text:
    H. D. JOHNSON v. STATE.
    No. A-8261.
    Sept. 19, 1931.
    (3 Pac. [2d] 246.)

      J. E. Falkenberg, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grant county of burglary in the second degree and was sentenced to serve a term of three years in the penitentiary.

Defendant was charged jointly with two others with breaking and entering a store building in the to wn of East Lamont with the intent to steal. The evidence amply sustains the judgment. The record discloses the following: After the case had been submitted to the jury and they had deliberated for some time, they returned into court and tendered a verdict as follows: “We the jury im-panelled and sworn to try the issues in the above entitled cause, do on our oaths find the defendant guilty and fix his punishment at two years in the penitentiary, and we ask that the jail sentence be stricken.” The court declined to receive this verdict and directed the jury to return and reform it. Later they returned a verdict as follows: “We, the jury, impanelled and sworn to try the issues in the above entitled cause, do upon our oaths, find the defendant guilty as charged in the information, but we fail to agree upon his punishment and his punishment is, therefore, left to be fixed and assessed by the court.”

The principal error complained of is that the court erred in not receiving the verdict as first returned, in which the punishment of defendant was fixed at two years in the penitentiary. The verdict first tendered was valid. Knopp v. State, 49 Okla. Cr. 416, 295 Pac. 228. The jail time referred to in the verdict was the time defendant had been incarcerated in the jail of Grant county while awaiting trial and is a recommendation that this jail time be credited on the two years fixed by the verdict. This was a matter not within the province of the jury; that part of it recommending that defendant’s jail time be stricken is surplusage. It was not error for the court to send the jury out to reform or to correct the verdict by striking out the recommendation. Apparently the jury could not agree upon this and disposed of the matter by leaving the punishment to the court. In view, however, of the fact that the jury by the verdict first tendered did agree on the minimum punishment, this court will modify the judgment by reducing it from three years in the penitentiary to two years in the penitentiary.

As modified, the case is affirmed.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    Ex parte RAY FOWLER.
    No. A-8220.
    Sept. 19, 1931.
    (3 Pac. [2d] 247.)

      Heber Finch, for petitioner.
    J. Berry King, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the state penitentiary at Mc-Alester. That on May 7, 1929, he was sentenced on a plea of guilty in three criminal cases for felony, in each case to a term of two years, to run concurrently. That on May 18, before any commitments had been issued on the judgments or any part of them executed, defendant1 again appeared before the court and asked leave, and was by the court permitted to withdraw his pleas of guilty, and he then again entered a plea of guilty and was sentenced to a term of five years in each of said three cases. That ho order was ever made setting aside the judgments and- sentences of two years in the cases. That the court was without jurisdiction to pronounce a valid judgment and sentence of five years in said cases. , ' •’ •

There is no controversy as to the facts. It appears from the pleadings, evidence, and stipulations that a judicial parole or order of suspension of sentence was allowed in said cases on May 18, which was revoked later by the trial judge. That on -February 18, 1930, petitioner was delivered to the warden of the penitentiary on the second judgments of five years. He contends that with his allowance of good time he has fully served and discharged the two-year valid sentences first imposed.

The question is: Did the action of the court, in permitting defendant to withdraw his plea of guilty after judgment had been entered, amount to a setting aside of the judgments previously entered and give the court jurisdiction to enter the judgments of five years imposed on May 18? Section 2621, Comp. St. 1921, permits a withdrawal of a plea of guilty before judgment. The right to withdraw a plea of guilty is not limited to those cases in which the application is made before judgment, but it may be made after judgment. Turner v. State, 33 Okla. Cr. 97, 242 Pac. 1053; Howington v. State, 30 Okla. Cr. 243, 235 Pac. 931; Cook v. State, 45 Okla. Cr. 69, 281 Pac. 819. In cases where the application is made to withdraw the plea of guilty after judgment, it has been the prevailing practice that the application also apply to set aside the judgment entered. If, however, the application tO' withdraw the plea does not in terms also ask that the judgment based on the plea be set aside, does it not do so in fact? The judgments here are based on the pleas of guilty. If the pleas of guilty are withdrawn, there is nothing to support the judgments and the orders of the court permitting defendant to withdraw his pleas of guilty are tantamount to orders setting, aside the judgments. For, when the pleas are withdrawn, the judgments fall. No case involving a state of facts similar to those here presented has been called to our attention, nor have we been able to find such a case. Somewhat analogous is the case of State v. Jackson, 221 Mo. 478, 120 S. W. 66, 68, 133 Am. St. Rep. 477, which was a case in which a defendant had been convicted and in due time had filed his motion for a new trial. While his motion was pending and undetermined, the court imposed sentence and entered judgment. The Supreme Court in disposing of this question said:

“* * * The defendant filed his motion within the statutory period after the return of the verdict, and before the rendition of judgment. Hence it .follows, notwithstanding the court did not before sentence and judgment ovei\tvule the motion for new trial, yet the court must be presumed to have full knowledge of its records and to know that the motion for new trial had been filed and was then pending. The only logical conclusion that can be reached is that the sentence and judgment rendered against the defendant during the pendency of the motion for new trial was in effect an overruling of such motion. This being the effect of the sentence and judgment pending the motion for new trial, and then subsequently formally overruling such motion, we are of the opinion that the defendant has a right to a full hearing upon the errors assigned in his motion for new trial. Manifestly there was no necessity for the defendant, when the court propounded the question to him as to whether he had anything to say why he should not be sentenced, to state that his motion for new trial alleged the grounds and reasons why he should not be sentenced, for presumptively the court must be held to have had knowledge of the fact that the motion for new trial had been filed and was pending, as well as the grounds alleged in it. We repeat that the rendering of the judgment against the defendant while the motion for new trial was pending was in effect a denial of such motion.”

Applying the reasoning in that case to the case before us, the defendant knew at the time he asked to withdraw his first pleas of guilty that judgments had been pronounced. The court also knew this, and when he made the order allowing, defendant to withdraw his former pleas for the purpose of again pleading, such order was in effect a setting aside of the former judgment, and when that was done the court had jurisdiction to again receive the pleas of defendant and to enter valid judgments on the pleas.

These judgments being valid, it follows that the writ must be denied.

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


author: CHAPPELL, J.

text:
    Ex parte HOWARD RUSSELL.
    No. A-8250.
    Sept. 19, 1931.
    (3 Pac. [2d] 248.)
    G. E. Groom, for petitioner.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Petitioner alleges that he is restrained of his liberty at Tulsa, Okla., by Charles Price, sheriff of that county; that the cause of said restraint, according to the best knowledge and belief of the petitioner, is that he is held by warrant issued out of the court of common pleas of Tulsa county, and that petitioner is held for an alleged crime, to wit, the possession of burglary tools; that an illegal and unlawful complaint or information has been filed against petitioner in Tulsa, before the court of common pleas, and petitioner is held to answer for said alleged crime; that section 2065, C. O. S. 1921, which is the alleged authority for the issuance of the complaint, is unconstitutional and void for that it is in violation of the Fourteenth Amendment to the Constitution of the United States and of the Constitution of Oklahoma (article 2, § 7), in that it deprives petitioner of his liberty without due process of law.

To this petition Charles Price, the sheriff, makes response that he is holding petitioner under a commitment issued out of the municipal criminal court of the city of Tulsa, wherein the petitioner was convicted of the crime of vagrancy and was ordered to pay a fine of $100 and $10.60 costs and to be committed to the Tulsa county jail for a period of thirty days, which commitment was issued on the 15th day of August, 1931; that the fine and costs have not been paid in said case.

Respondent further answers that he is holding defendant upon a commitment issued out of the court of common pleas of Tulsa county, on the 17th day of August, 1931, wherein Eugene Fowler, Roy Richardson, and Howard Russell were bound over on preliminary examination on a charge of unlawful possession of burglary tools and their bonds fixed by the court at $1,000 each, and that defendant has not made bond in said cause, (Which order of commitment is signed by Wm. N. Randolph, one of the judges of the court of common pleas of the city of Tulsa.

Where it appears from the response of the officer that he is holding petitioner upon a commitment duly signed for a conviction upon another offense, and that the judgment and sentence rendered against the defendant in that cause has not- been satisfied, a writ of habeas corpus will not be granted, since it could not cause the discharge of petitioner.

The writ is therefore denied.

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


text:
    IRA JONES v. STATE.
    No. A-8183.
    Sept. 19, 1931.
    (3 Pac. [2d] 250.)

      O. H. Whitt, 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 Pittsburg 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 perod of ten years.

