text:
    C. J. HARRIS v. STATE.
    No. A-5953.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 700.)
    C. F. Gowdy, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, hereinafter referred to as defendant, was charged in the county court of Nowata county with the crime of unlawful possession of ' intoxicating liquor, and upon trial was convicted and sentenced to serve 30 days in jail and to pay a fine of $50 and costs. Motion for new trial filed and overruled, and exceptions saved. From the judgment and sentence, the defendant has appealed to this court.

The defendant has assigned several errors; first, second, and third assignment of errors being as follows:

“(1) The verdict is contrary to law.
“(2) The verdict is contrary to the law and evidence.
“(3) The court erred in overruling plaintiff in error’s demurrer to the state’s evidence, and in refusing to instruct the jury to return a verdict of not guilty.”

These three assignments may be considered under one head, as each relate to the sufficiency of the evidence to sustain a conviction. There is no positive testimony in this case that the defendant ever had actual or constructive possession of the whisky alleged to have been found. The testimony of the state is purely circumstantial. The defendant had not been seen in or near the building where the whisky was found for several days. Neither of the state’s witnesses claim to have seen the defendant anywhere near the little building in which they claim to have found the whisky.

Defendant’s testimony is positive that he did not own the whisky, knew nothing about it being where it was alleged to have been found, and did not have possession of the building at the time it was alleged the whisky was found; that he had been working in a different part of town, and ha*d been for several days prior to the alleged raid.

This court, in Harrell v. State, 33 Okla. Cr. 364, 244 P. 457, in passing upon a similar question to the one in this record, makes the following statement:

“In a prosecution for unlawful possession of intoxicating liquors, where no positive testimony tending to show such possession was offered, and the only evidence offered to show possession was purely circumstantial, and did not show actual or constructive possession; * * * held, evidence insufficient to sustain conviction.”

This court has repeatedly held that it would not disturb the verdict of a jury where there was any competent evidence to support the finding of the jury, and even though the evidence was conflicting. Where the evidence is purely circumstantial, as in this case, the facts proven must be such as to exclude every reasonable hypothesis other than the guilt of the defendant of the offense charged in order to sustain the conviction. The evidence in this case does not meet this requirement. We hold that it would have been the proper exercise of the power vested in the trial court to have advised an acquittal of the defendant, on the ground that the evidence was insufficient to connect him with the offense charged. The demurrer of the defendant to the evidence of the state was well taken, and should have been sustained.

The defendant, in his fourth assignment of error, complained of the action of the trial court in permitting the county attorney to call in question the character of the defendant, where the defendant had not put his character in issue. On page 16, case-made we find where a Mr. Pace, a witness for the state, was asked by the county attorney if he knew the defendant in South Coffeyville “on or about the time you whs called up there,” and then, “Do you know his reputation at that time as running a place where one could procure liquor?” The defendant objected to the question, and his objection was overruled by the court, and the witness answered, “No, sir. I did not know only what I heard.” “Well, his reputation, that is what I am asking for.” Again the defendant objected and was overruled by the court. The witness answered, “I had just heard he was running a place up there.”

It has been repeatedly held by this court that the character or reputation of the accused cannot be put in issue by offering testimony as to his bad character, unless the defendant first offers evidence as to his good character, then the prosecution may rebut it by evidence of bad character. If the law permitted the introduction of evidence as to the other crimes committed by the defendant, other than the one for which he is on trial, or would permit the state to offer testimony of his general bad character as original evidence against him, it would result in a confusion of the issues before the jury.

No one will contend that the bad character of the defendant is original evidence against him when he is put upon trial for any violation of the penal laws. We think the rule is universal that the state cannot prove the bad character of the accused until he has put his good character in issue.

The objection of the defendant should have been sustained, and the action of the court in permitting the witness to answer was unfair to the defendant and prejudicial to his rights.

There are other errors assigned and argued by the defendant, but in the view we take of the record we do not' deem it necessary to consider them.

For the reasons hereinabove stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    GEORGE BAYOUTH v. STATE.
    No. A-5927.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 702.)
    E. C. Patton, Jos. A. Ramsdale, and Joe Adwon, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff1 in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of driving a car while intoxicated, and was sentenced to serve a term of 6 months in the State Penitentiary and to pay a fine of $500.

The first assignment of. error argued is that the court erred in overruling defendant’s application for a continuance. The application for a continuance alleges that Martin Carriker, who resides in Oklahoma City, is a material witness for defendant; that defendant has had a subpoena issued ordering his attendance; and that his attendance can be had in a reasonable time. It is alleged that the witness Carriker was with defendant prior to his arrest and would testify that the defendant was not intoxicated, nor under the influence of liquor, nor drinking. The affidavit is wholly lacking in a showing of negligence to procure the witness. A copy of the subpoena is not attached, nor does it appear when it was issued, nor that it bore an order of the judge thereon requiring the attendance of the witness. An application for continuance on account of the absence of a witness must show diligence has been used to procure the witness or his testimony. When this is not made to appear, it is not error to overrule such application. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Williams v. State, 17 Okla. Cr. 375, 188 P. 890; Hill v. State, 19 Okla. Cr. 406, 200 P. 253; Hunt v. State, 38 Okla. Cr. 294, 260 P. 512.

The only other assignment of error argued in the brief is that the evidence is insufficient to sustain the judgment. One of the arresting officers, O. B. Buchner, testified:

“* * * Q. What was his condition? * * * A. Well, I called him drunk.
“Q. Did he stagger? A. Yes, sir. * * *”
On cross-examination, he further testified:
“Q. What is intoxication, please? * * * A. That is when a man has too much booze in him and staggers when he walks and falls when he gets out of a car.
“Q. Do you mean to say that this man fell when he got out of the car? A. Yes, sir.
“Q. Was that after you hit him? A. No, sir.
“Q. Before you hit him? A. Yes. * * *”
The witness R. L. Wiley testified:
“Q. [Referring to defendant.] Did you observe his condition at that time as to whether he was intoxicated or sober? A. Yes, sir.
“Q. What was his condition, Mr. Wiley? A. He was drunk.”

On cross-examination he said:

“Q. You say that defendant was drunk? A. Yes.
“Q. And what did he do? A. Well he was staggering around there, cursing and blackguarding, and kept it up.
“Q. But you are positive he was drunk? A. Yes, sir; I am positive of that.”

It is true that defendant denied that he was intoxicated and testified that he was assaulted by the officers without provocation. This presents a question of fact for the jury. They heard the evidence and saw the witnesses, and it was their province to determine whom they would believe. The judgment cannot be disturbed for insufficiency of the evidence.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.

text:
    L. T. McATEE v. STATE.
    No. A-5948.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 703.)

      Geo. L. Zink and Clayton Carder, for appellant.
    J. T. McIntosh, for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction and sentence of confinement in the penitentiary for a term of five years, rendered upon a plea of guilty, entered by appellant, L. T. McAtee, to an information charging a violation of section 1, ch. 137, Session Laws 1923, which section reads:

“It shall be unlawful for any acting managing officer of any bank organized or existing under the laws of Oklahoma to borrow, directly or indirectly, money from the bank with which he is connected; and the officer making or authorizing a loan to any person, as well as the person receiving the same, shall be deemed guilty of the larceny of the amount borrowed and shall be punished by imprisonment in the penitentiary for not less than five (5) years nor more than fifteen (15) years.” Section 4127, Supp. 1926.

The information charges, in substance, that on June 9, 1923, L. T. McAtee did feloniously borrow from the Bank of Mountain View, on his personal note, the sum of $550, the said L. T. McAtee being then and there the president, director, and the active managing officer of said bank.

