputation of such place as a place where intoxicating liquor was sold. The admission of this evidence was error, since this prosecution was for a sale of liquor instead of unlawful possession thereof.

Section 2822, C. O. iS. 1921, provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Under the section above cited and the numerous decisions of this court, this judgment should not be reversed for the admission of such incompetent evidence, where no objection was made to the introduction of the same.

Defendant’s counsel in his brief admits that the record does not show he made any objection or saved any exception to the introduction of this evidence.

The conflict in the evidence was for the jury.

The errors complained of not being fundamental, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    BOB HALL v. STATE.
    No. A-7894.
    Opinion Filed May 23, 1931.
    (299 Pac. 508.)
    Paul D. Sullivan, for plaintiff; in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff: in error, hereinafter called defendant, was convicted in the district court of Stephens county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of six years.

Defendant complains of numerous errors, but to dispose of the case it will only be necessary to consider the tenth ground, which is: “For the reason that the trial court committed error in admitting incompetent, irrelevant and immaterial testimony offered and introduced on the part of the state, which was prejudicial to the rights of the plaintiff in error and which was excepted to by the plaintiff in error at the time.”

On cross-examination of the defendant, he was ashed:

“Q. Did yon ever tell him (Olande Bernard) that you had shot anybody, or shot at anybody? A. No, sir, I certainly did not.
“Q. Did you tell him that you got behind a tree and shot some fellows out in a boat on the water? A. No, sir.
“Q. Did you ever tell Levi Stewart that you had shot a man? A. I never told Levi Stewart anything that I did not want everybody in the world to know.
“Q. Do you know L. C. Smith? A. Yes, sir.
“Q. Did you ever tell him that you had killed some fellow while you was on the scout? A. No, sir, the only conversation that I remember ever having with Smith he said a fellow had him under a peace bond and he went to him and was trying to keep down trouble.
“Q. Did you tell him that you had killed a fellow? A. No, sir, I did not.
“Mr. Sullivan: Objected to as incompetent, irrelevant and immaterial, not tending to prove or disprove any issue in this case, and has no bearing upon the merits or demerits of the case in any way, shape, form or fashion.
“The Court: Overruled.”

Thereafter the state called L. C. Smith as a rebuttal witness, and the following proceedings were had:

“Q. Do you know Bob Hall? A. Yes, sir.
“Q. I will ask you if you had a conversation with him at the time you had some trouble with the fellow here in which he told you that he had shot and killed a fellow; just answer that question, yes or no?
“Mr. Sullivan: Objected to as incompetent, irrelevant and immaterial, don’t tend to prove or disprove any issue in tbe case on trial, not proper rebuttal.
“Tbe Court: It would probably be admissible on tbe theory of impeachment, or in testing tbe credibility of tbe witness. Overruled.
“Mr. Sullivan: Note our exception.
“Q. (By Mr. Sitton) Did be? A. Yes.”

Thereupon the state called Levi Stewart as a rebuttal witness, who testified as follows:

“Q. Do you know Bob Hall, tbe defendant in this case? A. Yes, sir.
“Q. I will ask you if you bad a conversation with Mr. Hall in which be stated to you that he bad shot a man? A. Yes, sir.
“Mr. Sullivan: Objected to as incompetent, irrelevant and immaterial, and I ask tbe court to admonish the jury to disregard it as improper rebuttal testimony; don’t tend to prove or disprove any issue in this case on trial.
“Tbe Court: Overruled.
“Mr. Sullivan: We except.
“Q. Did you ever know of bis threatening to shoot anybody up in that community? A. Yes, sir, be threatened to shoot me; called me a God damned pussy gutted bastard and says, ‘I will fill you plumb full of holes.’
“Q. I will ask you if he has come to you since this trial has been in progress and wanted you not to testify against him? A. Well, in a way he did, yes, sir.”

The state attempts to justify this so-called rebuttal evidence on the ground that in the cross-examination of the defendant the court permitted the same questions to be asked the defendant, all over the objections and exceptions of the defendant.