The evidence of the state is that a dance for colored people was being given at the home of Rosie Hayes, in McAlester; that deceased and defendant attended that dance; that defendant was dancing with a colored girl and defendant’s wife bcame jealous and went over and attacked defendant, and that defendant grappled with her; that deceased undertook to separate these parties and stop the fuss; that deceased caught hold of defendant and attempted to pull him away from his wife, and thereupon defendant drew a revolver he was carrying and shot deceased in the stomach; and that deceased died from the effects of that wound.

Defendant sought to justify the homicide on the ground of self-defense, and testified to facts which, if believed by the jury, might have constituted self-defense.

Some time after defendant’s arrest, he made in writing and signed a voluntary statement to the county attorney. This statement, which was introduced in evidence, contradicted the testimony of defendant on the question of self-defense.

Defendant contends, first, that this evidence is insufficient to support the verdict of the jury. As usual in trials of this kind, there is a conflict in the evidence. It was for the jury to determine which of the witnesses they would believe. There is an abundance of evidence in the record to support the verdict of the jury.

It is next contended that the punishment is excessive. Under the evidence the jury could have found the defendant guilty of murder. For some reason not appearing in the record the jury were merciful. Under circumstances like those revealed by the evidence in this case, ten years’ imprisonment in the penitentiary for a young man cannot be said to be excessive.

For the reasons stated, the cause is affirmed.

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


text:
    WAYNE THOMPSON v. STATE.
    No. A-8051.
    Sept. 19, 1931.
    (3 Pac. [2d] 251.)
    W. H. Cooper, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county of rape in the second degree and his punishment fixed at four years in the penitentiary.

The record discloses that at the time charged defendant accomplished an act of sexual intercourse with the prosecutrix with her consent. She was under the age of sixteen and evidently unchaste. We deem it unnecessary to further set out the facts. The prosecutrix testified to the act of intercourse, and a male companion with defendant at the time corroborated her in all particulars except as to the act of intercourse.

It is first argued that the court erred in overruling the defendant’s motion to quash the information. Defendant was charged before the committing magistrate of rape in the first degree. He was held for the action of the district court for rape in the second degree. The county attorney in drawing the information labeled the offense “first” degree rape, although the charging part of the information alleges only second degree rape. When the motion to quash on this ground was presented, the court permitted the county attorney to change the designation of the crime from “first” to “second” degree rape, the word “first” being stricken out and the word “second” inserted. Under section 2512, Comp. Stat. 1921, the amendment was proper, as one of form only. French et al. v. State, 17 Okla. Cr. 542, 190 Pac. 707; Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Orum v. State, 45 Okla. Cr. 193, 282 Pac. 899; Rich v. State, 46 Okla. Cr. 242, 284 Pac. 903.

Some other matters are briefly argued including the assignment of error in overruling an application for continuance. An examination of the record on this point discloses no material error.

Upon a consideration of the entire record we are of the opinion that the punishment assessed is excessive and the judgment should be modified by reducing it from a term of four years in tbe penitentiary to a term of two years in tbe penitentiary.

As modified, tbe ease is affirmed.

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


author: DAVENPORT, P. J.

text:
    JAY HODGE v. STATE.
    No. A-8050.
    Sept. 19, 1931.
    (3 Pac. [2d] 252.)
    W. H. C. Taylor, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter referred to as the defendant, was convicted of obtaining and receiving $50 from Cloris Smith and Dallas Palmer, knowing at tbe time be received tbe money that the same was stolen property and not tbe property of the said Cloris Smith and Dallas Palmer, and was sentenced to serve a term of two years in tbe state penitentiary, from which judgment tbe defendant has appealed.

Tbe testimony on behalf of the state tended to show that a store belonging to W. F. Fuss, at Wakita, had been burglarized and some money stolen; Cloris Smith and Dallas Palmer burglarized the store and secured some ninety-odd dollars in money; a day or two after the store was burglarized the defendant in this case, with .Smith and Palmer and other parties, went to a dance at Manchester some distance from Wakita. Palmer testified that at Manchester Cloris Smith was spending some money and the defendant asked where Smith got the money, and Palmer replied that he might have gotten it at the Fuss store, or words to that effect. The testimony further shows by Smith and Palmer, who burglarized the store, that, after they returned from the dance at Manchester, they together with the defendant decided to drive to Enid for the purpose of buying some whisky, and on the road from Wakita to Enid Smith and Palmer each turned over to the defendant $25. They say they turned the money over to the defendant in Grant county, and the defendant admits receiving the money, but says it was near the city of Enid. The testimony shows that the parties visited Enid but did not buy any whisky, and that the defendant did not return home with Smith and Palmer.

The defendant denies any knowledge of who burglarized the store, and denies he had any knowledge of where the money came from that was turned over to him by Smith and Palmer. The testimony of the defendant further tends to show that, while the witnesses Smith and Palmer and the defendant were in jail, Smith and Palmer in substance made statements that the defendant knew nothing about the robbery or where the money they turned over to him came from.

Several errors have been assigned by the defendant. The first error assigned by the defendant is: “The court erred in overruling the demurrer to the information filed therein, and holding that said information stated an offense under the laws of Oklahoma, and in holding that said information was not duplicitous in that it alleges that the defendant received $25 from Oloris Smith, and $25 from Dallas Palmer, stolen money, knowing the same was stolen money.”

Section 2558, O. O. S. 1921, in part, is as follows:

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information.”

The true test to determine whether or not the information is duplicitous is, Could a conviction be had, if a prosecution were sought under the allegations that the defendant received $25 from Cloris Smith, knowing the same to have been stolen, and could a prosecution be maintained against the defendant for taking $25 from Dallas Palmer, knowing the same to have been stolen? We think it could. The information in this case charges two separate and distinct offenses, one for having received $25 in money from Cloris Smith, knowing the same to have been stolen, and one for receiving $25 in money from Dallas Palmer, knowing the same to have been stolen. It is clearly shown that the information is duplicitous, and the demurrer to the same should have' been sustained. Scott v. State, 4 Okla. Cr. 70, 109 Pac. 240; Kimbrell v. State, 7 Okla. Cr. 354, 123 Pac. 1027; Williams v. State, 16 Okla. Cr. 54, 180 Pac. 559.

There are other errors assigned which possess merit, but the view we take of this record it is not necessary to consider them.

For the reason stated, the case is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    CLYDE BOTTOMS v. STATE.
    No. A-7959.
    Sept. 25, 1931.
    (3 Pac. [2d] 458.)
    Darnell & LaRue, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of transporting intoxicating liquor, and was sentenced to pay a fine of |200 and to be imprisoned in the county jail for 60 days, and has appealed.

The testimony on bebalf of tbe state tends to show that tbe defendant was driving along tbe public highway, and tbe officers followed, him; after they bad followed him for some time, tbe officers claim tbe defendant stopped bis car and set a carton by tbe side of tbe road and drove on; the officers followed him for some distance and arrested him; at the time of tbe arrest the officers bad no knowledge as to what was in tbe carton claimed by them to have been put out of tbe car by the defendant. Tbe officers claim that after they took tbe defendant back to where tbe carton was they examined it and it contained whisky.

The defendant denied any knowledge of the whisky and stated positively be did not put tbe whisky out of bis car. Several witnesses testified in tbe defendant’s bebalf as to bis previous good character; that be had never been charged with an offense before; it was after dark when the officers followed tbe defendant, and they claim they were close enough to him to see him stop the car and put out the carton, and that he drove away before they caught up with him. The jury heard the testimony and decided the facts against the defendant. There is a conflict in the testimony, but this court will not undertake to settle the conflict. That was a question for the jury.

In view of the previous good character of the defendant and the conflict in the testimony, the judgment in this case seems to be excessive and should be modified to imprisonment in the county jail for thirty days, and a fine of $50 and costs, and as modified the judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    M. C. PRUITT v. COOPER, Judge.
    No. A-8069.
    Sept. 25, 1931.
    (3 Pac. [2d] 455.)
    Hendon & Hendon, for plaintiff.
    The Attorney General, for the State.
   CHAPPELL, J.

Petitioner filed his application in this court praying a writ of mandamus to compel Leroy G. Cooper, judge of the superior court of Pottawatomie county, to dismiss a certain cause then pending against the defendant in said court, for the reason that the same had not been brought to trial within the time required by law.

It appearing to the court that since the filing of this application said cause has been dismissed by the county attorney, the question is moot. The application is therefore dismissed.

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


text:
    HUGH WILSON et al. v. STATE.
    No. A-8073.
    Sept. 25, 1931.
    (3 Pac. [2d] 455.)

