text:
    SAM GRADINGTON v. STATE.
    No. A-8909.
    Sept. 27, 1935.
    (49 Pac. [2d] 808.)
    Owen F. Renegar, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of murder and his punishment fixed at death by electrocution.

The testimony in substance shows that Marie Jones, a colored woman, on the 28th day of September, 1934, lived with her children at 837 East Noble street, Oklahoma City, Okla.; that the defendant, a colored man, lived in the same block and only two doors from the home of Marie Jones, on the same side of the street, on the date of the killing; Marie Jones had known the defendant since 1932; on the afternoon that the defendant shot and killed Alfie Jones, a daughter of Marie Jones, the defendant had been to the home of Marie Jones, and had some conversation and argument with Marie Jones and one of her sons, in which conversation and argument the record shows he used abusive language to Marie Jones; the conversation and argument seems to have been regarding Alfie Jones in which the defendant was trying to get Alfie to go to his house for immoral purposes.

The record further discloses that after the defendant left Marie Jones tried to get her son to call the officers, and he did not do so, not anticipating any further trouble; a few minutes after the defendant left the Jones home he returned, came upon the porch, and kicked or broke the door open and came in; Alfie Jones was sitting on the floor and her sister-in-law was combing her hair; when the defendant entered, he had a shotgun in his hand; Alfie jumped up and started to run and defendant shot her in the back; she entered, the dining room or kitchen and fell, dying within a few seconds. The defendant made an effort to shoot Marie Jones, but the shell hung in his gun, and he immediately left the Jones home.

The record shows he left the gun at his home and went to the county jail and surrendered, telling the county jailer he had shot the girl through the window. The next day the defendant made a complete confession to the county evidence man, admitting he shot the girl, and in detail telling the circumstances.

Marie Jones, several of her children, and a daughter-in-law testified to the entrance of the defendant in to the Jones home, and the firing of the shot that killed Alfie, and then trying to shoot Marie Jones. The defendant offered no testimony, but stood on the evidence of the state. At the close of the testimony, counsel for the defendant made the following motion: “Comes now the defendant, and moves the court for a directed verdict of not guilty, for the reason that the state has wholly failed to make out a case as charged in the information filed here.” Which motion was by the court overruled, and exceptions saved, and the defendant then rested.

The defendant has assigned six errors alleged to have been committed by the court in the trial of the case. The first assignment is: “That said court erred in overruling the motion of plaintiff in error for a new trial.”

This assignment covers all the questions raised by the ■defendant in his other assignments. The defendant in his brief stated the court erred in admitting incompetent and highly prejudicial testimony. When the state called Charles Nashert, the county jailer, he testified to statements made to him by the defendant when he came to the jail to surrender. An examination of the witness Nashert’s testimony shows the defendant came to the county jail to surrender to Nashert, and witness stated, I asked him what he had done, and he said he went up to a house and shot through a window. Counsel for the defendant objected, and asked the witness if before he asked him the question as to what he had done, “Did you tell him whatever he might say could be used against him?” Witness answered, “I do not know whether I did or not.” The question of the witness, to the defendant, as to what he had done was for the purpose of ascertaining why he desired to surrender to tbe witness. It ivas a conversation necessary for tbe jailer to learn why tbe defendant desired to surrender to him. Tbe court did not err in admitting the statement.

The defendant next complains that the court erred in admitting, over the objection of the defendant, a statement purported to be signed by Sam Gradington, the defendant, taken in the presence of C. M. Tyler, county evidence man, Bill Eads, and Clint Myers, all of whom were officers of the law, before the defendant had been permitted to consult an attorney as to his rights. The defendant insists that the admission of the written statement was highly prejudicial to his rights; it was taken from him while in a condition that was involuntary and without having talked to counsel, and the court erred in admitting the statement. The record shows that the defendant made the statement freely and voluntarily. This court has held that:

“A statement freely and voluntarily made by a defendant, otherwise competent, is not rendered incompetent by the fact that he was under arrest at the time, was not represented by counsel, and that same was made in response to questions propounded by the officers.” Jewell v. State, 41 Okla. Cr. 389, 273 Pac. 366, 367.