These questions were asked and numerous others of similar nature and over the defendant’s objection permitted to be answered. Defendant denied having made any such statements, and afterwards each of the parties referred' to was called to the. stand, and, over the defendant’s objections, permitted to be asked if the defendant so stated, and all answered in the affirmative. All of this testimony was irrelevant on the question of the guilt or innocence of the defendant of the particular offense charged, as no connection whatever is shown between the declarations of the defendant as testified to by these witnesses and the offense charged. It is elementary that a witness cannot be impeached upon collateral matters, and it is error to permit the defendant as a witness in his own behalf to be cross-examined as to any distinct collateral fact not brought out in the examination in chief, with a view of impeaching his testimony by introducing other witnesses to contradict him. Whether the matter inquired of on cross-examination of the defendant and proved by the state in attempting to impeach him was collateral to the issue or not must be determined by this query: Would the prosecuting attorney have been permitted to introduce it in evidence as a part of the state’s case? If he would not, it was collateral. If it was collateral, it was not competent to contradict it.

Wharton on Evidence, par. 559, states the rule:

“In order to avoid an interminable multiplication of issues, it is a settled rule of practice that, when a witness is cross-examined on a matter collateral to the issue,, he cannot, as to his answer, be subsequently contradicted by the party putting the question.” R. C. L. vol. 28, p. 613; Cyc. vol. 40, pp. 2769, 2773; Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201; Willis v. State, 13 Okla. Cr. 700, 167 Pac. 333.

A careful examination of the record discloses that the defendant did not have that fair and impartial trial to which he is entitled.

The other errors complained of by the defendant are not likely to occur again in a retrial of the case.

For the reasons stated, the cause is reversed and remanded, and the trial court directed to proceed with the case in accordance with this opinion.

EDWARDS J., concurs. DAVENPORT, P. J., absent. -


text:
    BROWNIE BAYNE v. STATE.
    No. A-7831.
    Opinion Filed May 23, 1931.
    (299 Pac. 510.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county of carrying a pistol, and was sentenced to pay a fine of $300 and to serve four months in the county jail.

The information is drawn under section 1998, Comp. Stat. 1921, which is:

“It shall be unlawful for any person in this state to carry or wear any deadly weapons or dangerous instrument whatsoever, openly or secretly, with the intent or for the avowed purpose of injuring his fellow man.”

It charges, in substance, that defendant at a named date did carry a pistol with the intent and for the avowed purpose of his injuring his fellow man, naming him. The court did not specifically instruct the jury as to the included and lesser offense defined by section 1992, Comp. Stat. 1921, of carrying a pistol concealed on or about the person, which section reads:

“It shall be unlawful for any person in the state of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided.”

The verdict of the jury, omitting the formal parts, is:

“We, the jury, duly impaneled and sworn to well and truly try the issues in the above entitled case, do upon our oaths find the defendant, Brownie Bayne, guilty of carrying a pistol as charged in the information and fix and assess his punishment at a fine of $300.00 and imprisonment in the county jail for a period of 4 months.”

The contention is made that the court should have instructed the jury on the lessers offense defined by section 1992, supra, the punishment for which is fixed by section 1996, Comp. Stat. 1921. The contention is further made that the verdict of the jury in fact finds defendant guilty of the lesser offense only, which they may do under the provisions of sections 2739 and 2740, Comp. Stat. 1921, which read:

“2739. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.
“2740. The jury may find the defendant guilty of any offense, tbe commission of wbicb is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

The verdict is ambiguous; we are unable to say that the jury did find defendant guilty of the offense defined by section 1998, supra. The wording of the verdict indicates they find defendant guilty of carrying a pistol only, and we so construe it. The judgment will be modified to the carrying of a pistol on or about the person defined by section 1992, supra, and the punishment fixed at a fine of |50. Barrett v. State, 39 Okla. Cr. 50, 263 Pac. 166; White v. State, 42 Okla. Cr. 50, 275 Pac. 1067.

As modified, the case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    H. D. BRADBURY et al. v. STATE.
    No. A-8048.
    Opinion Filed May 23, 1931.
    (299 Pac. 510.)

      James Mathers and Charles L. Roff, Jr., for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Oklahoma county of the crime of murder, and their punishment fixed by the jury at imprisonment in the state penitentiary, at hard labor, for the remainder of their natural lives.

The evidence of the state was that on the 22d day of March, 1930, the defendants robbed the Saunders grocery store at 1412 North Robinson; that at about 8:30 in the evening defendants entered the store and ordered the clerks and inmates to put up their hands; that J. D. Gates was an officer stationed at the store to watch it on Saturday nights; and that defendants began to fire their revolvers at Gates, and as a result thereof he was killed. At the beginning of the trial, the state and defendants stipulated that Gates was shot and killed at the time of the robbery. Witnesses for the state positively identified the defendants as the men who robbed the store and shot and killed Gates.