The record shows that on May 12, 1924, appellant' appearing in person and by James R. Tolbert, his attorney, upon arraignment entered a plea of not guilty with the understanding that a demurrer to the information was thereafter to be filed and considered. Thereafter the cause was assigned for trial on May 15, 1925. On said date appellant appearing in person and by Tolbert, Hunter & Tolbert, and W. C. Stevens, his attorneys, the state appearing by C. G. Bass, county attorney of Kiowa county, and by J. T. McIntosh, attorney for the state banking board, asked leave to withdraw his plea of guilty for the purpose of considering the demurrer filed as aforesaid. The court permitted the withdrawal of the plea of not guilty, and after the presentment and argument on the demurrer the court overruled the same and also directed the clerk to enter the former plea of not guilty. Counsel for appellant asked time to confer and later announced to the court that it had been agreed that appellant enter a plea of guilty, and moved to withdraw the plea of not guilty and enter a plea, of guilty, which motion was granted. The court then fixed the 15th day of June, 1925, as the time for pronouncing judgment and sentence upon the plea of guilty entered as aforesaid. On June 6, 1925, appellant filed his application to be permitted to withdraw his plea of guilty and substitute a plea of not guilty, which application duly verified is as follows:

“Comes now the defendant, L. T. McAtee, in. his own proper person, and asks that he be permitted by this court to withdraw his plea of ‘guilty’ of the charge preferred by information in the above-entitled cause, and be allowed to substitute a plea of ‘not guilty’ to such charge.
“The defendant, L. T. McAtee, gives the court to be informed that the defendant is charged in the above-entitled cause with a felony, the offense of grand larceny, by borrowing money of the Bank of Mountain View, of Mountain View, Okla., while an officer and director of said bank; that said plea of guilty to the information in the above-entitled cause was entered* on the 15th day of May, 1925, at which time the court deferred the passing of sentence upon such plea of guilty, until the 15th day of June, 1925, at which time the court advised would be the date for the entering of the judgment and sentence under said plea of guilty in the above-entitled cause; and the defendant gives the court to be informed that such plea of guilty was entered under the following circumstances:
“That the defendant at the time was represented by James R. Tolbert, of Hobart, Okla., and W. C. Stevens, of Lawton, Okla., as his attorneys, and that the state of Oklahoma was represented by J. T. McIntosh, attorney for the banking department of the state of Oklahoma, and C. G. Bass, county attorney of Kiowa county, Okla.
“That there was a consultation between counsel on both sides of the case, which was held in the office of the county attorney, and that thereafter the defendant was called into the same room, and there the defendant’s counsel advised the defendant that he had no defense in the above-entitled cause, and that they were not in a position to go into the courtroom and fight the case and would not do so, and that the counsel of the defendant there advised the defendant to plead guilty under an arrangement that they had made with counsel for the state of Oklahoma, that a minimum sentence of five years would be recommended, and all other cases against the defendant, three in number, then pending in the' district court of Kiowa county, Okla., would be dismissed, and that a pardon could be secured for the defendant, and that if the defendant went into the trial of the cases against him, that he would get ten years for each case, and that the defendant was influenced solely and wholly by his counsel in the matter of the entering of said plea of guilty; and these facts the defendant is ready to prove, if granted leave for the purpose.
“That at the time the defendant came to Hobart, he came with the expectation of going into trial, and with no expectation of entering a plea of guilty, and that the defendant believes he had a good defense in the above-entitled cause, and one for which he should be accorded the right of a trial by jury, and that to this end he should be permitted, before the entering of judgment and sentence, to withdraw his plea of guilty, and substitute therefor a plea of not guilty.”

. On June 15th, the date fixed by the court for sentence, appellant appeared in person and with new counsel, George L. Zink and Clayton Carder, and presented to- the court his application to be permitted to withdraw his plea of guilty and substitute therefor a plea of not guilty. The court thereupon heard the testimony of appellant, and his former attorneys, and having heard argument of counsel overruled said application and allowed exception. On the same day appellant filed his motion for a new trial, which was heard and considered by the court and by the court overruled. The court then proceeded to pronounce judgment and sentence upon the plea of guilty as aforesaid.

The errors assigned and argued present but one question, that is, whether the court erred in denying appellant’s application for leave to withdraw his plea of guilty and to enter a plea of not guilty.

Our Code of Criminal Procedure provides:

“The court may, at any time, before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” Section 2621, C. S. 1921.

It is a well-settled doctrine in this state that the granting or denying of permission to withdraw a plea of guilty, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court, and its action must be upheld unless an abuse of such discretion clearly appears. Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761.

We shall not undertake to detail the testimony taken in support of the application. It is shown by the testimony that after the conference of appellant with his attorneys, they sounded out counsel for the state as to what would be recommended in the event of a plea of guilty, and after discussing the matter at some length counsel for the state proposed that in the event appellant entered a plea of guilty the state would recommend the minimum sentence of five years in one case arid dismiss the other three cases pending against appellant, when he was delivered to the warden of the state penitentiary.

Appellant and his counsel finally agreed that he would plead guilty and take five years in the penitentiary without recommendation of any kind as to any pardon or parole.

It will be observed that appellant in his application for permission to withdraw his plea of guilty nowhere alleges any state of facts that would show a defense. All he says in regard to the same is that he “believes he has a good defense.” If appellant was not the active managing officer of the bank, and if he had not borrowed the money from the bank, those facts would have been set up in the application. If he had any defense his counsel no doubt would have shown the same to support his plea that he had been misled by his former counsel and by counsel for the state.

It appears from the record that the preliminary complaint was filed on January 7, 192i4, before the judge of the county court, and on the following day the action was continued for the reason that “James R. Tolbert, chief counsel for said defendant, L. T. McAtee, is serving as a member of the Legislature,” and that on April 21, 1924, appellant and his counsel, Judge Tolbert, appeared before the committing magistrate and waived his preliminary examination. It appears also from the record that on May 15, 1925, when the plea of guilty was entered, there was a jury present to try the case, and on June 15, 1925, the date of sentence, there was no'jury present. It follows that if appellant by discharging his former counsel could withdraw his plea of guilty, he could force a continuance until the next jury term of the court.

When it is considered that appellant and his counsel fully considered the proposition as made by counsel for the state, and that the recommendations of the state were accepted by the court, it cannot be doubted that appellant’s plea was entered voluntarily, with full knowledge and understanding of the nature and consequences of such plea.

No legal questions are presented by the record. In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law.

This court, in Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298, said:

“The provisions of the Bill of Rights in no way abrogate the ancient and well-established rule of the common law, and the provisions of our statute, that a conviction may be had upon a plea of guilty, which under the law can-in no>case be put in except by the defendant himself in open court. The defendant had a constitutional right of trial by jury, or, the state consenting, a trial by the court. He was not deprived of this right, but voluntarily relinquished it by entering a plea of guilty. The right of trial by jury is purely a personal right and privilege that may be waived by the defendant?’

In conclusion, we simply add that the most careful examination of the record has revealed nothing that gives us the right to say that the interests of justice require a reversal of the conviction.

The judgment appealed from herein is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN LINDER et al. v. STATE.
    No. A-5956.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 706.)

      Hugh M. Bland, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Cherokee county on a charge of setting up a still and were each sentence to pay a fine of $500 and to serve six months in the county jail.

The record discloses that at the time charged an officer found defendants on premises held by defendant Linder under lease. They had a quantity of mash and were apparently preparing a foundation on which to set a boiler. Near them was a boiler, and not far from that was a piece of lead pipe. The charging part of the information is as follows:

“* * * That they, the said John Linder and Anderson Reynolds, then and there being and acting together and in concert with each other, did then and there willfully and unlawfully, set up to be used as a distillery a certain still worm and a substitute therefor, to wit, a certain copper tank and a copper cap and lead pipe which was capable of being used and which was being set up for the purpose of manufacturing whisky. * * *”

Prior to this charge defendants were each charged with some other violation of the prohibitory law growing out of this transaction, and on such charge were convicted and each sentenced to pay a fine of $250 and to serve 30 days in the county jail. A plea of former jeopardy in writing was filed to the charge in this case and some oral evidence upon it brought out on cross-examination, but the record was not introduced and the plea was not submitted to the jury and appears to have been abandoned.

The sole contention made here is that the evidence is insufficient to sustain the judgment, that there is no proof of the setting up of a still.