      Wilkinson & Hudson, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were informed against in the county court of Pittsburg county in an information charging, in the first count, possession of a still, in the second count, possession of intoxicating liquor, and, in the third count, with setting up a distillery in the state of Oklahoma for the purpose of manufacturing whisky, and were by a jury found guilty on the first count and their punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days. They were found guilty upon the second count and their punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days, and were found not guilty by the jury upon the third count.

No demurrer was filed to this information and no question raised upon the verdicts.

It appears from the record that in a raid made upon certain premises a still Avas found in the possession of Eastman Amos, Alex Beck, John Burris, and Monroe Francis; that these parties were charged with the possession of a still, entered their pleas of • guilty, paid their fines, and served the time adjudged against them in the county jail; that thereafter the county attorney filed an information against the defendants in the case at bar, charging them AA'ith the OAvnership and possession of this still. The only evidence tending to connect the defendants with the commission of the offense was given by Eastman Amos, an accomplice, wbo testified that the defendants were the owners of the still and that he was merely working by the day for them. The only other evidence offered by the state was that the defendants were in McAlester in attendance on the court and conversing with the defendants Eastman Amos, Alex Beck, John Burris, and Monroe Francis, just prior to their plea of guilty of possession of a still.

Section 2701, C. O. S. 1921, prohibits the conviction of a defendant upon the testimony of an accomplice, unless he is corroborated by other evidence that tends to connect the defendant with the commission of the offense.

For the reasons stated, the cause is reversed.

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


author: PER CURIAM.

text:
    MILES TIDWELL v. STATE.
    No. A-8079.
    Sept. 25, 1931.
    (3 Pac. [2d] 454.)
    Darnell & LaRue, 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 Washita county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that certain officers went to the residence of defendant, saw him coming from the orchard with something in his hands. He stepped behind the house, and then came out without the object he was carrying. The officers made a search and found a half gallon jar of whisky in a cream can behind the house. Proper objection was made to the admission of this testimony on the ground that it was obtained by an unlawful search at the residence of defendant without a search warrant. The objection should have been sustained. The evidence was incompetent under article 2, § 30, State Const.

The case is reversed.


text:
    TED FUTRELL v. STATE.
    No. A-8055.
    Sept. 25, 1931.
    (3 Pac. [2d] 1117.)
    M. F. Hudson, 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 unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 30 days.

The evidence of the state was that the officers had a search warrant for the premises of one Jack Herron, who lived about a mile from the home of defendant; that, after searching Herron’s premises, they went around through the pasture and woodlands of defendant and about a quarter of a mile from his house found a barrel containing about 55 gallons of whisky, located near a still site; that this barrel was painted black and was within the boundaries of the premises where defendant lived; that they had no search Avarrant for these premises; that, after finding the barrel of whisky, they went up to defendant’s house and arrested him; that in the yard at defendant’s home Avere barrels and kegs similar to the one found in the field and painted black.

Defendant did not take the witness stand and offered no evidence.

The only error complained of is that this evidence is insufficient to support the verdict of the jury.

There is no merit in this contention. The cause is therefore affirmed.

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


text:
    J. ARTHUR KELTNER v. STATE.
    No. A-7949.
    Sept. 5, 1931.
    Rehearing- Withdrawn Oct. 1, 1931.
    (3 Pac. [2d] 451.)

      Sigler & Jackson, 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 Johnston 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 50 years.

The evidence of the state, supported by the dying declaration of the deceased, was that the killing was murder. The evidence of the defendant was that the killing was done in his self-defense. The issues thus raised were submitted to the jury and settled by them in favor of the state by finding the defendant guilty of manslaughter in the first degree.

It is first contended by defendant that the trial court erred in excluding from the consideration of the jury evidence offered by the defendant of prior acts of violence on the part of the deceased.

This assignment specifically relates to the offer of proof made while the witness James (Buck) Ayers, son of the codefendant Robert Ayers, was on the witness stand in behalf of this defendant. The relative portion of this is as follows:

“Q. Did you see Ira Sanson there? A. Yes, sir. Q. What was Ira Sanson doing? Objection by Mr. Brown: Incompetent, irrelevant and immaterial, and states that if he did talk to anybody else it would not be competent in this trial. By the Court: Sustained. Exception. Mr. Jackson: The defendant offers to show by this witness and T. A. Swindle that when the witness left the store T. A. Swindle was walking behind him and they approached near where Ed. Jackson lived and Ira San-son came out of the house and threw a gun on him and the witness said ‘This is T. A. Swindle’ and Sanson put up the gun and said ‘He thought it was Ed. Jackson.’ ”

No offer of proof of other acts of violence on the part of the deceased was made. T. A. Swindle, the person referred to in the offer above quoted, was never introduced as a witness in behalf of defendant.

In the first place the offer was not proof of any specific act of violence on the part of the deceased. Furthermore, the testimony of the defendant precludes any injury to him from the refusal of the trial court to permit the witness to testify as set out in the offer.

Defendant testified in chief specifically as to these matters.

The trial court therefore committed no error prejudicial to the defendant in refusing to allow the witness to testify as offered by defendant’s counsel.

Defendant contends that the trial court erred in permitting the state to1 cross-examine the witness Robert Ayers on immaterial matter, and in admitting statements of Ayers made to the officers .out of -the presence of defendant. The defendant was asked on cross-examination:

“Q. Didn’t he (the sheriff) tell you that one of the things was that pointed to your guilt was that this man was killed with your gun? By Mr. Sigler: Objected to, incompetent, irrelevant and immaterial. By the Court: Overruled. Exception. A. No, sir. Q. And didn’t you tell him in response to that, ‘Couldn’t he have gotten it out of my car without my knowing anything about it?’ A. No, sir. Q. Did you tell the sheriff whose gun that was? A. No, sir. Q. And didn’t you tell Mr. Hunt, the sheriff, on this same trip from Atoka to Durant, that if your wife had agreed to tell Ira what you wanted her to about staying away, that there would not have been any trouble at the bridge? A. I don’t think so, but I might have, if she had talked to him I wouldn’t have talked to him and probably wouldn’t have had a conversation with him.”

The impeachment of the witness is shown by the testimony of Fred Hunt, the sheriff of Johnston county:

“Q. Did you ever accompany Mr. Robert Ayers from Atoka to Durant? A. I did. Q. Anybody with you? A. The county attorney was. Q. Did you have a conversation with Mr. Robert Ayers on that occasion? A. I did. Q. And in response to bis request to tell him. some of the things that caused you to have him arrested, I will ask you if you didn’t tell him that one of the things that caused his arrest was that this boy Avas killed with his gun, to which he replied that ‘Couldn’t Mr. Keltner have gotten this gun without my knowing anything about it’? By Mr. Sigler: Objected to for the same reason. By the Court: Overruled. Exception. A. In substance, yes. I didn’t use the word Keltner but he acknowledged it was his gun.”

In Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, 130, this court said:

“When a Avitness, though on cross-examination, gives adverse testimony to the person cross-examining, showing his interest or bias in the case, or lack of it, such person is not bound to accept the statements of such witness as conclusive, but is entitled to- offer proof contradicting such witness and tending to establish the existence of facts to the contrary.”

In the following cases this court has held that impeachment to show bias and interest of the witness is proper: Felice v. State, 18 Okla. Cr. 313, 194 Pac. 251; Beason v. State, 18 Okla. Cr. 388, 195 Pac. 792; Stanfield v. State, 30 Okla. Cr. 82, 235 Pac. 256.

The evidence complained of was proper for impeachment as tending to show bias and prejudice of the witness as a result of the prosecution.

Defendant next contends that the trial court erred in permitting the state to' interrogate the witness Robert Ayers on cross-examination relative to immaterial matters pertaining to alleged violation of the liquor laws by the said Robert Ayers.

Robert Ayers was jointly charged with the defendant in the commission of this crime, but was not then upon trial. He was offered as a witness by tbe defendant. The substance of the evidence complained of was that deceased had worked for witness 12 or 15 years; that during part of that time he had been making whisky for witness; that deceased had served one federal sentence in jail for making and selling, whisky; that when deceased was caught by the federal authorities he was making whisky for the witness; that the still deceased was operating belonged to the witness, and that deceased had a 30-day jail sentence hanging over him at the time of the commission of the homicide.

This cross-examination was proper, in that it might tend to show motive on the part of the codefendant, Ayers. While proof of motive is not indispensable, it is always considered proper. McClendon v. State, 19 Okla. Cr. 382, 200 Pac. 464.

It is next contended that the trial court erred in compelling the wife of the codefendant Ayers to testify against this defendant on a separate trial, over his objection.