The defense was an alibi. The defendants did not take the witness stand.

Defendants contend, first, that the court erred in sustaining the state’s objection to defendants’ questions on cross-examination of Irene Casey.

The particular evidence complained of is:

“Q. Did you ever have occasion in your life to meet someone and be mistaken in the party you met? A. What do you mean?
“Q. Have you ever gone up and spoke to someone that you thought you knew and discovered that you were mistaken?
“Mr. Deupree: Oh, objected to as incompetent, irrelevant and immaterial.
“The Court: Sustained as immaterial.
“Mr. Mathers: Exception.”

The witness had positively identified the defendant Points as one of the parties shooting at Gates at the time he was killed.

The question in the case was, not whether the witness might have been mistaken as to the identity of some hypothetical person, but could she identify the defendant Points at the time of the trial.

Defendants next contend that the court erred in permitting testimony to be introduced by the state, over the objection of the defendants, that defendants were seen with pistols in their possession on the day following the homicide, and that, when they were arrested, some four or five days after the homicide, they had pistols in their possession at that time.

The witness Quinn, testifying for the state, said that Points had been his partner in the restaurant business; that he had seen Points and Bradbury at his cafe the Thursday evening before Gates was killed; that they went to Wewoka, and they called him over the telephone on Friday evening or Saturday morning; that at about 8:30 Sunday morning they came to the cafe, and Points put a gun in the refrigerator box; that he showed the defendants a newspaper giving an account of the Gates killing, and told Bradbury it was a pretty good description of him; that Points stayed in the cafe and Bradbury went to bed; that Sunday evening about 9:30 or 10 o’clock defendant Bradbury was up fooling with an automatic gun; that on Monday morning they took their clothes down town; that they had on the same hats they were wearing Sunday morning; that in the afternoon, when they returned to the cafe, Bradbury was wearing a cap and Points had changed from a cap to a hat.

Jack Boss, testifying for the state, said he arrested the defendants on the night of March 26th, and found one six shooter lying in front of the car on the floor, and a box of shells and other shells near the box. The witness identified two guns as found in the car and on the ground at the side of the car at the time he arrested the defendants.

The fact that defendants returned to the cafe shortly after the homicide was committed and left their guns, and the fact that the guns were taken away from the cafe by defendants and were later found in their possession when they were arrested, were circumstances to be considered by the jury, together with all the other facts in the case, in determining the guilt or innocence of the defendants.

In Yeager v. State, 43 Okla. Cr. 318, 278 Pac. 665, 666, this court said:

“Where a person is legally arrested for an offense, whatever is found upon his person or in his control, which may be used to prove the offense, may be seized and held for evidence in the prosecution.”

Defendants next contend that the court erred in not sustaining defendant’s motion to discharge the jury and declare a mistrial when the deputy sheriff in charge of the defendants brought them into the courtroom handcuffed together, in the presence of the jury. Defendants’ counsel argue:

“Even though the handcuffs were removed and the defendants allowed to sit with their attorneys, such action could not fail to impress upon the minds of the jurors that these defendants were hardened criminals. We can cite no case upon this point, but such action is directly opposed to the presumption of innocence that surrounds an accused until his guilt is proven by competent evidence beyond a reasonable doubt.”

In response to defendants’ objection to this procedure by the officers, the court said:

“Let the record show that the deputy sheriff in transporting the prisoners from the jail to the courtroom brought them through a side door into the courtroom and took the handcuffs off of them, when the prisoners were permitted to go to their seats behind their counsel without any handcuffs and unaccompanied by the officers, and give the defendants an exception.”

The authorities are divided upon the question of whether or not it is reversible error to bring a defendant into the courtroom manacled and even keep him manacled during the trial.

In Lee v. State, 51 Miss. 566, the .Supreme Court of that state held:

“Shackles may be kept on a prisoner during his trial if they are deemed necessary to prevent his escape.”

To the same effect is Matthews v. State, 77 Tenn. (9 Lea) 128, 42 Am. Rep. 667.