Section 2 of chapter 42 of the Session Laws 1923-24 is as follows:

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

This section defines several different offenses but the information charges only the offense that defendants “set up to be used as a distillery, a still. * * *” Other parts of the section, as it will be seen, make it an offense to have the possession of a still or parts of a still. Evidently the lawmakers intended to cover all the conditions and contingencies which might arise from the possession, the use, or the preparing to use, or the setting up to use a still or its parts. We find no appropriate definition of the term “set up” as applicable to the language used in section 2. An examination of this section discloses clearly that it means more than a mere possession of a still or its parts, since another part of the section makes possession an offense. The term obviously means the placing a still in position to operate and the connecting of its parts so that it may be used.

The only evidence upon this point is the testimony of Tom Dulen as follows:

“* * * Q. How close were you to them when they first noticed you? A. Somewhere between 40 and 50 yards.
“Q. Where was the still or boiler with reference to the rocks? A. Sitting down close to them.
“Q. How close? A. Between 15 and 20 feet.
“Q. Where was the pipe you found? The lead pipe? A. Not far from the other outfit.
“Q. Isn’t it a fact you took that lead pipe out of a tree somewhere? A. I don’t recall where I got the piece of hose.
“Q. The still itself was in separate parts and scattered around the place? A. Yes, sir.
“Q. Where is the worm. A. I did not get any worm.
“Q. All you found was the boiler? A. Yes, sir; and lead pipe. * * *”

There is evidence that defendants had possession of a still or parts of a still, but there is no evidence that defendant “set up” a still as charged in the information.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    JOHN NOBLE v. STATE.
    No. A-5929.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 707.)

      J. Coody Johnson and A. M. Fowler, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, John Noble, was tried upon an information charging, in substance, that in Seminole county, on the 12th day of October, 1924, he did then and there unlawfully, feloniously, and with a premeditated design to effect death, shot one Amos Warrior with a pistol, .thereby inflicting a mortal wound, from the effects of which the said Amos Warrior did then and there instantly die. On the trial the jury returned a verdict finding him guilty of manslaughter in the first degree, and fixing his punishment at confinement in the penitentiary for a term of 15 years. Motion 'for new trial was duly filed and overruled, and on May 28, 1925, the court pronounced judgment in pursuance of the verdict. He has appealed from the judgment, but there has been no appearance made in his behalf in this court. An examination of the record discloses that no exceptions were taken during the course of the trial. On the record before us the only question presented is whether the evidence was sufficient to sustain the verdict.

It appears that all the parties to the homicide were Indians. At the time charged there was a picnic at Bob Bowleg’s place, about two miles east of Seminole. About three o’clock in the morning an altercation arose at the dancing platform. It appears that the deceased, somewhat intoxicated, attempted to lead his horse upon the dancing platform, and appellant objected. The deceased started to leavei and appellant pulled a pistol and shot him. The bullet entered the back of his head, killing him instantly.

As a witness in his own behalf, appellant testified that he was sitting on the side of the platform talking to Amo? Warrior, whose horse was tied near by; that Warrior ur* tied his horse and started to lead the horse on to the danc ing platform, and at the same time was carrying a shotgun in his hand; that Warrior was cursing everybody, and saying that he was going to run them all away from there, and said he was going to kill somebody before he left there.

Appellant further testified as follows:

“I says, T would not do that if I was you, Amos,’ and he says: ‘God damn you, I will kill you.’ After he said that I got up and run up on the platform, then I walked ofi the platform, and he threw his gun down, and said, T have grandfather’s old shotgun and two God damn pistols,’ and he made his right hand down here (indicating), .and started towards me, cursing me, and I shot him. He was coming facing me, had the reins in his hand, coming right towards me. The first shot I missed him; the second' shot I hit him. The horse snatched back.”

It was the peculiar province of the jury to pass'upon the credibility of the witnesses, and, the jury, as the triers of disputed questions of fact, having determined the controversy, we cannot disturb the verdict of the jury where there is any substantial evidence to support it.

Accordingly the judgment should be and is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WILLIAM MENEFEE v. STATE.
    No. A-6253.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 709.)
    Mauntel & Spellman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woods county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The information charges that defendant had the possession of whisky with the unlawful intent to sell, barter, give away, and otherwise furnish. The record discloses that at the time charged a dance was given at John Whitney’s dance hall in the south part of Woods county. On December 25, certain officers went to the place, and the manager gave them permission to search. They searched the hall and also searched the overcoats of the guests. The overcoat of defendant was hanging on the wall, in the pocket of which they found a pint bottle containing some whisky, a flash light, and a bunch of keys. Consent to search by the proprietor did not give permission to search the private belongings of the guests. Turknett v. State, 36 Okla. Cr. 401, 254 P. 985.

A pint of whisky is not sufficient to bring the possession within the statute making quantity prima facie evidence of intent to violate the prohibitory law (section 6999, Comp. St. 1921, as amended by chapter 123 of the Session Laws 1923-24). There is a total failure of proof by circumstances or otherwise of any intent of defendant to sell, barter, give away, or otherwise furnish the small quantity of liquor found in the overcoat pocket.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    JAKE WINTERS v. STATE.
    No. A-5958.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 709.)
    Perry J. Morris, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information charged that on October 9, 1924, one Jake Winters did sell to B. E. Slagle, one pint of whisky. On the trial the jury returned a verdict finding him guilty and leaving the punishment to be fixed by the" court. Motion for new trial was duly filed and overruled. From the judgment rendered on the verdict, he appeals.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and rulings of the court in admitting incompetent and hearsay evidence over defendant’s objections.

This is a companion case to that of Luck v. State, 38 Okla. Cr. 322, 260 P. 1118.

Aside from the testimony of B. E. Slagle, the prosecuting witness, there is no evidence tending to show the commission of the offense. He testified:

That he went into Winter’s real estate office in Shat-tuck and told him that his name was Smith, and that he was an insurance man, and Winters and George Luck produced some liquor. That he went in there a day or two later and Mr. Winters sold him a pint of whisky in a beer bottle, and that he labeled it:

“Bought from Mr. Winters, one pint of liquor. Delivered to me at his office, at his place of business, on the main street of Shattuck, and paid him two dollars.”

That he delivered this bottle to Jay Frank, city marshal.

Jay Frank testified that Slagle turned a bottle with that label on it over to him; that he turned this bottle over to Frank Hecox, undersheriff.

The testimony of Frank Hecox shows that he received the bottle and turned it over to Sheriff Thomas, but did not know what became of it. He produced a copy of the indorsement on the bottle, which was read to the jury.

Sheriff Thomas testified that he received the bottle and placed it in the safe in his office; that his deputy had the combination; that he himself did not know the combination of the safe.

R. E. Devenney, deputy sheriff, testified that he was present when the bottle was placed in the safe with the label thereon, signed “B. E. Slagle”; that before the trial he opened the safe and looked for the bottle, but could not find it.

The testimony tending to show the written statement of B. E. Slagle, as indorsed on the bottle in question, was clearly inadmissible.

For the reasons stated in the case of State v. Luck, supra, we are of opinion that the evidence in this case is insufficient to sustain a conviction.

The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    HENRY PARKER v. STATE.
    No. A-6029.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 1075.)
    Robertson & Ammons, for plaintiff in error. ■
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information with the crime of selling intoxicating liquors, the charging part of the information being:

“That in McIntosh county, in the state of Oklahoma, Henry Parker, alias Jew Henry, did on or about the 6th day of June, 1925, and anterior to the filing of the information, commit the crime of violation of the prohibitory laws of the state of Oklahoma, in the manner and form as follows, to wit: That Henry Parker, alias Jew Henry, on the day and year aforesaid, in the county and state aforesaid, did willfully, wrongfully, and knowingly, barter, sell, and furnish to one H. H. Belcher certain spirituous, vinous liquor, ferment liquor, and intoxicating liquor, to wit, one gallon of Choctaw beer.”

To this information the defendant filed a demurrer, as follows:

“Now comes the defendant and demurs to the information filed herein, for the reason that the said information fails to charge the defendant with any crime under the statutes of the staté.”

A jury was impaneled, and, after hearing the evidence and instructions of the court, returned a verdict of guilty, fixing the punishment of the defendant at a fine of $150, and imprisonment in the county jail for 60 days. Motion for a new trial was overruled, and exceptions duly saved. To reverse the judgment and sentence the defendant has appealed to this court, and has assigned three errors alleged to have been committed by the court in the trial of his case.