Section 2699, C. O. S. 1921, has reference only to husbands and wives as witnesses for or against each other. Since Mrs. Ayers was not the wife of this defendant, this statute has no application to' the situation here presented. The only case cited by defendant is Howard v. State, 94 Ga. 587, 20 S. E. 426, in which the Supreme Court of Georgia held that the husband or wife would not be compelled to testify against a joint defendant, even if there was a severance on the trial, where the offense charged required the joint act of the persons indicted in order for either party to be guilty. That is not the situation in this case, because either defendant could have been guilty of this murder, irrespective of the guilt of the other defendant.

In State v. Rainsbarger, 71 Iowa, 746, 31 N. W. 865, the Supreme Court of Iowa had this question under consideration and there said:

' “A woman against whose husband an indictment is pending is a competent witness for the state on the trial of an indictment of another person for the same offense; and Code Iowa, §§ 3641, 3642, providing that neither a husband nor wife shall in any case be a witness against the other, does not apply.”

In Rivers v. State, 118 Ga. 42, 44 S. E. 859, the Supreme Court of that state said:

“Where a married woman is jointly indicted with another, and there is a joint trial, the husband is incompetent as a witness for or against her. Where there has been a severance, and the offense does not require the joint act of the persons indicated, he is not incompetent to- testify on a separate trial of the other defendant.”

To the same effect is Munyon v. State, 62 N. J. Law, 1, 42 A. 577.

Under our statute and the authorities above cited, Mrs. Ayers was a competent witness in the trial of the defendant.

Defendant next contends that the trial court erred in giving instruction No. 8, on manslaughter in the first degree.

In this connection counsel for defendant contends that the defendant is either guilty of murder or nothing, and that the instruction on manslaughter in the first degree is unauthorized by the evidence.

In Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879, this court said:

“Where the defendant is charged with murder, an instruction defining manslaughter in the first degree is proper where the evidence on both sides is conflicting concerning their motives, their aggressiveness, and elements of self-defense.”

In Lazenby v. State, 18 Okla. Cr. 83, 192 Pac. 1103, this court said:

“In a prosecution for murder when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.” Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Willis v. State, 25 Okla. Cr. 259, 220 Pac. 72; Nowabbi v. State, 36 Okla. Cr. 97, 252 Pac. 442.

The error, if any, in submitting the question of manslaughter in the first degree, being in favor of the defendant, he cannot he heard to complain.

Defendant next contends that the trial court erred in refusing to reopen the case on the part of the defendant after he had announced the closing thereof, in order to permit the defendant to introduce in evidence the clothing worn by the deceased at the time of the commission of the homicide.

This court has repeatedly held that the matter of permitting a case to be reopened after the same has been closed, for the purpose of permitting a party to introduce additional evidence, is a matter discretionary with the trial judge.

Defendant next complains that the court erred in reprimanding his counsel in the presence of the jury.

A careful examination of the record discloses that this contention is without any substantial merit. The statement of the court did not amount to a reprimand.

Defendant finally complains that the court erred in admitting as rebuttal testimony that which was properly testimony in chief.

The record discloses that the rebuttal evidence was proper by reason of the insinuations and testimony injected into this case by the defendant himself. He introduced the witness Oma Chance, whose testimony indicated an intimacy between Mrs. Jackson and the deceased. Having introduced the issue, he cannot complain that the state offered evidence to rebut any ill effect this evidence might have upon the jury.

Defendant also complains of the testimony of Boyd Teel, Bertha Essery, C. E. Walker, C. W. Trotter, and Fred Hunt. All of this evidence was proper on rebuttal.

While the errors complained of by the defendant are numerous and are ably presented in the brief of counsel, none of them are of sufficient importance to require a reversal of the case.

In cases of this character, hotly contested, more or less minor error creeps into the record. We have carefully examined the record and the briefs of counsel and are of the opinion that the defendant had a fair trial and is undoubtedly guilty as found by the jury.

For the reasons stated, the cause is affirmed.

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


text:
    WILL ROSE et al. v. STATE.
    No. A-8092.
    June 12, 1931.
    Rehearing Denied Oct. 1, 1931.
    (3 Pac. [2d] 251.)
    Claude A. Niles, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McIntosh county of having illegal possession of intoxicating liquor and Avere each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was tried in November, 1930, and the appeal was filed in this court in February, 1931. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record and find the evidence sufficient from which the jury might reasonably find the defendants guilty. No fundamental or jurisdictional error is apparent.

The case is affirmed.

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


text:
    C. P. JACKSON v. STATE.
    No. A-8076.
    Aug. 28, 1931.
    Rehearing Denied Oct. 1, 1931.
    (3 Pac. [2d] 249.)
    Darnell & LaRue and Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county on a charge of having the possession of mash fit for distillation, and was sentenced to pay a fine of $150 and to serve 30 days in the county jail.

Defendant is charged with permitting another to keep upon premises owned by him and under his control mash fit for distillation, as defined by section 6, c. 42, Session Laws 1923-24.

At the time charged, certain officers with a search warrant went to the farm of defendant, made a. search, and in a canyon in the woodlands about 800 yards from the residence found 9 barrels of mash and other paraphernalia. They talked to defendant at the time, and testify he told them he had an interest in the mash. Defendant testified that he saw “a dark complected stranger” on the premises a few days before the officers were there, and at the time discovered the mash and other stuff; that he owned the land where it was, but had leased it to another.

It is argued the information is insufficient in failing to allege a description of the premises on which the mash was kept. It would have been better pleading for the information to have alleged the location of the premises, but the failure to do so could not have prejudiced defendant. He owned the land where the mash was found, and under the provisions of section 2555, Comp. St. 1921, it is sufficiently definite. Complaint is made that the information is insufficient on the further ground that it does not allege the alcoholic content of the mash or that it was capable of being used as a beverage. Section 6, c. 42, Session Laws 1923-24, is not directed against the possession of intoxicating liquor, but to the possession of ingredients or materials for manufacture of intoxicating liquor, enumerating, among these, “mash, wort or wash fit for distillation.” It is not necessary that mash contain any alcoholic content, but merely that it be “fit for distillation” and prepared with the intent to violate the prohibitory laws. The case of Cox v. State, 30 Okla. Or. 413, 236 Pac. 436, has no application to this statute, but applied to a charge under section 7002, Comp. St. 1921. The offense there charged was committed before the law of 1923-24 became effective.

Some argument is made that there is a variance in the proof, since the testimony does not disclose that defendant was the owner of the mash, but at most had only an interest in it. This contention is without merit. An owner of any interest in the mash, if the other essentials exist, is as guilty as if he were the sole owner.

The case is affirmed.

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


text:
    BEN WILES v. STATE.
    No. A-8033.
    Aug. 28, 1931.
    Rehearing Denied Oct. 1, 1931.
    (3 Pac. [2d] 245.)
    William M. Thomas and J. S. Campbell, Jr., for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ottawa county of burglary in the second degree, and was sentenced to serve a term of two years in' the state penitentiary.

At the time charged a brooder house within the cur-tilage of the residence of one Pasley was burglarized and some wild animal hides stolen. Defendant knew the location of the brooder house, that the hides were kept therein. On the night the same were stolen, defendant sold them to a produce dealer at the town of Peoria. This was on Saturday night. It was talked about the neighborhood that Pasley’s hides had been stolen, and on the Monday following defendant went to the dealer at Peoria, recovered the hides, took them to Miami, and sold them to a fur dealer there. Defendant testified he bought the furs in question on the night they were stolen about 10 or 10:30 o’clock from a stranger on the highway, a “tall slender kind of a looking fellow,” whom he had never seen before and had never seen since. This was evidently a reappearance of that mysterious stranger who, like the “Wandering Jew,” at intervals and at any time of day or night, comes unheralded out of the nowhere into the where. This stranger usually travels through the country selling recently stolen property to gullible but innocent individuals. He is a persistent as well as a pernicious cuss and has given no end of trouble to the law enforcing authorities. Formerly he traveled much afoot. Later, he often rode a stolen horse which he would readily sell to some unsuspecting person who was soon caught in possession. In the instant case he was traveling by automobile with the hides in the turtleback. It has been his custom after a single transaction to vanish into thin air, to reappear six months or a year later under similar circumstances in some far removed community with other stolen property for sale. Notwithstanding this very reasonable explanation of his possession of this stolen property by defendant, the jury found him guilty. We can account for this verdict in no way other than that they did not believe this stranger was a creature in the flesh, but, on the contrary, believed him a figment of the fertile ' imagination of defendant. .Since the jury is to determine the credibility of the witnesses and the weight and value of the evidence, we are constrained to the view that their conclusion is reasonable.