Before the written statement was introduced in evidence counsel for the defendant asked the witness Tyler, if he informed the defendant that his statement might be used against him in the trial of the case against him for murder and witness answered, “Yes, sir.” Witness also stated he gave the statement to the defendant to read, and that he was sure he read it to the defendant.

It is clearly shown that no inducement was offered to the defendant to make the statement; the statement which he made, and which was reduced to writing, was made voluntarily. The statement introduced and identified in evidence was signed by the defendant and sworn to- before Clara B. Kelly, notary public. The fact that the defendant was in custody when he made the statement does not render it incompetent. Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064; Carr v. State, 21 Okla. Cr. 377, 208 Pac. 275.

It is clearly shown by the record that the confession of the defendant was made by him without any threat, promise, or inducement, and the court did not err in permitting it to be introduced as evidence.

The next question discussed by the defendant is that if the testimony of the jailer and the confession were excluded, there is no competent evidence to sustain a verdict of guilty. With this contention we cannot agree. While the record clearly shows the testimony complained of by the defendant was admissible, yet the testimony of the eyewitnesses shoAvs the defendant premeditatively and in cold blood entered the home of the deceased, Alfie Jones, and without any justification killed this young girl. The testimony conclusively shows the defendant guilty of willful murder. Under the evidence in this case, the jury properly performed its duty and returned a verdict of guilty of murder, imposing the death penalty by electrocution.

It is argued by the defendant that this court has power to modify the judgment where it is excessive. That is true, but if there ever was a case where electrocution was justified, this is one, and this court will not hesitate to do its duty and say that the a* erdict of the jury and judgment of the court should be carried out.

The defendant was accorded a fair and impartial trial. There are no reversible errors in the record. The evidence is sufficient to sustain the charge of murder. The judgment is affirmed.

The original time for the execution having passed ■ during, the pending of this appeal, it is considered, ordered and adjudged by this court that the judgment and sentence of the district court of Oklahoma county be carried out by electrocution of the defendant, on the 6th day of December, 1935.

EDWARDS and DOYLE, JJ., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    MORRIS MASSEY v. STATE.
    No. A-8708.
    Aug. 17, 1934.
    Rehearing Denied Oct. 2, 1935.
    (49 Pac. [2d] 812.)
    Thos. W. Mayfield, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul W. Updegraff, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereafter called defendant, was convicted in the district court of Cleveland county of the offense of obtaining property by false pretenses, and. his punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years. Defendant was jointly charged with one R. R. Rollins; a severance was granted and defendant only placed on trial in the case at bar.

Defendant’s principal contention is that the evidence is insufficient to support the verdict of the jury.

The evidence of the state is that one R. D. Robey was the owner of a grocery store at Norman, Oída.; that R. R. Rollins was a long-time acquaintance of Robey; that Robey had suffered an attack of paralysis, and, being in failing health, desired to sell his store; that he approached Rollins to find him a buyer; that on the next day Rollins brought defendant to his store and introduced him as a “millionaire oil man” of Oklahoma City; that, after a perfunctory examination of the stock, it was agreed that defendant would pay $600 to Robey and assume approximately $950 of accounts due wholesale dealers; that Rollins had a contract prepared and returned to Robey’s store with defendant, at which time Robey was induced to sign the contract, defendant telling him that he could not pay him the money for ten days, until they could cheek up who he owed for merchandise; that the Bulk Sales Law (St. 1931, § 10014 et seq.) required the purchaser to withhold the purchase price for ten days; but that he would give him a note for $600, which Rollins represented to be as good as the money; that immediately on the signing of the contract defendant entered into possession of the store, leaving Rollins and one Knox to' run it for him; that immediately the price of all goods was cut very much below the wholesale cost, and a continued effort for one week made to turn the stock of goods into cash; that during the week a large amount of goods was carried away by Rollins; that on Sunday evening defendant aided in removing a large amount of goods from the store, loaded them in a truck, and took them away; that on Monday, March 5th, when the store was opened, it was discovered by Knox that almost all of the merchandise was gone; that Eobey waited at the store all day for the defendant to show up and pay him the cash, but that he never came, and no payment was ever made; that the cash received from the sale of the merchandise went into the hands of Eollins, who was in charge for defendant; that no part of this money was ever paid to Eobey nor to any of his creditors; that the false representations of defendant and Eollins was the moving causé of the transfer of the stock of goods by Eobey to defendant; that Eobey furnished defendant a list of his mercantile creditors and offered to notify them of the sale in compliance with the Bulk Sales Law, but defendant stated that was not necessary, as he lived in Oklahoma City and he would have his lawyer notify the creditors; that no notice was ever given to any of the creditors by defendant nor any serious effort made to carry out the terms of his contract of purchase.