The first assignment of errors alleged to have been committed by the court upon which the defendant relies for a reversal is as follows:

“(1) The court erred in not sustaining the demurrer of plaintiff in error to the information.”

The defendant in his argument insists that the information is not sufficient to charge a violation of the prohibitory laws of the state, and, in order to properly determine the question as to whether or not the demurrer is well taken, it is deemed necessary to set out the provision of the statute upon which this information is based: That part of section 7002 of the Compiled Statutes of Oklahoma 1921, which we deem necessary to quote, is as follows:

“It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume.”

The charge in the information is the selling of intoxicating liquor, to wit, Choctaw beer. The question then to be determined on the demurrer to the information is, Under what statute is the information drawn? Choctaw beer is not a spirituous, vinous, fermented or malt liquor, within the language of the statute quoted.

The next question then is, Does it come under the provision : “Or any imitation thereof or substitute therefor” for spirituous, vinous, fermented or malt liquors, or does it come under the provision of the statute, prohibiting the selling, bartering, giving away or otherwise furnishing any liquor or compound of any kind or description whatsoever, whether medicated or not, which contains as much as one-half of one per cent, of alcohol, measured by volume, and capable of being used as a beverage?

This court had the question before it in the case of Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052, in which the court said:

“The Attorney General contends, however, that the court should take judicial notice that Choctaw beer is an intoxicating liquor, and that this, in addition to the evidence that the same was being manufactured on said premises, is sufficient to sustain the conviction under the statutory provisions. Possibly the conviction could stand, and the evidence be held sufficient if the court could take judicial notice that Choctaw beer is an intoxicating liquor, or that it contains more than one-half of 1 per centum of alcohol, measured by volume. Beverages, such as lager beer, which are made by some standard formula, and generally offered for sale, are judicially known to be intoxicating; but a beverage, such as Choctaw beer, not generally offered for sale in this jurisdiction, and having no fixed standard by which it is made, and having not become so well known as to have a general reputation as to its intoxicating character, cannot be judicially known to be intoxicating by the courts, and as to such a liquor the duty devolves upon the state in each instance to either prove its intoxicating character or else that it contains more than one-half of 1 per centum of alcohol, measured by volume, and is capable of used as a beverage.” Saddler v. State, 36 Okla. Cr. 412, 255 P. 719.

The information in this case fails to charge the defendant in the language of the statute, or in words equiv-álent of an offense under the statute; and the demurrer to the information was well taken, and should have been sustained.

There are other errors assigned and argued, but, in the view we take of this record, we do not deem it necessary to consider them.

The case is reversed and remanded.

.DOYLE, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    WALTER HARVICK v. STATE.
    No. A-6152.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 1118.)
    S. B. Garrett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Jackson county on a charge of having the possession of intoxicating liquor with the intention of violating the prohibitory liquor law, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail. Judgment was rendered in February, 1926, and the appeal was lodged in this court in April, 1926. No brief in support of the appeal has been filed, and no appearance for oral argument made at the time the case was submitted. We have examined the record for jurisdictional errors, and have examined the record carefully. The evidence reasonably supports the judgment, and no fundamental error is apparent. The case is affirmed.


text:
    JOHN C. BARNHILL v. STATE.
    No. A-5970.
    Opinion Filed Jan. 16, 1928.
    (263 Pac. 153.)
    E. I. O’Reilly, for plaintiff in error.
    ■Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that on September 27, 1925, J. O'. Barnhill did unlawfully transport intoxicating liquor, to wit, one pop bottle of whisky, from a point unknown to a point near the Negro Apostolic Church, in the city of Eufaula, McIntosh county, appellant was tried and convicted and his punishment fixed at a fine of $250 and a jail term of 90 days. To reverse the judgment rendered on the verdict, he appeals.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is alleged misconduct on the part of the prosecuting attorney in asking improper questions on cross-examination of the defendant and in his argument to the jury.

J. M. Rushing, deputy sheriff, testified that he was watching and waiting for the defendant and saw him turn the corner and start north up the alley west of the Apostolic Church and he followed him, and the defendant looked back and saw him and he threw down a pop bottle; that he turned the pop bottle over to the sheriff; that he had been seeing the defendant around John Bassett’s and had been smoking him off for several days. There was whisky in this pop bottle.

At the close of the state’s case the defendant moved that a verdict of not guilty be directed for failure of proof in the form of a demurrer to the evidence. The motion was overruled and exception allowed.

Albert Barnhill, father of the defendant, testified that his son lived with him and on Saturday morning left home on a load of cotton; that the next day, ¡Sunday, about 2 o’clock he heard he was in jail; that he had been at home all that week; that Eufaula was his trading point, and he hauled all his cotton there.

His cross-examination was as follows:

“Q. Do you know how many whisky bonds you are on in the county court and the Criminal Court of Appeals now?” (Defendant’s objection sustained 'by the court.)

As a witness in his own behalf the defendant testified:

“It was on Sunday morning, I started up town, and Mr. Rushing halted me and searched me, went through my clothes, then carried me back to the place he picked up the pop bottle; I did not have the bottle and did not throw the bottle there where he found it; I never saw it until he picked it up, I live near Bower with my father, and the night before I stayed at Sam Kemp’s.”

On cross-examination, the prosecuting attorney asked the following questions:

“Q. John, you and Sam are liquor kin, ain’t you? A. No, sir.
“Q. You say you never hang around John Bassett’s, but around Sam Kemp’s. Is he the only man in Sand Town you peddle liquor for? A. I don’t peddle liquor for him. (Counsel for defendant objected and asked that it be stricken. The court sustained the objection and instructed the jury not to consider the question or answer.)
“Q. I will ask you, John, whether you are not in the practice of making whisky in Pittsburg county, you and your brother, and bringing it over here, and didn’t your brother get caught and serve a term in the county jail? A. No, sir. (The same objection and motion to strike.)
“The Court: The questions and answers regarding the defendant’s brother will be stricken.
“Q. -And you stayed at Sam Kemp’s, and was tramping over town and going from place to place, and stayed here pretty much all week? A. I was picking cotton at home and drove in Saturday.
“Q. Sam Kemp is a three times worse bootlegger than John Bassett, isn’t he? (The same objection and motion to strike sustained by the court.)”

This character of examination could serve but one purpose and have but one effect; that is, to prejudice the minds of the jury. This is shown by the verdict rendered and severe punishment assessed by the jury in this case.

While prosecuting attorneys are not expected to maintain a judicial impartiality, yet it is their duty to present the case fairly and justly.

• A person accused of crime is entitled to a fair and impartial Urial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent. Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957.

The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true, or not capable of being proved if true, is wrong, and such conduct of counsel is not cured because the court sustains objections ,to the questions. Watson v. State, 7 Okla. Cr. 590, 124 P. 101.

On the record before us it appears that the defendant, for the reasons stated, did not have that fair and impartial trial to which he was entitled under the law. The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CLYDE NICHOLS v. STATE.
    No. A-6063.
    Opinion Filed Jan. 16, 1928.
    (262 Pac. 1076.)

      K. H. Lott, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Clyde Nichols, was convicted in the county court of Osage county, Hominy division, upon information charging that in said county on the 2d day of July, 1924, he did, “unlawfully, wilfully, and wrongfully point a pistol to and at the said Max Bloom,” and in accordance with the verdict of the jury he was sentenced to pay a fine of $50 and to imprisonment in the county jail for three months. To reverse the judgment he appeals.

The prosecuting witness, Max Bloom, testified that he conducted a general mercantile store and also a filling station between Hominy and Skiatook, and bought gasoline from the Indianola oil people, that on the day charged, between 3 and 4 in the afternoon, the defendant and another employee of the Indianola Company came to his place; that defendant said they were there to take up the pump; that defendant with a pipe wrench was trying to disconnect it, saying that he wanted some more money owed to his company for gasoline; that witness told him that he was entitled to use the pump until the gas was used up, then the defendant slapped him down; that he saw that the defendant had a gun and he ran into his place of business and secured his gun; that the defendant had a pistol and pointed it at him.