The first contention is that the information is insufficient in failing to allege the ownership of the building burglarized. The information is poorly drawn, but it does allege the building was within the curtilage of the dwelling of Pasley. It is barely sufficient under the requirements of section 2555, Comp. St. 1921, and the numerous decisions of this court applying this statute.

It is argued the denial of defendant’s application for a continuance is error. The application was based on the absence of one Farrier, who, it is alleged, was with defendant at the time of the burglary and if present would testify to a complete alibi, in substance that he Avas present when defendant bought the hides; that although the witness resides in the county, he cannot be found and defendant believes he has run away. The case was set and the trial had May 24. Defendant did not issue a subpoena for the witness Farrier until May 23. The granting or refusing of a continuance is in the sound discretion of the trial court. It should not be granted unless diligence to procure the witness has been exercised. It is not diligence for an accused to wait until just before the trial to procure process for his witnesses. Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544.

Complaint is next made that the court erred in refusing defendant’s offer to prove the hides stolen were those of wild animals illegally caught during the closed season and away from the premises of the prosecuting, witness. That is, that they were contraband under sections 3 and 7, chap. 35, Session Laws 1927. Even if it he admitted that furs taken unlawfully are contraband and the prosecuting witness had no right of property therein, the decisions are practically uniform that nevertheless property designated as contraband, possessing the inherent character of personal property, retains its character as property and may be the subject-matter of robbery or larceny, the same as any other property; that the extinguishing of property rights in contraband things applies between the state and the possessor and not to third persons, and that crime against such property cannot be justified on such ground. Arner et al. v. State, 19 Okla. Cr. 23, 197 Pac. 710; Lout v. State, 34 Okla. Cr. 73, 244 Pac. 818.

Upon a consideration of the entire record, no material error is made to appear.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., ab sent, not participating.


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    LELAN PEDAN v. STATE.
    No. A-8038.
    Sept. 12, 1931.
    Rehearing Denied Oct. 1, 1931.
    (3 Pac. [2d] 1118.)

      George Womack and J. H. Long, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

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

The evidence of the state was that a controversy had arisen between defendant and the deceased and their wives and some other parties; that defendant ran into the house and got a gun and swore, saying he would kill the deceased; that Mrs. Heffley grabbed him and that he dragged her through the door, and that Callie Pedan met them at the door and grabbed him and they both tried to keep him from using the gun to kill any one; that defendant got out on the porch and that four shots were fired from the gun and that one or more of these shots caused the death of deceased.

Defendant claimed that the gun was accidentally fired.

On the 24th day of June, 1931, this case was orally argued, but no briefs have been filed.

A careful examination of the record discloses no fundamental error, and that the evidence is sufficient to support the verdict of the jury.

The cause is therefore affirmed.

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


text:
    Ex parte ETHEL LYLES.
    No. A-8262.
    Oct. 2, 1931.
    (3 Pac. [2d] 912.)
    Moman Pruiett and Wes Croy, for petitioner.
    Lewis R. Morris, Co. Atty., and Mart Brown, Asst. Co. Atty., for respondent.
   DAVENPORT, P. J.

This is an original proceeding in habeas corpus, in which petitioner alleges she is unlawfully imprisoned and restrained of her liberty in the county jail of Oklahoma county by Stanley Rogers, sheriff of said county. It is urged by the petitioner that, when she was sentenced by the trial court, the trial court did not include in its sentence that, when petitioner had served her jail term, she would have to be confined in the county jail at the rate of $1 per day until the costs taxed against her were paid.

¡Section 6332, C. O. S. 1921, provides in part as follows :

“All costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of |1 per day of such fees and costs, or fine, or both.”

This section has been construed by this court in several cases. In Ex parte Clemmons, 27 Okla. Or. 50, 225 Pac. 184, 185, this court, in discussing section 6832, C. O. S. 1921, said:

“A fair construction of this statute impels us to hold that since its enactment its provisions relating to fines and costs automatically become a part of every criminal judgment imposing a fine or imprisonment, or both, and that a failure to make a recital in the judgment that the defendant be held until the fine and costs are satisfied in the manner provided by law will not on habeas corpus relieve the person so convicted from satisfying the fine and costs in the manner designated by this statute.” Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284.

Section 6332, supra, provides how the fine and costs shall be satisfied. They may be satisfied by payment in money of the amount named, but, if the person fails to make such payment, the statute directs that the fine and costs shall be enforced by imprisonment until the same shall be satisfied at the rate of fl per day. The defendant, by paying the fine and costs, if any are assessed, can at any time secure his release.

Following the ruling in Ex parte Clemmons, supra, we hold that to all intent and purposes the fine and cost provision of section 6332, supra, automatically becomes a part of the judgment without any specific recital to that effect. However, it is better practice to recite in the judgment that the defendant stands committed until the fine and costs are' paid at the rate of $1 per day.

The application of the petitioner to be released upon habeas corpus is denied.

EDWARDS and CHAPPELL, JJ., concur.


text:
    DAVE NOWLIN v. STATE.
    No. A-7603.
    Oct. 2, 1931.
    (1 Pac. [2d] 916.)

      Anglin & .Stevenson and Billingsley & Stanley, 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 Seminole county of manslaughter in the first degree, and was sentenced to serve a term of 5 years in the state penitentiary.

At the time of the homicide, defendant was a special deputy sheriff of Seminole county. With some other officers he at night went to' the Carter Camp, a few miles north of Seminole, to a tent where Hayden, Story, and Bottoms were at the time drinking beer which Bottoms had brought there. The officers arrested them and took them outside the tent. Deceased started to run, and defendant pursued him, threw a searchlight on his back, and shot him as he ran. The testimony may be condensed as follows:

“Thurman .Story testified that he saw defendant shoot the deceased; that at that time deceased was running away from defendant and was about 30 steps east of him when the shot was fired.
“L. A. Hayden testified: I looked towards the ice house and Bottoms was standing with his hands folded, the other officers said: ‘See what he has in his hand’ and Nowlin looked in his hand and saw that he didn’t have anything and he looked up and Bottoms broke to run and he jumped and took right after Bottoms. Nowlin had a flash light in one hand and drew a pistol as he pursued Bottoms.
“A. J. Mahaffey testified: The Bottoms boy broke and run around the ice house; ran east; saw Dave Nowlin fire shot; boy about 30 or 40 feet from him when he shot. Bottoms fell when the shot fired.
“W. T. Mahaffey testified that he saw Dave Nowlin and Bottoms at the time Nowlin shot him. Dave Nowlin was south of the ice house and the boy was running east. The boy fell when he was shot. They were about 30 feet apart when the shot fired.
“Dr. W. E. Jones testified he examined the body of Bottoms and probed the wounds; that the shot entered his body slightly to the left of his spine. Saw no powder burns.”

Defendant admits fixing the fatal shot. His testimony in substance is that, after Hayden, Story, and Bottoms were outside the tent and defendant was searching Bottoms, they got into- a scuffle, and Bottoms attempted to strike defendant with something he took to be a knife, and that he shot in self-defense. There were several eyewitnesses, and, except the defendant, all testify in substance that defendant shot deceased while he was running from him.

The first assignment is that the coux*t erred in permitting the witness Anna Nusko, since her name was not served on the defendant two days before the trial as required by article 2, § 20, State Const., to testify in rebuttal concerning matters which were a part of the case in chief. This witness was first called in chief. Objection was made that her name was not indorsed on the information. The county attorney then stated he had served the list of the witnesses with their post office addresses. Defendant’s counsel then objected that they had not been served with the name of this witness. Neither side produced the officer’s return or the list of the names served, and no one testified the name of this witness was served or was not served. The court then directed that she be called in rebuttal, which was done, and the witness testified. This witness was a trained nurse, having had experience in the hospital service during the World War, and attended deceased at the hospital after he was shot. She testified in inference to the location and nature of the wounds on the body of deceased. She was also one of the witnesses who testified at the preliminary. Her testimony was cumulative. If the name of the witness was served, the fact that her name was not indorsed on the information would be immaterial. Manning v. State, 7 Okla. Or. 367, 123 Pac. 1029; Rich et al. v. State, 51 Okla. Cr. 418, 1 Pac. (2d) 805. There should have been a showing made so the court could determine whether or not the name of this witness had been served. The burden is on one who asserts error to show by the record that the error was committed.