This evidence is sufficient to establish the guilt of defendant beyond a reasonable doubt.

Defendant also" contends the evidence is insufficient because the state failed to prove that the representations were the sole moving cause for obtaining the goods.

The record discloses that Eobey relied on these representations and Avould not have delivered the goods had they not been made.

No fundamental error appearing, the cause is affirmed.

DAVENPOET, J., concurs. EDWAEDS, P. J., absent, not participating.


author: DAVENPORT, P. J.

text:
    BO OLIVER v. STATE.
    No. A-8891.
    Oct. 3, 1935.
    (49 Pac. [2d] 1109.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lowell R. Smith, Co. Atty., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to in this opinion as the defendant, was tried upon a charge of murder, convicted of manslaughter, and sentenced to imprisonment in the state penitentiary for a term of thirty-five years.

The testimony briefly is as follows:

T. B. Semore stated:

“My name is Tom Semore; I live at Wagoner, Oklahoma; Leonard Semore was my son; Leonard Semore died December 31,1933, at my home in Wagoner; he was twenty-two years old, and weighed about 158 to 160 pounds; was six foot tall. About the 15th of November, 1933, Leonard left Wagoner and went out near Sentinel, Oklahoma; the next time I saw him he was at Hobart, in a hospital, on the 29th of November, 1933, where he remained for about fifteen days; he was treated by Dr. Adams; at the expiration of fifteen days he was removed from Dr. Adams’ hospital to Wagoner, my home; Dr. Plunkett treated him at my home.”

Frank Roberts, in substance, testified as follows:

“I live at Sentinel, Okla., where I was living November 29, 1933; I knew Butch Allen and Bo Oliver; knew Leonard Semore; I knew the three you have named on November 29, 1933. The night of November 29, 1933, I attended a dance at Butch Allen’s place, arriving there about eight-thirty or nine o’clock; my wife and Leonard .Semore went with me, she was Leta Smith, we had not married at that time; there was another girl, I believe her name was Mildred Wiley; we went in Leonard Se-more’s car from my home; Butch Allen lived about seven miles north of Sentinel, a mile west and a quarter of a mile north, that would be northwest of Dill; Roland Se-more, Leonard Semore, Leta Smith and Mildred Wiley went to the dance; Bo Oliver was there; during the time I was at the dance I saw Newman Hatcher, Alfred Rogers, Huston Loveall and Leona Cox, but I do not remember seeing Jack Clem; after the dance broke up we started to leave; Bo Oliver told us to get in the car and leave; I got in the car and he told Leonard Semore to leave, and he could not find his keys, so I went back to look for the keys and could not find them; I was looking on the floor of ,the car for the keys; the car was facing east; it was a Ford roadster, ’29 Model; Leonard Semore was standing at the north of the car; Bo Oliver, — I would judge him to be standing about fifteen or twenty feet — when I was looking-for the keys; there was a gun fired, I heard the report; I heard Leonard Semore say to Bo Oliver, ‘Olq Bo Oliver, you have shot me.’ Leonard fell on the ground and Bo Oliver left; after the shot was fired I heard the gun jam; Bo Oliver had the gun; I don’t know where Oliver went when he left the scene of the shooting; the next time I saw him he was in jail here, which was about a month after the shooting. About the time this shooting took place there was other shooting around there; after this shot was fired the parties all disappeared. Leta Smith, Clarence Semore and wife, and another boy and myself stayed there; after Leonard fell we picked him up and put him in a car, I believe it was Eufus Duncan’s car; they took him to Cordell hospital, there was no Doctor in town; we then went to Sentinel, to the hospital, and the Doctor there advised us to take him to a surgeon; we then took him to Dr. Adams’ hospital and left him there under Dr. Adams’ treatment.”