A number of errors are assigned, but one of which it is deemed necessary to notice, and that is based upon the giving of two instructions as follows :

“No. 6. Gentlemen of the jury, the court charges you that in this state the law looks with serious disfavor upon any person who attempts to take it into his own hands where the courts of the state and county are open to him for redress. In this case the evidence shows and the fact is not disputed that the defendant went to the store operated by Max Bloom and attempted to take a pump after he objected to the removal of the pump. You are instructed that the evidence further shows that the defendant in this case did not have in his possession at the time he attempted to remove the pump any replevin papers such as would justify him in openly taking possession of this pump. You are instructed that after the owner of this store, Max Bloom, objected to the taking of the pump it was the duty of this defendant to have resorted to the courts for relief instead of attempting to use force and violence in taking said property. You are further instructed that under the laws of this state the prosecuting witness, Max Bloom, had the legal right to use reasonable means to prevent the taking of this property until such time as the defendant obtained possession of it through the courts of this county and state.’’
“No. 7. You are further instructed that if you believe from the evidence in this case beyond a reasonable doubt that Max Bloom was first assaulted and knocked down by the defendant while defending the taking of this property by said defendant, and that at the time Max Bloom was struck and knocked down by the defendant he had not struck the defendant, and if you further believe from the evidence in this case beyond a reasonable-doubt that after Max Bloom had been struck and knocked down that he deemed it necessary for the protection of himself, his family, and his property and that he was in and at his own place of business that he then, in order to protect his life, family, and property aforesaid, deemed it necessary to procure a gun to defend himself and property, you are instructed that this evidence cannot be discovered favorably for the defendant, for he was a, trespasser on the property of Max Bloom and was guilty of committing a misdemeanor, and the said Max Bloom was justified under the laws of this state in order to protect himself and property to use such reasonable means as he deemed necessary to eject this defendant from his place of business and property. You are further instructed that it is a misdemeanor and an offense under the laws of this state for any person except an officer of the law in the performance of ' his duty to carry a pistol and that any person who violates this law is guilty of a misdemeanor.”

It is urged that the court in giving the foregoing instructions commented upon the weight of the evidence and assumed controverted facts to have been proven, and that it was error prejudicial to the defendant for the court to instruct the jury that the defendant was guilty of a misdemeanor other than the one charged in the information.

Under the provisions of our Criminal Code, the jury are bound to take the law from the court, and questions of fact are to be decided by the jury. Section 2690, C. 0. S. 1921. The charge of the court must not invade the province of the jury, and should not extend beyond a plain statement of the law applicable to the case.

It requires no argument to show that the first three paragraphs of instruction No. 6 are improper. In view of the conflict in the evidence the court could not assume that the defendant was a trespasser.

The law requires the court, not only to abstain from positive expression as to the weight of the evidence, but to avoid even the appearance of an intimation as to the facts, and to so guard the language of its charge to the jury, which is the law of the case, that no inference, however remote or obscure, may be drawn by the jury as to the weight of the evidence. Monagham v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L. R. A. (N. S.) 1149; Moody v. State, 11 Okla. Cr. 471, 148 P. 1055; Love v. State, 12 Okla. Cr. 1, 150 P. 913.

It is the law that whoever possesses a right is entitled to defend that right no matter what may be the character of the right; it cannot lawfully be taken from the owner by violence. And violence offered for this purpose he may violently resist. To this extent instruction No. 7 is a fair statement of the law. However; the court concludes this instruction ¡by assuming the fact that the defendant was a- trespasser “and was guilty of committing a misdemean- or.”

It was the province of the jury to determine all questions of fact and conflicts in the testimony as to whether the defendant or the prosecuting witness provoked the difficulty and as to whether the defendant assaulted the prosecuting witness or was himself assaulted.

It follows that the giving of the instructions above quoted constitutes error prejudicial to the substantial rights of the defendant, in that he was thereby denied that fair' and impartial trial to which he was entitled under the law.

Other errors assigned have been carefully examined, and we are of the opinion that the court did not err in its rulings.

For the errors indicated, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    BILL PHILLIPS v. STATE.
    No. A-5967.
    Opinion Filed Jan. 21, 1928.
    (262 Pac. 1079.)

      Wilkinson & Wilkinson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Stephens county with “the crime of transporting intoxicating liquor, to wit, two pinte of whis-ky, from one place in Stephens county to another place in said county and state, namely, from a place unknown to affiant to a place in the city of Duncan., Stephens county, Okla., on Main street in said city in front of the Collinwood Rooms, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant was tried and convicted and the following sentence was imposed upon him:

“That the state of Oklahoma do have and recover of and from the defendant, Bill Phillips, the sum of $250 fine and costs of this prosecution, including an attorney’s fee taxed at $15; and that the defendant be confined in the county jail or worked upon the roads of Stephens county, as the case may be, for a period of 3 months days. And it is further ordered that, in default of payment of said fine and costs hereinbefore mentioned, the. defendant, Bill Phillips, be confined in the county jail of Stephens county, Okla., or worked upon the county roads of Stephens county, Okla., at the rate of $1 for each day so confined, or so worked until all the said fine and costs, in addition to said jail sentence, above set forth, be fully satisfied.”

To reverse the judgment and sentence defendant has appealed to this court. Several errors have been committed by the court, but we will first consider assignment 2, which is as follows :

“(2) The court erred in overruling defendant’s motion to strike the evidence of the witness I. B. Gossett from the consideration of the jury on the ground that the testimony showed that the evidence of the witness Gossett was procured in violation of the constitutional rights of the defendant without a search warrant. To the action of the said court in overruling the said motion the defendant duly excepted.”

The testimony on behalf of the state is in substance as follows: I. B. Gossett stated:

That he was chief of police of the city of Duncan; that he knew the defendant, Bill Phillips; that on the 19th day of May, 1925, he called the defendant, Phillips, over the phone and asked him to bring him some liquor. The defendant was to bring the liquor to the Collinwood Hotel. The defendant said, “Is that you, Jack?” and witness said, “Yes.” “I was sitting out in front of the hotel with Charley Roberts, when the defendant, accompanied by his wife, drove up; it was about 15 minutes after I had phoned him. The defendant got out of the car; I didn’t see any liquor there.”

Mr. Phillips got out of the car, and Charley asked him to give him that bottle, and he handed it to him, and searched him and took another one. He took two pints of whisky from the defendant; he took it from him in front of the Collinwood Rooms in the city of Duncan, Stephens county.

On cross-examination I. B. Gossett stated:

That neither he nor Mr. Roberts had a search warrant. He asked the defendant to stop, and asked what he had on him. “Mr. Roberts and myself were stationed at the hotel aiming to search the defendant when he came. We intended to take it off of him by force if he did not give it to us. I was just getting out of the car, and Mr. Roberts was the first one out. Mr. Roberts called the defendant, and stopped his car, and had the defendant get out, and asked him what he had on him, and told him to give him the bottle.”

At the conclusion of Gossett’s testimony the state rested. The defendant moved the court to exclude the testimony of I. B. Gossett from the trial for the reason that the liquor seems to have been procured without a search warrant; and also moved the court to strike the testimony of the state, which motion' was by the court overruled, and defendant duly excepted.

The defendant announced that he did not desire to introduce any testimony, and closed, but immediately asked the court to reopen the case that he might produce testimony. The state objected, and then defendant made an offer, stating the names of the witnesses, and the evidence he could produce by these witnesses. The county attorney insisted that he had discharged his witnesses; yet there is nothing in the record to disclose, when the defendant offered to make certain proof by witness W. C. Phillips and B. B. Hickman, that the witnesses had been discharged. The court refused to permit the case to be reopened upon the defendant’s motion, and defendant duly excepted. The defendant then moved the court to instruct the jury to return a verdict of not guilty, which motion was also overruled, and defendant duly excepted.

For some reason the state did not call Charley Roberts, the man whom Gossett’s testimony shows is the one that stopped defendant’s car, compelled him to get out, and demanded of the defendant to know what he had on him, and the man who searched the defendant, and, as Gossett states in his testimony, took whisky off of his person.