The constitutional provision that in capital cases the names of the witnesses to be used in chief with their post office addresses shall be served on the accused at least two days before the trial is not to be evaded by withholding the names of witnesses who should be used in chief and using them in rebuttal, but the order of trial fixed by section 2687, Comp. Stat. 1921, must be observed. Nor will the state be permitted to rehash in rebuttal the testimony in chief by using witnesses which should have been called in chief. Hardesty v. People, 52 Colo. 450, 121 Pac. 1023; State v. Hunsaker, 16 Or. 497, 19 Pac. 605. The testimony of this witness, under a strict application of the rule, should have been introduced in chief. The rule is not so important where the witness testified in the preliminary or where his testimony is cumulative. The trial court is not divested of all discretion by reason of the constitutional and statutory provisions. When the state proved the commission of the homicide by defendant, under circumstances showing that it was not justifiable or excusable, the burden of proving mitigation, justification, or excuse then devolved on him. Section 2719, Comp. Stat. 1921. Defendant sought to justify the homicide by attempting to show the killing was in self-defense, to prevent apparent danger of great bodily harm to himself at the hands of deceased. The state is not to' be precluded from showing in rebuttal that the claimed attack on defendant did not take place, although the testimony might have been introduced in chief in the first instance. Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599.

Complaint is made of misconduct of the county attorney in asking incompetent and prejudicial questions in cross-examination and by prejudicial statements in his closing argument. Under this assignment several matters are stressed: Frank Grail, a deputy sheriff, who accompanied defendant at the time of the homicide, was asked on cross-examination if there had not been numerous killings by officers while he had been an investigator. An objection was made, then withdrawn. He was then asked touching his relations with A1 Hawkins, a witness for defendant. The purport of these questions apparently was to show that the witness and Hawkins and defendant had seized intoxicating liquor on their raids and secreted it for their own purposes and to like improper conduct of the witness as an officer. Some of the questions go' beyond proper limits. The court sustained objections to most of these questions. The connection of the witness with defendant at the time the homicide occurred and his association and relationship with him generally, within reasonable limits, was a proper subject of inquiry. It would go to his interest, bias, prejudice, or credibility. Questions for this purpose generally are collateral to the main issue; that is, the homicide and its character as being lawful or unlawful. But cross-examination tending to bring out the interest, animus, bias, or prejudice of a witness is not regarded as collateral. Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132; Pryor v. State, 37 Okla. Cr. 102, 257 Pac. 335; Brixey v. State, 42 Okla. Cr. 213, 275 Pac. 655. On the other hand, a county attorney may not persistently ask incompetent questions and thus get before the jury by insinuation or innuendo incompetent matters. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Rogers v. State, 8 Okla. Cr. 226, 127 Pac. 365; Scott et ux. v. State, 13 Okla. Or. 225, 163 Pae. 553. The line of demarcation is sometimes extremely close and is largely a matter of discretion with the trial court. When an appellant contends that this discretion has been abused, the burden is on him. Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609.

Upon an examination and consideration of the entire record, we are convinced that defendant shot deceased because of his attempt to escape by fleeing, It should be unnecessary to repeat what has often been held by this court, that an officer has no right to- shoot at a person arrested or sought to be arrested for a misdemeanor when such person flees. If he does so and kills the person shot at, he is at least guilty of manslaughter.

Finding no reversible error, the case is affirmed.

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


text:
    A. N. DYER v. STATE.
    No. A-8149.
    Oct. 2, 1931.
    (3 Pac. [2d] 919.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of receiving property, knowing the same to have been stolen, and his punishment fixed at a fine of |50; from which judgment the defendant has appealed by transcript.

The only question raised by the defendant is that the court erred in overruling the defendant’s demurrer to the information. An information is good if it sufficiently advises the defendant of the charge against him so he can prepare for trial.

The information stated facts sufficient to advise the defendant of the charge against him, and his demurrer was properly overruled.

The case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    JESSE MALCOLM v. STATE.
    No. A-8156.
    Oct. 2, 1931.
    (3 Pac. [2d] 920.)
    L. H. Woodyard, 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 Payne county of maintaining a place where intoxicating liquor was received and kept for the purpose of disposing of the same contrary to' the statute, and his punishment fixed hy the jury at a fine of |225 and imprisonment in the county jail for 90 days.

The evidence of the state was that defendant had these premises rented and had occupied them for approximately two years; that the officers had a search warrant and on going to the premises found no one at the house; that they posted a copy of the search warrant on the door and proceeded to search the house and barn and outbuildings, but found nothing; that one of the officers followed a path leading from the barn down in the timber; that he heard persons talking, and, on getting closer, saw the defendant and two other negroes busy around a still; that this officer went back and got the other officers and when they got back to the still defendant and one of the other negroes were gone; that they found a still, a ten-gallon keg. of whisky, a five-gallon keg about half full, one gallon jug full and six barrels of mash; that these premises had been previously raided and intoxicating liquor found. Each of the officers testified, without objection on the part of defendant, that he was acquainted with the reputation of the place as being a place where intoxicating liquors were made and kept for sale, and that the reputation was bad.

Defendant contends, first, that- this evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

Defendant argues in his brief that the court erred in admitting evidence of the reputation of the place.

The record discloses that the defendant made no objection to the introduction of this evidence at the trial, and does not raise the question of the admissibility of the same in his petition in error in this court.

The state may not show the reputation of a place over the objection of the defendant without first showing that the place is a place of public resort. The defendant may not permit the introduction of this class of evidence without objection and speculate on what the answers may be and when the answers are unfavorable to him, still fail to object or move the court to take the evidence from the jury, and, without any allegation in his petition in error that the evidence was inadmissible, raise any question thereof in this court.

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

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


text:
    DORA BROWN v. STATE.
    No. A-8178.
    Oct. 2, 1931.
    (3 Pac. [2d] 1116.)
    Billingsley & Stanley, 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 Seminole county of selling narcotics, and was sentenced to serve a term of three years in the state penitentiary.

The testimony is undisputed that at the time charged defendant sold morphine as alleged in the information. She did not take the stand and offered no testimony. Judgment was entered on December 16, 1930, and the appeal was lodged in this court in June, 1931. No briefs in support of the appeal have been filed. An examination of the record discloses no material error.

The case is affirmed.


text:
    JOHN FIELDS v. STATE.
    No. A-8148.
    Oct. 2, 1931.
    (3 Pac. [2d] 746.)

      Joe ,S. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted in the county court of Okmulgee county on a charge of unlawful possession of intoxicating liquor, and was sentenced to serve 90 days in the county jail and to pay a fine of $250 and costs of the prosecution, and appeals.

The petition in error and case-made was filed in this court on May 8, 1931. No further appearance has been made by the plaintiff in error, nor any further extension of time asked to file brief in support of the assignment of errors.

Where no brief is filed and no personal appearance made, this court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record, and find that the information properly charged an offense; that defendant was accorded a fair and impartial trial; that no fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    RAY DONAHUE v. STATE.
    No. A-8150.
    Oct. 2, 1931.
    (3 Pac. [2d] 746.)

      Billingsley & Stanley, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county of the crime of maiming, and his punishment fixed by the court at imprisonment in the state penitentiary at Granite for seven years.

The evidence of the state was that defendant attended a country dance some distance from his home; that he had been drinking; that he became incensed at the way the dance was being run, tore his shirt off, called everybody sons of bitches, and some witnesses testified he said he had just got out of the penitentiary and was ready to go back; that he broke up the dance; that Jim Murphy was attending this dance and acting as caller; that he stepped over to defendant and tried to quiet him and keep him from breaking up the dance; that an altercation began between them, which resulted in a fight; that Murphy struck the first blow; that they clinched, and some of the men pushed them out of the house; that there was a step down outside of the door, and that both parties fell; that Murphy hit his head on something, which rendered him unconscious; that defendant landed on top of him, and, without any interference from the crowd, pounded the unconscious form of Murphy, chewing one of his fingers and scratching his eyes either with his fingers or with some sharp instrument; that as a result of this injury to his eyes Murphy became totally blind. The doctor in charge of the sanitarium where Murphy was kept for quite a while testified that the injury to his eyes could not have been produced by blows from the fist, but that both of his eyeballs had been scratched by finger nails or some sharp instrument.

Defendant admitted the fight, but claimed it was in his self-defense; he denied that he had poked his fingers or anything else in Mnrphy’s eyes.

Defendant complains that the court erred in giving instructions No. 9 and 12, because they placed the burden upon the defendant to satisfy the jury that he acted in his necessary self-defense. This objection is well taken. It is only necessary that the defendant raise a reasonable doubt on this issue.