On cross-examination witness stated they were traveling in a Ford roadster.

“Leta Smith is now Mrs. Frank Eoberts; Eoland Se-more is a brother of the deceased. We left from my home to go to the dance. We probably stayed in the house not over thirty minutes; I do not know if any trouble took place between the parties in the house; I do not know if Leonard Semore Avas put out of the house by anyone that evening; I was not put out; somebody had some trouble just outside of the door but I do not know Avho it was. Leonard Semore lost the car keys and I was looking for them at the time the shot was fired; while I was down looking for the keys Bo Oliver was out in front of the car; I had a drink of whiskey but I did not have a supply; Eo-land Semore had some whiskey; Eoland Avas just sitting there in the car at the time the shot was fired; we did not take Eoland along with us when we went home, we put him out of the car west of town; I did not roll him out to the side of the road; nobody in the crowd had a gun that I saw that night, and I did not tell anyone that there was a gun in our crowd but I could not tell it, that the county attorney had tied my hands with a statement.”

The state called several witnesses who, in substance, corroborated the testimony of Frank Eoberts as to being at the dance the night Leonard Semore was killed, and what took place at the car of Leonard Semore at the time Bo Oliver shot him, showing that Eoberts was trying to find the key to the car and that Bo Oliver had demanded him to leave; that Bo Oliver came out of the house swearing, and saying, “Let me to' him, let me to him,” and finally Bo Oliver shot Leonard Semore, paralyzing his body from where the bullet entered down, and he could not use his legs.

Dr. Adams testified he examined the deceased when he was brought to his hospital, and that the deceased was completely paralyzed, and that no one ever got well from such an injury; that the deceased was apparently better at times and then would be worse, but there never was any chance for him to recover or live with such a gunshot wound.

Dr. J. H. Plunkett, of Wagoner, testified the deceased was brought to his father’s home at Wagoner; that he visited him and treated him; that it was the wound or injury that caused the death of the deceased.

Several Avitnesses, testifying for the state, testified positively that the deceased was not armed at the time the defendant shot him; one or more testifying that he had an empty whisky bottle in his hand.

The record further shoAvs that the defendant immediately left the deceased, and Avent to' South Texas, and remained in hiding from the night of November 29, 1938, until February 23, 1934.

The defendant does not deny he fired a bullet into the body of the deceased, at or near the car of the deceased, on the night of November 29, 1933, but undertakes to justify his action by the following statement:

“I am A. B. Oliver, generally known as Bo Oliver; I am 32 years old; live at Sentinel; married, have a wife and two children; on the night of November 29, 1933’, I went to the dance at Butch Allen’s, accompanied by Iclc Hatcher, my little nephew, and my little boy; when we got to Allen’s place I drove in to the yard on the south side of the house, my car was facing toAvard the east; I started into the house and Boland and Leonard Semore stopped me at the edge of the house; Boland Semore is in jail, has been in there practically ever since I have been there; we get along nice, I shave him every day; I knew Leonard Semore probably three weeks before the night of the dance; Avhen they met me they offered me a drink of Avhiskey out of a pint bottle, and I told them I did not want to take a drink; Leonard Semore pulled out his gun and showed me; the Semores appeared to be drunk; after the conversation I went on in the house; I was standing near by Avhen Ick Hatcher and Leonard Semore got into a fuss, something about a tag dance, and Butch Allen told them to go outside; they went outside; there were several others out there and I went out also; they were cussing each other about the tag dance and a woman in there, and Leonard Semore pulled out a gun, and I grabbed the gun, and we had a controversy, and Leonard Semore asked, ‘What the hell did I have to do with that,’ and I said, ‘I did not AVant to see you have any trouble.’ And he said, ‘If you grab my gun again I will use it on you.’ Finally we all went back in the house.
“Shortly afterwards the dance broke up. Leonard’s car was facing the east, he had turned it so he could get out, it was facing south, and on the north side of my car; the south side of his car was probably about ten feet from my car. After the difficulty with Hatcher and Semore my brother-in-law came in and told me that Leonard Se-more had said he was going to kill that hair-lipped son of a bitch before the dance is over; after the boys told me that I went to my car and got my gun and put it in my pocket for my protection; it was in my Ford roadster, in a little place I had for it; I had put it in there when I went to Chickasha; I was fixing to go home and asked Leta Smith and Mildred Wiley if they wanted to go home with us; that the boys were drunk; I heard Semore tell Frank Boberts, standing back of my car, ‘I am going to kill that hair-lipped son of a bitch,’ and I walked back to my car and he got in his car and reached over in his car, and I said, ‘What have yon got there, Semore’ — and I said, ‘Drop it; I Avill fight you fair,’ and he says, ‘Get ready to meet yonr God, you hair-lipped son of a bitch,’ and had his gun in his hand, and I shot him once; I did not want to kill him, after I shot him I left, and told my little nephew and little boy to meet me at the corner; I did not want to have any trouble with his brother. I did not surrender to the sheriff then; I started to return home when they caught me.”

On cross-examination defendant stated:

“I knew they would have to have me present to have a trial; certainly I am that smart. I left the country immediately after I shot Semore, I left him there to die; you would leave too; when I left he was lying on the ground; I did not hear the deceased say, ‘Bo Oliver, you have killed me;’ I was not drinking that night; Roland Semore had whiskey and they asked me to have a drink, and I told them no; that is when I saw the deceased with a gun; it looked like a 45, a pocket gun; it wasn’t an automatic; he Avanted me to help break up the dance; I had seen Leonard Semore a few times before this night and was pretty well acquainted with his brother. Leonard said he had stuff to take in the dance with; I went inside and watched them dance, talked Avith Mrs. Allen and also Butch; when he pulled his gun on Ick Hatcher I grabbed the barrel of the gun, and he told me, what the hell did I have to-do with it, and I told him I did not want any trouble, and he told me if I grabbed his gun again I will use it on you; I did not say anything, but he and Ick argued a little and he walked back and put his gun in his pocket. My nephew is not here. After the difficulty we went back to the house and Hatcher went to dancing. I asked Se-more what he had, AAdiat have you got there ¡Semore, drop it, and I will fight you fair, but he did not drop it; he said, ‘Get- ready to meet your God, you son of a bitch;’ I then shot him and got my little boy and left. I was caught in Texas, in Floresville; I was gone three months. Q. You killed this man in self-defense, didn’t you? A. Yes. Q. Then you immediately left the country? A. Yes, sir.”

Ick Hatcher, testifying for the defendant, stated that he lived at Hobart; he knew the defendant Bo Oliver; that he attended the dance at Butch Allens’ November 29, 1933.

“While I was inside dancing I had a little controversy with the deceased; he seemed to be drinking, and commenced to say something to me and I said something back, and he said, ‘You are not so damn tough, are you,’ and I said, ‘No sir;’ we had a little fuss and Butch Allen asked us if we were going to have any trouble to go outside, and Leonard Semore went out, and he had something in his hand; after I had the controversy on the outside where Leonard Semore had something in his hand, I went over to the car of Mr. Riggins, I believe it was, and asked him to take me home, and he said he had to go over to Dill.”