In Faire v. State, 58 Ala. 74, the Supreme Court of that state held:

“A defendant in a criminal case should be manacled or shackled during the trial only in an extreme case, but whether such a case exists or not is entirely within the discretion of the trial court.”

In State v. Duncan, 116 Mo. 288, 22 S. W. 699, the Supreme Court of that state said:

“The court may permit a dangerous and desperate man, charged with murder in the first degree, to be attended during the trial, and while testifying, by an armed guard.” ,

In Rainey v. State, 20 Tex. App. 445, that court held:

“It is not ground for a reversal that the sheriff brought the prisoner into the courtroom for trial in chains; the precaution apparently being necessary, and the chains having been removed by order of the court before the trial began.”

The defendants were charged with a capital offense. They were arrested under circumstances that indicated they were hardened criminals. It was the duty of the officers to prevent the escape of the prisoners during the trial. It does not appear from the record that anything more was done by the officers or the court than prudence required to restrain the defendants and protect the public.

The record discloses that the defendants had a fair trial, and the evidence supports the verdict of the jury.

For the reasons stated, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


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    FRED COPELAND v. STATE.
    No. A-
    Opinion Filed May 23, 1931.
    (299 Pac. 512.)
    Wilkinson & Wilkinson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of burglary in the second degree and his punishment fixed at two years’ imprisonment.

Defendant was charged jointly with Willard Parker and Ed Middleton with burglary of a smokehouse of one Gray. A severance was taken, and defendant was tried alone. There is no question but what the burglary was committed as charged and a quantity of meat stolen at the time. Some two weeks afterwards a part of this meat was found at the house of one Vaughan. Vaughan testified that on the Monday following the burglary on Saturday they were at Duncan. Defendant and Parker invited him and some members of his family to ride in their car to the Vaughan home, which they did. When they arrived there Parker stated they had some junk they had to store somewhere and wanted to know if he could leave it there. That night Parker and defendant brought the meat to the Vaughan home and put it in a box in the kitchen. On the following Friday Parker came and took some of it and stated at the time that defendant was outside. This meat was later found in the home of defendant. There are several other incriminating circumstances not necessary to state. The defense is alibi.

It is first alleged that the evidence is insufficient. As may be expected in cases of this kind, the evidence is circumstantial, but sufficient circumstances are proven from which a reasonable and logical inference of guilt arises and which excludes any reasonable hypothesis except that of the guilt of defendant. The evidence is conflicting, but the jury saw and heard the witnesses and were in a position to determine the credibility and the weight and value of the testimony. This court should not disturb the verdict as unsupported by or contrary to the evidence. Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436.

It is also argued that the court erred in admitting incompetent evidence. This assignment is directed to the testimony of the witness Vaughan, and particularly to his testimony that when Parker, the codefendant, came to the house of the witness and took some of the meat, he stated that defendant was outside. The objection to this testimony is that it was a statement of the coconspirator after the conspiracy had terminated. It is well settled that a declaration made by a coconspirator after the conspiracy has terminated and not in the presence of the accused is not admissible. It is also held that a conspiracy to commit a crime is not terminated until the fruits of the crime have been divided. Price v. State, 1 Okla. Cr. 359, 98 Pac. 447; Stockton v. State, 5 Okla. Cr. 310, 114 Pac. 626; Crawford v. State, 35 Okla. Cr. 135, 248 Pac. 880; Sanders v. State, 35 Okla. Cr. 139, 249 Pac. 356.

Upon a consideration of the whole case, it appears that defendant was fairly tried, the evidence reasonably sustains the judgment, and no prejudicial error is apparent.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


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    ED RADFORD v. STATE.
    No. A-7883.
    Opinion Filed May 23, 1931.
    (299 Pac. 514.)
    Cutlip & Cutlip, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county of the crime of unlawful possession of a still, and his punishment fixed by the jury at a fine of |50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that on the 24th day of March, 1930, they had a, search warrant to search the premises occupied 'by the defendant, and in the search found 150 gallons of mash in vats under the floor; also a gas or coal oil tank, an air tank and pump, some oil burners, a piece of a sack of shorts, about 300 pounds of sugar and two cartons of yeast; that in a small barn about 40 steps from the house they found a copper still which would hold about 150 gallons with a condenser and cooker, and that this still was the kind usually used in the distillation of intoxicating liquor; that defendant’s wife was at the place searched; that the defendant was not there, and the officers were unable to arrest him until about a month after the raid; that the officers had a warrant for his arrest, and saw him one time about a week before he was arrested.