Defendant further complains that the court erred in refusing to give his requested instruction on self-defense. The question of who was the aggressor and whether the defendant used more force than was necessary were issues of fact to be determined by the jury. The requested instruction being in proper form, it was error for the trial court to refuse to give the same.

We are reluctant to reverse a case of this character. This case ought to be tried again under proper instructions, and, if the jury then finds defendant guilty, punishment adequate to the offense should be meted out.

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

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


text:
    BILL DAY v. STATE.
    No. A-8192.
    Oct. 2, 1931.
    (5 Pac. [2d] 402.)

      Walter Morris, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having in his possession two gallons and one pint of whisky, and was sentenced to pay a fine of $100 and be imprisoned in the county jail for 60 days; and appeals.

The petition in error with case-made was not filed in this court until June 20, 1931, eighty-one days after the rendition of the judgment in the trial court. This being a misdemeanor case, the statute requires that the case be filed in this court in 60 days after the rendition of the judgment, unless a further extension of time is granted by the trial court. An examination of the record shows that the defendant was sentenced on the 30th day of March, 1931, and was given 40 days to make and serve a case-made. On the 25th day of April, an order was entered by the court as follows:

“It having been made to appear to the court, and for good cause a case-made cannot be made and prepared within the date heretofore allowed, and for good cause shown it is hereby ordered, considered and adjudged, that the time heretofore given the defendant in which to make and serve a case-made is hereby extended for 40 days from this date, and ten days additional thereto be allowed the state to suggest amendments to the case-made so1 served.
“It is further ordered that the defendants above named have three days in addition to the above time allowed him in which to file his appeal in the Criminal Court of Appeals of the state of Oklahoma”

—making the total time for the defendant to file his case-made in this court from April 25, 1931, of 53 days. Section 2808, C. O. S. 1921, provides:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.” Jones v. State, 50 Okla. Cr. 437, 298 Pac. 1053; Swalley v. State, 52 Okla. Cr. -, 2 Pac. (2d) 281, and Allen v. State, 52 Okla. Cr. —, 5 Pac. (2d) 183.

In this case it is apparent that the petition in error with case-made attached was not lodged in this court within the time allowed by the court; therefore this court is without jurisdiction.

The appeal is dismissed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    In re ISADORE GROSKINS.
    No. A-7820.
    Oct. 10, 1931.
    (4 Pac. [2d] 120.)
    Walton, Day & Miller and Morris & Tant, for petitioner.
    J. Berry King, Atty. Gen., and John Embry, Co. Atty., (A. R. Swank, of counsel), for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus. Subsequent to the filing of this proceeding, petitioner lodged in this court his appeal from the conviction, case No. A-7991, Groskins v. State, 52 Okla. Or. 197, 4 Pac. (2d) 117. The questions involved in the appeal determine the questions raised in this case, and this case is therefore dismissed.


text:
    ED SPROUSE v. STATE.
    No. A-8143.
    Oct. 10, 1931.
    (3 Pac. [2d] 918.)
    Date Crawford and Vol Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (George H. Copeland, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of manslaughter in the second degree, and was sentenced to serve a term of two' years in the state penitentiary. At the time charged, defendant, in the night-time, drove an automobile on the highway just beyond the city limits of Ada at an excessive speed, and struck a wagon and team which had stopped at the side of the highway, where, two negroes were putting a tire on the wheel. Defendant struck the wagon and team with such force that the tongue was broken out of the wagon, the left front wheel was smashed, and one of the mules was cut open with a fender and so injured it had to be killed, and each of the negroes had both legs broken and almost severed from the body, so that it was necessary to amputate both of the legs of the injured negroes. In addition, one had a fractured skull. The negroes were taken to the hospital, and one of them, Oregon Mitchell, became insane from the effects of the injury and died. The charge is based on section 1745, Comp. St. 1921, which defines manslaughter in the second degree as the killing of one human being by the act, procurement, or culpable negligence of another, where the killing does not fall under any other definition of homicide.

It is first argued that the evidence does not sustain the judgment. Under this assignment, the contention is made that at the time of the collision the weather was extremely dry and the roads dusty, that defendant was not able to see the wagon and team in time to avoid a collision, and that he is not guilty of culpable negligence. Without reciting the evidence, we are thoroughly convinced the collision which resulted in the death of Mitchell was the result of culpable negligence on the part of defendant in driving upon the highway under the conditions shown at the excessive speed testified to.

Complaint is next made that instruction 10-A of the court’s charge is erroneous. This instruction is: “Evidence has been introduced in this case relative to the conduct of the defendant in leaving this 'community after the injury complained of; you are instructed that the flight itself is not evidence of guilt, but is a circumstance which you may consider in determining the issues in this case, and if there is any explanation of the flight, if there was any evidence of flight, you can take such explanation into consideration; and unless you are convinced that the explanation is satisfactory to you, you may take such evidence of flight, if you And there was such evidence, as an indication of guilt.”

The evidence upon this point is that it was some 30 days after the collision before defendant was apprehended at Tulsa; that during this time the sheriff had a warrant and was attempting to locate him, but was unable to do so. It is argued that the instruction assumes defendant fled. The instruction complained of is somewhat involved. In the first sentence it appears to assume that defendant fled; in the latter part it appears to leave the question to the jury. The instruction, in the form in which it appears, is erroneous, and should not have been given. Where there is evidence of flight which is denied or what appears to be a flight is explained, the court, if it instructs on the matter of flight, should be guarded in its language and not assume the conduct of accused is a flight. Robinson v. State, 8 Okla. Or. 667, 130 Pac. 121; Cox v. State, 25 Okla. Or. 252, 220 Pac. 70; Bruner v. State, 31 Okla. Or. 351, 238 Pac. 1000; People v. Jones, 160 Cal. 358, 117 Pac. 176, 177; State v. Bonning, 60 Mont. 362, 199 Pac. 274, 25 A. L. R. 879; State v. Osborne, 54 Or. 289, 103 Pac. 62, 20 Ann. Cas. 627. The instruction, while erroneous, could not have been materially prejudicial under the circumstances proven, and presents no reason for a reversal.

The case is affirmed.

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


text:
    GLENN BERRYHILL v. STATE.
    No. A-7655.
    June 12, 1931.
    Rehearing Denied Oct. 10, 1931.
    (3 Pac. [2d] 456.)
    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 of operating a confidence game, and his punishment fixed at a fine of $2,500.

The information charges the offense defined by section 1924, C. O. S. 1921. In substance it is alleged that defendant with one Forrest D. Jackson, Carl Stanley, and Joe Baker, by a fraudulent swindle and confidence game, defrauded one James J. Lindley out of the sum of $10,000. The facts shown by the record demonstrate the truth of the old adage that “truth is stranger than fiction,” and. further suggests that of the fool and his money. Briefly stated, the proof is that Lindley, the person defrauded, lived in Nevada, Mo., was a director in the bank, and had a good financial standing. He had known defendant for a number of years and had great confidence in him. They had followed the “dog races” together and had played golf together. We are supposed to take judicial notice that a golfer will not cheat a fellow golfer except possibly to forget a stroke in the rough now and then. Under the record, defendant did not live up to the ethics of the game. In August, 1928, defendant came to Lindley’s office; told him in substance that he was with a rich Indian by the name of Sims, who was worth a lot of money and was running through with it, and suggested they ought to get some of it. That if they could get Sims into a card game, he would tip Sims’ hand and they would defraud him out of some of the money. The “rich Indian” introduced as Sims was in fact Jackson, jointly charged in the case. Lindley adopted defendant’s suggestion and got into a game of poker with Jackson, alias Sims; but apparently defendant or Lindley got mixed in their tipping signals and Lindley lost $4,000. He still retained confidence in defendant, who then told him if he would go to Tulsa with them he would get a poker player who would win back this $4,000 and some more money. So defendant, Lindley, and Jackson, alias Sims, went to Tulsa together. There defendant introduced Lindley to one Carl Stanley under the name of Wright. They arranged a poker game with Jackson, alias Sims, for the next day, and secured Stanley, alias Wright, to' play for Lindley. The play began and continued until it got to where it took $10,000 for Stanley, alias Wright, to call the hand of Jackson, alias Sims. Lindley was assured by defendant and Stanley, alias Wright, that they had seen the other hand and that they held the best hand. It was agreed that the hands would be sealed and Lindley given an opportunity to get the necessary $10,000 to call Jackson, alias Sims. The hands were sealed and Lindley had the bank at Nevada wire him $10,000. The bank telegraphed the money to the Western Union, but also notified the police of Tulsa that the affair looked shady. The chief of detectives detailed some men to investigate and to warn Lindley. Lindley’s confidence in defendant remained steadfast. He got a draft and with the poker hand of Stanley, alias Wright, in his pocket put up quite a search for defendant, Jackson, alias Sims, and Stanley, alias Wright, who had scattered because of fear of the police. To make a long, story short the parties, except defendant, finally got together at a hotel at Claremore. Lindley, after some difficulty, got his draft cashed, went to the hotel where Jackson, alias Sims, the rich Indian, was playing a game with .Stanley, alias Wright; he put his money on the table and informed them there was his $10,000. Soon they arose and Jackson said, “My hand is the best,” seized the $10,000, and he and Stanley left Avith it. The gullible Lindley then departed, sadder but wiser, with his confidence in defendant at last shaken. Defendant did not testify.