“In a prosecution for unlawfully transporting intoxicating liquor, defendant cannot be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, nor the evidence of the possession thereof so acquired, is admissible against him.” Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

This question has been in this court so often that it seems useless to cite authorities. The state offered no testimony other than the testimony of witness Gossett, which testimony was procured by stopping the defendant’s car, compelling him to get out, and searching him, without any warrant for his arrest or a search warrant.

The objection of the defendant to the admission of the testimony on behalf of the state, on, the ground that it was procured unlawfully, was well taken, and his motion should have been sustained. There are many errors assigned by the defendant, but, in the view we take of this record, we do not deem it necessary to consider them.

The case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    CHARLEY CRANE et al. v. STATE.
    No. A-6067.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 174.)

      T. C. Greer and Hughes & Wells, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error* hereinafter called defendants, were convicted in the county court of Tillman county on a charge of having the possession of whisky, and were each sentenced to serve a term of 60 days in the county jail and to pay a fine of $250.

At the time charged in the information certain officers discovered a still in operation in some extremely rough woodlands near the bank of the Red river, in the extreme south of Tillman county. The three defendants were in charge. There was a large quantity of mash, sugar, malt, and 80 gallons of whisky, a camping outfit, a Ford car, and numerous other items of property indicating the manufacture of whisky on a considerable scale. The case was transferred' from the Frederick division of the county court to the Grandfield division. The regular county judge, being a witness, disqualified, and John B. Wilson, a member of the bar, was selected as special judge.

Prior to the trial of this case a charge of felony alleging a conspiracy to violate 'the prohibitory liquor laws of the state was instituted in the district court in Tillman county, a trial had thereon, and the defendants convicted. The defendants in the instant case in the county court interposed a plea of former jeopardy on the theory that the conspiracy case in the district court was for the same offense as this case and was a bar to any further prosecution. The conviction in the district court was appealed to this court and reversed (Crane et al. v. State, 38 Okla. Cr. 348, 261 P. 982), following the recent case of Taylor v. State, 38 Okla. Cr. 350, 261 P. 978, where it is held that the conspiracy law under which that case was prosecuted (section 1652, Comp. Stat. 1921) had no application to the prohibitory enforcement sections of the state Constitution. Under the rule announced in that case the district court was without jurisdiction in the conspiracy case' pleaded by defendants as a basis for their plea of former jeopardy. There being no jurisdiction in the district court, there could be, of course, no jeopardy, and the plea was properly rejected by the county court.

At the time this prosecution was instituted there was also instituted a prosecution against defendants for having possession of a still. The history of that case is very similar to the history of this case. That case was tried, and the jury returned its verdict finding the defendants guilty and fixing their punishment at imprisonment in the county jail for a term of 60 days and a fine of $250, the same punishment as assessed in this case. The defendants, in addition to a plea of former jeopardy based on the conspiracy case in the district court as just stated, further pleaded former jeopardy by reason of the proceeding in the case charging the possession of a still, which was tried in the county court on the same day that this case was tried, and in which a verdict had been returned, but no judgment and sentence had been imposed at the time of the trial of this case. That case was appealed to this court, and a decision has just been rendered affirming it. See case No. A-6068, Handley et al. v. State, 39 Okla. Cr. 93, 263 P. 173.

It is clearly disclosed by the record that the possession of a still, as charged in case No. A-6068', and the possession of whisky, as charged in this case, was one possession, act, and transaction. The state cannot divide the different items of possession and prosecute each as a separate offense.

In the case of Estep v. State, 11 Okla. Cr. 103, 143 P. 64, it was held:

“Under our system of jurisprudence, if the state elects through its authorized officers to prosecute an offense in one of its phases, or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or transaction under the color of another name.”

In the case of Hourigan v. State, 28 Okla. Cr. 10, 258 P. 1057, this court said:

“The ‘same offense,’ as the term is used in the constitutional guaranty (isection 21, art. 2, state Constitution) and the statutes just referred to, does not mean the same offense eo nomine, but means the same criminal act, transaction, or omission. To constitute a good plea on the ground of former jeopardy, the offense in which the plea is made must be the same as that in which jeopardy has attached. But to make the offenses the same, the informa-tions need not be in identical language. The offenses may differ in name and yet be the same. First Bishop’s New Criminal Law, par. 1050.
“Where the same testimony will support both charges, it is generally said that the offenses are the same. Estep v. State, 11 Okla. Cr. 103, 143 P. 64. The testimony in the case at bar is practically the same as the testimony given in No. A-5855. It discloses that at the time charged defendant with others had possession of the parts of a still, and a quantity of mash. Defendant has been convicted of having possession of mash. The state may not split or divide up an offense into the different parts and punish an accused for each of such parts. Hirshfield v. State, 11 Tex. App. 207.
“If an accused in one act and transaction should steal different items of property from different owners, he is guilty of but one crime, or if in one act or transaction he should transport or have the possession of whisky, beer, wine, and alcohol, certainly he could not be punished for each separate item, but the possession of all would constitute but one offense. * * *”

Section 21, art. 2, of the state Constitution, and sections 2019, 2626, Comp. Stat. 1921, forbid that any person shall be twice put in jeopardy for the same offense. Under the terms of these sections of the Constitution and the statute as construed in the case of Estep v. State, 11 Okla. Cr. 103, 143 P. 64; Hourigan v. State, 38 Okla. Cr. 10, 258 P. 1057. 1057, and State v. Brooks, 38 Okla. Cr. 302, 260 P. 785, the judgment cannot stand.

The case is reversed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    ARLIE KIRK v. STATE.
    No. A-5969.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 170.)
    John T. Hays, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Kio^p county, September 3, 1925, Arlie Kirk and Mrs. Arlie Kirk did then and there have in their possession intoxicating liquor, to wit, whisky, with the unlawful intent on the part of them to violate the prohibitory liquor laws of the state. On the trial the jury returned a verdict finding the defendants guilty and fixing the punishment of each at a fine of $50 and imprisonment for 30 days. Motion for new trial was duly filed and sustained as to Mrs. Arlie Kirk and denied as to appellant, Arlie Kirk. From the judgment rendered in pursuance of the verdict, he appeals.

The main question presented is whether the evidence is sufficient to sustain the verdict.

Tom Bryan and Rex Downs, deputy sheriffs, and J. F. McCrary testified that on September 3, 1925, they went into a place two miles west of Snyder and searched the premises. Bryan testified that when they got out of their car Mrs. Kirk ran into the house, picked up a cream pitcher, and poured its contents out; that they found a fruit jar in the house that had a spoonful of something like whisky in it; that Mrs. Kirk grabbed it and went out the back door, and he heard a smash, and she said, “Now you have not got any evidence;” that he did not have a search warrant.

Rex Downs testified that he started to read a search warrant to Mr. Kirk, and Mrs. Kirk ran into the house, picked up a cream pitcher, and poured some whisky out of it on the floor; that they found a half gallon of whisky in a field across the road about 50 yards away; that he thought the field belonged to Mr. Orrell; and that Mr. Kirk did not have any control or possession of the field.

J. F. McCrary testified that he was a Baptist minister at Snyder and went with the officers to the defendant’s place; that when they went in Mrs. Kirk had a cream pitcher in her hand; that it was empty when he saw it, but it smelled like whisky, and they found a fruit jar that smelled like whisky. Witness Downs, recalled, identified the jar containing whisky found in the field across the road, and the court overruled defendant’s objections to the competency of the same.

When the state rested the defendants moved the court to strike the evidence on the ground that the same was obtained by an illegal search and in violation of their constitutional rights. The motion was overruled.

The defendants then moved the court to advise the jury to return a verdict of acquittal on the ground that the evidence was insufficient to prove the charge, which motion was overruled.

Mrs. Kirk as a witness in her own behalf testified that when the officers and Baptist minister came in she was standing by the table; that Mr. Bryan was followed by Mr. White, who had a gun in his hand, and behind him was the Baptist preacher; that she had a cream pitcher that would hold less than a half pint in her hand while they were searching the house, that there was no whisky in the picher; she did not empty anything out of it; that she knew nothing about the gallon of whisky that was found in the field.

Appellant as a witness in his own behalf denied that there was any whisky in the house, denied that he knew the fruit jar that the officers picked up in the field was out there; that it did not belong to him and he did not know who put it there; that he had no control or possession of the land upon which it was found.