Defendant, testifying for himself, admitted that he had rented the place a few days previously, for cash rent, and did not expect to farm the place; he explained his absence by saying that he went down to his farm in Atoka, county, and denied that he knew that the tanks or mash was under the floor; denied that he looked into the side room of the house where he moved; denied that he knew there was any shorts or sugar or yeast there; and denied that he had been to the barn or looked into the barn or knew there was any still concealed therein.

Defendant complains of numerous rulings of the trial court, but, when considered together, they all raise but one question; the sufficiency of the evidence.

Where there is any competent evidence in the record to support the verdict of the jury, this court never reverses a case on the ground that the evidence is insufficient.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    PAT REAGOR v. STATE.
    No. A-7706.
    Opinion Filed May 23, 1931.
    (299 Pac. 516.)
    John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Pat Reagor, hereinafter referred to as defendant, was convicted in the district court of Pottawatomie county of the crime of illegal possession of narcotics, and his punishment fixed by the jury at imprisonment in the state penitentiary for one year and one day.

The defendant is a Negro, and at the time of the commission of the offense was living in the city of Shawnee, at 825 South Bell street. On the 29th day of July, 1929, the chief of police of the city of Shawnee, accompanied by a policeman named Budd and a deupty sheriff named Diester, having a search warrant, went to the premises of the defendant and made a search thereof. At the time of the search the house of defendant was being remodeled, and there was a tent in the yard, on the north side of the house, containing a cot, some clothing, three hand bags, and other household furniture. The morphine was found in one of the hand bags in the tent.

The officers testified that the defendant said he was sleeping in the tent, and that the hand bag in which the morphine was found belonged to him. When the officers found the hand bag it was locked, and the defendant furnished them with a key with, which they unlocked it. Three capsules containing morphine were found and a number of empty capsules. These were turned over to the sergeant at the police station and locked in the vault until they were analyzed on the 2d day of October following. The chemist analyzing the same testified that the capsules contained morphine. There was also found in the hand bag in the tent some hypodermic needles used in connection with the administration of narcotics.

The defendant, testifying in his own behalf, admitted that he was present when the search was made of the tent, and that he furnished the officers some keys, one of which fit the hand bag, but defendant claimed that the hand bag from which the officers took the narcotics was not his, but belonged to one Tom Stevens, who was at that time working on the house.

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

Defendant contends that the state failed to identify the morphine which was analyzed as the stuff taken from the hand bag on the premises of the defendant. The state’s witnesses testified to the discovery of these capsules in the hand bag in the tent located on defendant’s premises, and that they were placed in a box and given to the sergeant of the police station and there kept in a vault until the same were analyzed in October. The police officer testified that the box he gave the chemist was the same box that he placed in the vault of the police station; that it appeared to be in the same condition; and that the empty capsules and the capsules containing morphine appeared to be the same. The chemist testified to the reception of the box— describing it — and as to the number of capsules containing morphine, and that the analysis made by him was made of the same contents of the same capsules that the police officer turned over to him. The box was labeled as having been taken from the defendant’s premises at the time it was put in the vault at the police station.

This evidence uncontradicted was sufficient to authorize the jury to find that the analysis made by the chemist was made of the same material as that taken from the premises of the defendant on July 29, 1929.

This court has repeatedly held that it will not disturb a verdict of a jury solely on the ground of insufficient evidence, where there is a basis in the evidence from which the jury could logically conclude that the defendant was guilty.

Defendant next contends that the conviction should be reversed because of error on the part of the trial court in wrongfully restricting the cross-examination of certain state’s witnesses.

Counsel for defendant called the court’s attention to two places in the record which he contends support this alleged ground for reversal, which read as follows:

“Q. Did he tell you that they left their hand hags there? Part of the hand hags were theirs and part his?”

This was objected to by the state as a self-serving declaration and the objection sustained by the court. Prior to this question and objection the witness was asked the following question:

“Q. Did he tell you that he had five or six or eight or nine men working there on the building for him, and that they slept in that tent? A. No. He said he had men working there, but he did not say they slept in the tent.” Following the objected question the witness was asked: “Q. What did he say as to who owned all the hand 'bags? A. He said those two were his I asked him about.”