On cross-examination witness stated he went to the dance with Bo Oliver, and left after the dance was over. “I have been convicted of larceny of domestic fowls.”

There was other testimony in behalf of the defendant, and rebuttal, but the foregoing is the material testimony necessary to arrive at an opinion as to whether or not the defendant had a fair and impartial trial, and was accorded all the rights guaranteed to him by the Constitution and laws of the state.

Six errors have been assigned by the defendant alleged to have been committed by the trial court possessing sufficient merit to warrant this court in reversing the case and granting him a new trial. The defendant discusses his fourth assignment of error, that the court erred in overruling plaintiff in error’s demurrer to the evidence of the state and in overruling plaintiff in error’s motion for a directed verdict.

The defendant discusses his fourth assignment but does not cite any authority in support of his contention. After carefully reading the evidence in the record, the defendant was very fortunate the jury returned a verdict of manslaughter in the first degree instead of murder, as the testimony is amply sufficient to have sustained a conviction of murder, and the court did not err in overruling defendant’s demurrer to the evidence and motion for a directed verdict.

The other assignments will all be considered together, as they relate to the question of the competency or incompetency of the testimony admitted or rejected. Without going into detail, we hold that the errors complained of by the defendant are without merit.

The testimony of the witnesses shows conclusively that the defendant in this case brought on the difficulty; that he came out of the house, or out near the car where the deceased was preparing to leave, and demanded that they leave, using language that has not been incorporated in this opinion, but such language as to arouse a person to anger or to< create a breach of the peace; that some few words were passed between the deceased and the defendant, and the defendant fired the shot that took the life of the deceased, and the deceased being unarmed, and having nothing in his hand, unless it was an empty whisky bottle, and being several feet from the defendant at the time he fired the shot.

There is not a word of testimony showing any mitigating circumstances, and the testimony of the defendant as to what took place prior to the difficulty, as to the difficulty had by the deceased and Ick Hatcher, is not supported or borne out by the witness Hatcher; Hatcher left the scene before the fatal trouble. If the record shows anything, it shows the action of a man who was bent on having trouble with some one, and seemed to have selected the deceased as his prey to shoot. No justification is offered excepting the defendant’s testimony, which does not bear upon its face the earmarks of truth. Immediately after the shot was fired, the defendant left the scene of the difficulty, and was arrested in Southern Texas a few months later and was brought back to Washita county for trial.

The testimony in this case shows the deceased and the defendant were slightly acquainted, knowing each other for two or three weeks; that the deceased and the defendant had been friends and were friendly when they met. The testimony in this case tends to show the defendant and the deceased had been drinking whisky the evening of the difficulty. The defendant insists that prior to this difficulty, when the deceased and Ick Hatcher were having an argument out in. the yard, that the deceased had a pistol drawn, and he caught hold of it to keep the deceased from shooting Hatcher.

Hatcher’s statement does not bear out the testimony of the defendant; Hatcher says he had something in his hand; Hatcher’s testimony shows that he and the deceased argued there for a while and he went and asked a man who was attending the dance to take him home, and the party replied that he was going, to Dill. Outside of the defendant’s testimony that some of his relations had reported to him that the deceased was going to kill the defendant, there is not a word in the record to show that the deceased had any ill will against the defendant or that they had any previous difficulty.

The statement of the defendant makes it at least a case of manslaughter in the first degree, the testimony of the state makes out a case of killing without any provocation or justification, and the defendant was indeed fortunate that the jury did not render a verdict of murder with a sentence to' the electric chair. The admission of evidence objected to by the defendant, and urged by him as grounds for reversal, did not prejudice the defendant or deprive him of having a fair and impartial trial. Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176.

The case is affirmed.

EDWARDS and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    Ex parte RED AUTRY.
    No. A-8962.
    Oct. 3, 1935.
    (50 Pac. [2d] 239.)