An examination of the record convinces us that the evidence was not sufficient to sustain the verdict and judgment. The state failed to prove that the place where the jar was found was in the possession or under the control of appellant, or that the jar or that the liquor was his, or that he had possession of the same.

Where the evidence raises a mere suspicion, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to return a verdict of acquittal.

Because the verdict and judgment is contrary to law and the evidence, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ARLIE KIRK v. STATE.
    No. A-5968.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 169.)
    Rummons & Hughes and John T. Hays, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Arlie Kirk, was convicted on an information which charges that in the county of Kiowa, January 23, 1925, “he, the said Arlie Kirk, then and there being, did then and there unlawfully, willfully and wrongfully transport and convey intoxicating liquor, to wit, about two gallons of whisky, from one place in Kiowa county unknown to a point on Main street in the town of Snyder, north of the Wallace Gin,” and in accordance with the verdict of the jury he was sentenced to pay a fine of $500 and to imprisonment in the county jail for six months. From the judgment he appeals.

The errors assigned are: First, the information is insufficient in that it does not state facts sufficient to' constitute an offense; second, that the evidence is insufficient to support the verdict and judgment.

In support of the first assignment it is urged that the information is not sufficiently direct as required by law in the charging part thereof. Obviously there is no merit in this contention. The information is sufficient in that the act charged is clearly and distinctly set forth in ordinary and' concise language, and in such a manner as to enable a person of common understanding to know what is intended.

It follows that the demurrer thereto was properly overruled.

The last assignment urged is that the evidence is not sufficient to sustain the verdict. The testimony of Rex Downs and Jack Ball is to the effect: That they saw appellant take two sacks of empty fruit jars from his father’s wagon yard in Snyder and place them in his car. That he then drove his car down to his brother’s filling station, near the west end of Snyder. There they saw appellant remove the sacks of empty fruit jars from the car and take them into his brother’s house. That a few minutes afterwards appellant came out of his brother’s house with several fruit jars, which were full, which he placed in his car, and appellant and his wife then got into the car. They drove east to Main street, then turned north on Main street. That the officers in their car drove around to Main street. There Rex Downs got out of the car and attempted to stop appel-ant and shot at his car casing. That appellant continued to drive on north.

Jack Ball testified that after Downs got out of the car he turned his car around and gave chase down Main street, across the railroad by Wallace’s Gin and there two fruit jars were thrown from appellant’s car, one lighting in a mudhole and the other in the weeds by the side of the road; that he stopped his car, got out, and picked up the two jars of whisky.

• For the defense John Thorpe testified that he was standing on the sidewalk between the Wallace Gin and the depot, and his attention was attracted by the chase ; that if there had been any fruit jar or anything of that nature thrown from the car he could and would have seen it, and that none were thrown from said car.

Appellant’s father and mother both testified that he did not take any sacks containing fruit jars from their place at that time. His brother, Roy Kirk, and Mrs. Roy Kirk both testified that appellant did not bring any sack or sacks of fruit jars to their place on that occasion and did not take any jar or jars from their house.

As a witness in his own behalf, appellant denied taking the sacks from his father’s wagon yard, or leaving the same at his brother’s place, and denied taking any jars from his brother’s place and placing them in his car; that he was leaving for Oklahoma City with his wife to visit her relations there; that he saw Rex Downs get out of the car on Main street, and he turned to the left and after he passed him Downs fired a shot and he drove on; that he did not have any whisky in the car and did not throw any fruit jars from the car. The testimony of Mrs. Arlie Kirk was substantially the same as that of appellant,

It was the peculiar province of the jury to pass upon the credibility of the witnesses, and the jury as triers of disputed questions of fact have determined the controversy. In this case the question of appellant’s guilt was submitted to the jury upon instructions which fully and fairly covered the law of the case.

On the trial no objections were made to the admission of evidence.

Finding no prejudicial error in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


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    JIM BARRETT v. STATE.
    No. A-5982.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 166.)
    Patton & Adwon, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty; Gen., and W. P. Morrison, Co. Atty., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of attempting to manufacture whisky, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50.

The appeal is by transcript, the evidence not being brought up. This record discloses that defendant was tried and verdict returned February 21, 1923’. The verdict assessed the punishment at confinement in the county jail for a term of three months and a fine of $250. Motion for a new trial was filed on February 23, 1923, and no action or order in reference thereto shown. On September 1,1925, a supplemental motion for a new trial was filed attempting to set up a plea of former jeopardy, in that defendant, subsequent to his trial in the county court, had been tried on a charge arising out of the same transaction in the federal court. This was overruled September 1, 1925, and judgment and sentence entered September 2, 1925.

Defendant argues first that an attempt to manufacture whisky as charged in the information is not a crime. This contention cannot be sustained. This court in the case of Neivar v. State, 26 Okla. Cr. 112, 222 P. 279, citing the earlier case of State v. Thomason, 23 Okla. Cr. 104, 212 P. 1026, held that a prosecution will lie under section 2297, Comp. St. 1921, for the offense of attempting to manufacture intoxicating liquors.

It is next contended that the court lost jurisdiction of the subject-matter by reason of the long delay in passing on the motion for a new trial. This court in the case of Collins v. State, 24 Okla. Cr. 117, 217 P. 896, where a similar contention was raised, said:

“In the absence of a statute to the contrary, judgment need not necessarily be pronounced at the same term of court at which the verdict or plea of guilty was had, and if the court’s purpose in postponing judgment and sentence is incident to the administration of justice within its conceded powers, and its orders postponing judgment and sentence are unconditional and to definite periods, the jurisdiction of the court to pronounce judgment and sentence at a term after the trial term is not affected.
' “While the court may delay pronouncing judgment for the purpose of hearing and determining motions for new trial or in arrest of judgment, or for other proper causes, it cannot indefinitely suspend pronouncing judgment and sentence.”

In that case, however, almost five years elapsed between the time the verdict was rendered and the sentence was imposed, and the record shows that the case was passed indefinitely. In the instant case the motion for a new trial was not disposed of, and a supplemental motion was filed on the day it was finally overruled and judgment and sentence entered. No order indefinitely passing or continuing the case for the rendering of judgment and sentence is shown. We will not presume error, but will presume that it was continued for a proper purpose in the administration of justice.

The judgment entered did not conform with the verdict of the jury. This court, in the case of Caudill v. State, 9 Okla. Cr. 66, 130 P. 812, held that the judgment of conviction and sentence must conform to the verdict where the verdict is in conformity with the law. Where there is a variance between the verdict of the jury and the sentence of the court, this court should remand the case with directions to the trial court to correct its judgment and to make it conform to the verdict. It is the order of this court that this case be remanded to the county court of 'Canadian county, and the judge of such court is ordered to render judgment and sentence as fixed by the verdict.

Case remanded to the county court, with directions to render judgment in conformity to the verdict.

DOYLE, P. J., and DAVENPORT, J., concur.


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    W. H. IRWIN v. STATE.
    No. A-5954.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 164.)

      Owen F. Renegar, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Wash-ita county, on the 21st day of May, 1925, “W. H. Irwin,, did have in his possession certain intoxicating liquors, to wit, about 50 gallons of wine with intent to violate the prohibition laws,” he was convicted and in accordance with the verdict of the jury was sentenced to 30 days in the county jail and to pay a fine of $200. This appeal is from the judgment.

A number of errors are assigned and argued, but one of which is deemed necessary to notice, and that is insufficiency of the evidence to sustain a conviction.

There is but little conflict in the evidence.

The evidence to support the conviction was me testimony of John Ramsey, Philo Lambert, and W. P. Hopkins to the effect: That in executing a search warrant they as deputy sheriffs visited the defendant’s farm, a little over two miles west of the town of Rocky. They searched the house and premises and found one barrel inside a shed and a barrel outside on the north side of it, both about three-fourths full of a liquid they called wine. That they took a half gallon of the contents of the barrels and poured out the rest; they each testified.that the defendant said that the barrels contained vinegar that he had made from the skimmings from cane sirup and fruit juices.