Some five assignments of error are argued, but all are based on the claimed insufficiency of the evidence on the theory that Lindley was an accomplice and that there is not sufficient corroboration of his testimony. If Lind-ley Avere an accomplice, the contention would have much force, but to say he was an accomplice Avould be saying that a person can be an accomplice in a scheme to defraud himself. It often happens in this class of cases that a dupe is made to believe he is to assist in duping some one else and by some fraudulent scheme get some easy money. The fact that the person defrauded does not come into the transaction with clean hands and good motives does not excuse the real offender by whom he is duped and defrauded. The real offenders here are not to be exonerated because Lindley was willing to' go into a crooked transaction. By so agreeing he did not become an accomplice in the transaction in which he was fleeced. Since Lindley was not an accomplice, it was not necessary that his testimony be corroborated as required by section 2701, C. O. S. 1921.

It is further argued that the court erred in instruction number 7-A, which is :

“You are instructed that a conviction for the violation of any of the provisions of the statutes with reference to gambling, may be had upon the unsupported evidence of an accomplice or participant, and such accomplice or participant shall be exempt from prosecution for any offense defined in said gambling statutes about which he may be required to' testify.
“You are further instructed that any person charged with a violation of any provision of the statute relating to gambling may be convicted on the uncorroborated testimony of an accomplice, and the judgment thereon shall not be set aside or reversed by reason of the fact that such conviction was based on the testimony of an accomplice.”

Defendant’s counsel contend that the giving of this instruction is fundamental error, being based on section 1937, C. O. S. 1921, which section applies to the gambling statutes but has no application to the law against operating a confidence game, section 1924, C. O. ¡S. 1921, under which this prosecution is made, as the latter section is not a gambling statute. But as just stated, Lindley was not an accomplice and it was not necessary that his evidence be corroborated. The fact that the court indi-eated by this instruction that Lindley might be an accomplice could not have been prejudicial. It may even be considered favorable to defendant, since it suggests to the jury Lindley’s unfavorable connection with the transaction. We see no reason for interfering with the judgment of the court.

The case is affirmed.

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


text:
    JIM MOWELS v. STATE.
    No. A-8166.
    Oct. 16, 1931.
    (11 Pac. [2d] 206.)
    Shelton & Shelton and W. F. Duncan, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county of unlawful possession of whisky mash fit for distillation, and his punishment fixed by the jury at a fine of |250 and imprisonment in the county jail for 90 days.

Before the jury was impaneled, defendant filed his plea of former jeopardy, alleging that he had already been tried and convicted for an offense arising out of the same transaction and constituting the same offense, which plea was denied by the court.

The testimony of the state was that the officers had a search warrant to search the premises of Adam Weber; that in the barn on the Weber place they found defendant in possession of a still, 93 barrels of mash, and engaged in the manufacture of whisky.

Where, in the same place and at the same time and under the same search warrant the officers find defendant in possession of a still and mash and in the act of making whisky, the state may not prosecute the defendant for three separate offenses arising at the same time and out of the same transaction, over the objections of defendant.

The rule would be otherwise where the officers under the same search warrant found whisky in one place, mash in another place, and a still in another place, where the evidence of the state showed the defendant to be in possession of the things so seized. State v. Tennison, 44 Okla. Cr. 409, 281 Pac. 313.

The constitutional privilege of immunity from a second prosecution is not waived if at any time before judgment the defendant interposes his plea of former acquittal or former conviction; and where, as in the instant case, the facts are all before the court as a part of its own record in the case, and the plea of former jeopardy raises only a question of law, the constitutional right will not be construed as waived where defendant interposes a plea of former acquittal or conviction before judgment.

It was reversible error for the trial court to overrule defendant’s plea of former jeopardy.

For the reason stated, the cause is reversed.

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


text:
    JIM MOWELS v. STATE.
    No. A-8167.
    Oct. 16, 1931.
    (11 Pac. [2d] 205.)
    Shelton & Shelton and W. F. Duncan, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county of the crime of unlawful possession of a still, and his punishment fixed by the jury at a fine of f 150 and imprisonment in the county jail for 60 days.

The evidence of the state was that the officers had a search warrant for the premises of Adam Weber; that they found the defendant in possession of a still, which he was operating, 93 barrels of mash, and some whisky.

Defendant contends that the state filed four cases against him; one for unlawful possession of a whisky still, one for unlawfully manufacturing whisky, one for unlawful possession of mash; and one for unlawful possession of whisky.

The record in the case at bar does not show that any other case was filed against the defendant arising out of this transaction. The defendant filed no' plea of former jeopardy, and made no mention of former jeopardy in his motion for new trial.

In Courtney v. State, 41 Okla. Or. 30, 269 Pac. 1059, this court said:

“Constitutional immunity against twice being put in jeopardy for same offense may be waived; constitutional immunity against twice being put in jeopardy for same offense is waived, unless accused presents plea of former jeopardy (Const. art. 2, § 21).
“Special pleas of former acquittal or conviction are generally required in subsequent prosecutions; plea of former acquittal or conviction must be made, where subse quent prosecution is in different tribunal or proceeding; statute prescribing form for plea of former acquittal or conviction is not mandatory (Const. art. 2, § 21; Comp. St. 1921, §2619).”

In Sims v. State, 9 Okla. Cr. 561, 132 Pac. 508, this court said:

“The plea of former jeopardy cannot be considered by the appellate court, unless it is presented in the lower court in the manner prescribed by statute.”

Even if the contention of defendant be true that the state filed four eases against him arising out of the same transaction, no plea of former jeopardy ever having been presented to the trial court, the record presents no question for this court.

For the reasons stated, the cause is affirmed.

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


text:
    JIM MOWELS v. STATE.
    No. A-8168.
    Oct. 16, 1931.
    (11 Pac. [2d] 207.)
    Shelton & Shelton, for plaintiff in error.
    The Attorney General and Ted E. Fisher, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $800 and imprisonment in the county jail for 60 days.

The evidence of the state was that the officers had been told by Adam Weber that a still was in operation in his barn, on his farm in Blaine county; that the officers went to the place and saw the still in operation; that they found 138 gallons of whisky in half-gallon fruit jars in 23 cases; that defendant had part- of a case of whisky in front of him with some empty jars to be filled.

The defendant did not take the witness stand, and offered no evidence.

Defendant contends, first, that the court erred in overruling bis motion for a continuance. His counsel dictated into the record an unverified motion for continuance, alleging, in substance, that defendant bad been tried tbe day before and some of tbe panel bad sat on that jury and others had beard tbe evidence. Tbe court very properly overruled this motion.

It appears from the record that in tbe examination of the jurors on their voir dire all of those jurors who bad sat in tbe trial of tbe previous case or beard all of tbe evidence in tbe prior case were excused by tbe court on defendant’s challenge for cause, and that tbe jury as finally impaneled contained no juror who had beard tbe evidence offered in the former trial.

Defendant next contends that tbe court erred in overruling bis demurrer to tbe evidence of tbe state.

Defendant filed no motion to suppress tbe evidence and made no objection to tbe introduction of tbe same, except that defendant’s counsel did object that tbe exhibit offered in evidence bad not been properly identified.

Tbe evidence of tbe state being sufficient to support tbe verdict of tbe jury, and tbe errors of law complained of by the defendant being without substantial merit, tbe cause is affirmed.

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


text:
    JIM MOWELS v. STATE.
    No. A-8169.
    Oct. 16, 1931.
    (11 Pac. [2d] 207.)

      Shelton & .Shelton and W. F. Duncan, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county of the crime of unlawful manufacture of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 60 days.

Defendant has raised the question of former jeopardy. This question was determined adversely to the defendant in Mowels v. State, 52 Okla. Or. 193, 11 Pac. (2d) 205, decided at this sitting of the court, where the court.states the law in the syllabus and discusses the question in the body of the opinion.

For the reason stated, the cause is affirmed.

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