The court did not err in sustaining the objection to the question complained of.

Under this assignment defendant also contends that the court erred in not permitting counsel on cross-examination to ask the witness whether other men than the defendant were on the premises.

Defendant’s counsel made no offer of proof of the matters complained of, after the court sustained the state’s objection.

This court cannot determine from the record that the defendant was prejudiced by the court’s refusal to permit the witness to answer the questions propounded.

This court will not seek error, but the same must affirmatively appear upon the record. Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423; Welch v. State, 35 Okla. Cr. 17, 247 Pac. 426.

Defendant next contends that the trial court erred in wrongfully excluding certain alleged competent evidence offered by the defendant.

The following proceedings appear from the record:

“Q. (By Mr. Levergood) Millie, I will ask you, after you went to the police station and came back to the house, did you see any person at the house, asking about any hand bags, or anything?”

This question was objected to as incompetent, irrelevant, and immaterial, and sustained by the court.

“Q. (By Mr. Levergood) Who did you see down at the house?”

This was objected to as immaterial, and sustained, and thereupon the following proceedings were had at the bench and out of the hearing of the jury:

“Mr. Levergood: Comes now the defendant and offers to prove by this witness, if permitted to answer, the following: That she came back to the house, after being at the police station, and saw a man by the name of Tom Stevens, who inquired where his hand bag was, and that the witness informed Tom Stevens that the law had been there and taken his grip.”

The state objected to this, and the objection was sustained.

“Q. (By Mr. Levergood) After this raid, did you see a person down there by the name of Tom Stevens?”

This was objected to by the state as incompetent, irrelevant, and immaterial, and the objection was sustained.

The substance of the offer is to prove what Stevens said, which was hearsay and therefore inadmissible.

The other errors complained, of by the defendant being equally without substantial merit, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


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    MARY E. KING v. STATE.
    No. A-7858.
    Opinion Filed May 16, 1931.
    Rehearing Denied May 23, 1931.
    (299 Pac. 231.)
    Brownlee & Blaine, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Kingfisher county of the crime of unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the- state was that the defendant was operating a grocery store in the town of Kingfisher; also a soft drink stand and lunch counter, had tables in another room where she served meals, and had rooms over the store where she kept roomers; that the officers had a search warrant to search the buildings and premises located on lots 9, 10, 11, and 14, block 73, in Kingfisher; that they found a gallon of wine and a number of empty bottles in the store building; that on one of the lots they found three bottles of beer, and in the house they found a 10-gallon stone brew jar with some brew in it; that there were pitchers, dippers, and cups sitting on a table; that defendant had a key to the dwelling house, but it was not occupied; that the state had the liquor analyzed and the wine contained 3.25 per cent, and the beer 3.6 per cent, alcohol.

Defendant, testifying for herself, admitted that the jug of wine was in the kitchen, but claimed her husband had brought it there in 1927 and left it, and that she was divorced from her husband and did not know what the jug had in it. She also claimed that a part of the house back of the store was occupied by Austin Jackson, and that she had furniture stored in a part of the house.

Defendant contends first that the search was illegal because the warrant was not served within the three days required by law.

The copy of the warrant attached to plaintiff in error’s motion to suppress the evidence shows that it was issued on the 25th day of July, 1929, and the return of the sheriff shows that it was served on the 27th day of July, 1929, which brings such service within the three days required by law. The affidavit and warrant being sufficient to authorize the search, the evidence obtained thereby was admissible.

Defendant also contends that the proof of the state failed for the reason that the physician who made the analysis of the wine and beer failed to testify that such liquid was suitable for use as a beverage.

This court takes judicial notice that wine is intoxicating.

The defendant is in no position to complain, since the state went beyond the requirements of the law to establish by proof, not only that it was wine, but that it contained more than one-half of 1 per cent, of alcohol measured by volume.

The other errors complained of by defendant being equally without substantial merit, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


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    ALONZO SMITH v. STATE.
    No. A-7795.
    Opinion Filed May 29, 1931.
    (299 Pac. 1086.)
    S. M. Cunningham and Luster Cook, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

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

Judgment was entered in October, 1929, and the appeal was lodged in this court in April, 1930. No briefs in support of the appeal have been filed, and no1 appear-anee for oral argument was made at tbe time the case was submitted. The evidence fully sustains the judgment, and an examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.