Witness Ramsey was asked, “Q. Do you know it was intoxicating liquor that you found of your own personal .knowledge?” and answered, “Well; I could not say, because I did not drink enough of it to tell.”

Witness Hopkins testified “it tasted like wine.”

On cross-examination he was asked: “Q. You don’t know how much alcohol it has in it, do you?” The county attorney’s objection sustained.

At the close of the testimony for the state the defendant moved for a directed verdict of acquittal on the ground that the evidence failed to show that the liquid in the barrels contained more than one-half of 1 per cent of alcohol measured by volume, or that the same was capable of being used as a beverage. The motion was overruled.

As a witness in his own behalf the defendant testified that he had lived in Washita county for the past 33 years; that he was at home when the officers came there .and he showed them the barrels containing vinegar; that in the fall of ’22 he took the skimmings of sirup from Mr. Hawkins’ cane mill and placed them in the barrel with rainwater ; that Mr. Gordon at Rocky had a carload of apples and gave him the faulty apples which he mashed up and put in the barrel with rainwater for the purpose of making vinegar'; that these barrels were there where anybody passing the road could see them; that he made about a barrel and a half of vinegar, and it was only used as vinegar.

J. F. Hawkins testified that the defendant helped him to make sorghum in the fall of 1922 and in the fall of 1923, and he carried nearly a barrel of the skimmings home for the purpose of making vinegar, and that he saved a keg full to make vinegar.

Seven witnesses testified to an acquaintance of the defendant of from 20 to 30 years, and that they knew his reputation in that community as an honest, law abiding citizen, and that reputation was good, which testimony was undisputed.

We have examined the whole record with care, and we find that there was no competent evidence showing or tending to show that the liquid seized on the defendant’s place ■was intoxicating liquor, or that the same was capable of being used as a beverage.

Because the evidence is not sufficient to sustain the conviction, the judgment is reversed, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


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    CHARLIE GOSS v. STATE.
    No. A-6239.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 161.)
    Lowry Law Offices, Chester H. Lowry, Brown Moore, and R. J. Shive, for plaintiff in error.
    Edwin Dabney, 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 Payne county on a charge of maintaining a place where intoxicating liquors were sold and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 60 days. Pending this appeal, defendant was admitted to bail.

A motion to dismiss his appeal has been filed by the Attorney 'General, for the reason that pending this appeal 'defendant has become a fugitive from justice and his whereabouts are not known, and defendant is where he cannot be made to respond to any judgment against him. Attached to said motion is an affidavit of John B. Calderhead, sheriff of Payne county, who states that on January 4, 1928, a warrant for the arrest of defendant on a charge of murder was placed in the hands of affiant for the arrest of defendant, and on January 14, 1928, another warrant for defendant on a charge of murder was placed in his hands for the arrest, of defendant, that defendant is a fugitive from justice, and affiant has made diligent effort and is unable to apprehend or learn his whereabouts. Attached to said affidavit is a certified copy of the warrants. Also there is attached an affidavit of George W. Wiles, a deputy sheriff of Payne county, the affidavit of A. D. Williams, a deputy sheriff, and the further affidavit of D. B. Ferguson, a deputy sheriff, all to substantially the same effect. There is also' attached a copy of the Cushing Daily Citizen, a newspaper printed in 'Cushing, Payne county, and dated January 2, 1928, setting out an account of the killing of Essie May Young, by defendant, and the wounding of three other persons. It is further made to appear that one of the persons wounded thereafter on January 7, 1928, died as a result of his wounds, which death is the basis of the second of said warrants of arrest.

It is well settled that, where a defendant is convicted and prosecutes an appeal to this court and pending such appeal becomes a fugitive from justice, and it appears that he cannot be made to respond to any judgment or order which may be made in the case, his appeal will be dismissed.

The appeal is dismissed.

DOYLE, P. J., and DAVENPORT, J., concur.


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    J. C. McCLURE v. STATE.
    No. A-6281.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 161.)
    Titus & Talbot and H. C. Kirkendall, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, J. C. McClure, hereinafter called the defendant, was convicted in the district court of Alfalfa county of the crime of receiving a deposit in an insolvent bank, knowing the said bank to be insolvent, and while acting as the president of said bank, and was sentenced to serve a term of five years in the penitentiary and pay a fine of $5,000.. Motion for a new trial was filed and overruled, and defendant duly excepted. From the judgment so rendered, defendant appeals.

The defendant has filed no brief supporting the appeal, although the time for filing the brief has long since passed and various extensions of time have been granted; the last extension of time expiring on October 24, 1927. Where no briefs are filed, the court will examine the record proper, and, where no prejudicial error is apparent, the judgment of the trial court will be affirmed. After a careful examination of the record, the court finds that the indictment is sufficient, that the testimony was sufficient to support the verdict, that the instructions fairly stated the law applicable to the case and were fair to the defendant, and it appears that the defendant was otherwise accorded a fair trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


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    N. W. RICKER v. STATE.
    No. A-5952.
    Opinion Filed Jan. 21, 1928.
    (263 Pac. 160.)
    Perry J. Morris and O. L. Aley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that, on the 8th day of October, 1924, N. W. Ricker “did sell to one B. E. Slagle one pint of whisky.” On the trial the jury returned a verdict finding him guilty, leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled. On August 15, 1925, the court sentenced appellant to imprisonment in the county jail for 30 days, and to pay a fine of $100. To reverse the judgment he appeals.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and rulings of the court in admitting incompetent evidence.

The only evidence in this case against appellant was the uncorroborated testimony of one B. E. Slagle, who testified that he was employed as a detective and undercover man to secure evidence against certain persons for violations of the liquor laws, whose names had been furnished to him. He testified that he bought a pint of whisky from appellant behind the corner drug store in Shattuck, that it was in a brown beer bottle, and he paid him $2 for it.

On cross-examination, Slagle admitted drinking whis-ky, shooting craps, and playing poker, while he was staying at the hotel in Shattuck.

Mae Bacon Henley testified that she was county clerk, and produced the official bond of the defendant, N. W. Ricker, showing that he was the duly elected and Qualified constable in and for district No. 4, Ellis county.

As a witness in his own behalf, the defendant testified that he was a resident of the town of Shattuck since 1908, was a stock raiser, engaged in real estate and insurance; that the prosecuting witness spoke to him in front of his office, and asked him if this was Mr. Ricker, and said that he was on a deal for the Earl Hotel, that he had a quarter section of land west of Oklahoma City, that he wanted to trade, and said that his name was Smith; that he met him the next day, and the next day after this at one time Smith pulled out an insurance application of the Western Georgia, and asked him if anybody here was writing that insurance, and then said, “I am dying for a drink this morning. I thought maybe you would know where I can rustle some,” and he answered, “Mr. Smith, no doubt there is some in the country, but I would not know where to find it”; that he never had a conversation with him after that; that he did not take a fruit jar of liquor to the Earl Hotel to a room where Slagle was present and sell it to a guest at the hotel; that he was the duly qualified constable of that district, and never sold a drop of whisky in his life. .

J. T. Breen testified that he lived at S'hattuck 17 years, and was engaged in buying and shipping cattle, saw the prosecuting witness who was going under the name of Smith at the time at the hotel; that he took him up to his room, and said that he was trading for the hotel, and there produced a bottle of whisky, and they took ten or twelve drinks, and witness decided there would not be any real estate deal, and left the room.

An examination of the record leads to the conclusion that the conviction should be reversed without regard to the merits.

The transcript of the testimony discloses that, against the defendant’s objections, the witness Slagle testified as follows:

“Q. Now, did you at any time prior to the time you testified about making this purchase from Mr. Ricker see him make a sale to any other person? A. I did; yes, sir. (Objection overruled. Exception allowed.)
“Q. All right, you may go ahead and state where this took place, and just what took place.”

His answer, covering more than a page of the transcript, was in substance that, at the hotel in Shattuck, the defendant sold a quart of whisky to a man whose name was Husser or Howser.

The general rule is that, when a defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent of that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689.

It goes without saying that this court will take notice of the fact that the prosecuting witness, B. E. Slagle, has heretofore been successfully impeached and discredited as a witness, as shown by numerous decisions of this court.

For the reasons stated, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.