      Right & Right and H. Tom Right, for petitioner.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and D. M. Battenfield, Co. Atty., for respondents.
   DOYLE, J.

This is an application for writ of habeas corpus, wherein the petitioner, Red Autry, alleges that he is unlaivfully imprisoned and restrained of his liberty, and seeks to secure his release by order of this court from the custody of the sheriff of Rogers county, and also from the custody of the warden of the state penitentiary.

It appears from the petition and the answer thereto that petitioner is held under a commitment, issued in execution of sentence, upon a judgment of the district court of Rogers county, rendered March 30, 1935, in accordance with the verdict of a jury, finding petitioner guilty of the crime of swindling or confidence game with cards, and fixing his punishment at a fine of $1,500 which judgment recites: “It is Therefore Ordered, Adjudged and Decreed by the Court that the said Red Autry pay a fine of $1,500 and costs. It is further ordered that said defendant be kept in the Rogers County jail, for a period of 90 days, and if said fine and costs are not paid within (90) ninety days, it is ordered that Red Autry be taken to State Penitentiary at McAlester, Oklahoma, to- be incarcerated in said penitentiary, until said fine and costs are paid or time served for same. Costs are $179.15”; that the said 90 days have elapsed and petitioner has been, and is now being, held in the county jail in the custody of the sheriff, awaiting the convenience of the sheriff to transport him to the penitentiary at McAlester, to serve said sentence.

Counsel for petitioner contends:

That under section 2175, St. 1931, it was the duty of the court to render a judgment and sentence, according to the verdict of the jury fixing the punishment, which was the payment of a fine of $1,500, and that there was no provision made in said verdict for an alternate punishment. That, if there is any authority “to incarcerate petitioner in the penitentiary, until said fíne and costs are paid or time served for same,” it must come from section 1, chapter 112, Session Laws 1913, an act providing for the working of county, city, and town convicts upon public highways in lieu of payment of fine and costs, which is now section 3166, St. 1931.

That said act is unconstitutional, in that the title does not embrace the subject which is under consideration in this case, in that no reference is made as to costs as an additional penalty, and it embraces other subjects. That the subject-matter in question is not germane to the title of the act in violation of section 57, art. 5, of the Constitution, providing that “every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. * * *” That under section 2175, St. 1931, upon which the prosecution is based, the punishment provided is “by a fine of not less than one thousand dollars nor more than five thousand dollars, or by confinement in the penitentiary for a term of not less than one year nor more than five years.”

That under section 3107, St. 1931, he was entitled to have the jury assess and declare the punishment in their verdict. That he made this request, and that under said section it was the duty of the court to “render a judgment according to such verdict.”

That, inasmuch as the jury fixed a fine as the punishment, there is a variance between the verdict of the jury and the sentence of the court.

That for the reasons stated the district court of Rogers county was without jurisdiction to render the judgment and sentence under which petitioner is now held in custody.

The office of the writ of habeas corpus is to- afford the citizen a speedy and effective method of securing his release when illegally restrained of his liberty. Its scope, when directed to an inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment. Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759; Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758.

The principal proposition advanced by the learned counsel for petitioner is that section 1, of chapter 112, Session Laws 1913, is for the reasons stated unconstitutional; and he asks the court to reconsider its opinion in the case of Ex parte McCoy, 45 Okla. Cr. 52, 281 Pac. 813, holding that:

“When a judgment in a criminal action imposes confinement in the State Penitentiary and in addition thereto a fine and costs, the fine and costs may, at the termination of the confinement specified, be imposed by further imprisonment until paid or satisfied at the rate of $1.00 per day.”

And expressly overruling the case of Ex parte Dunnavant, 41 Okla. Cr. 113, 271 Pac. 861, holding:

“The restraint of a convict by the Avarden of the state penitentiary for the payment of costs is without authority of law.”

Counsel for the state cite and rely on the cases of Ex parte McCoy, supra, and Ex parte Eurick, 143 Okla. 280, 288 Pac. 467, Avherein the Supreme Court of this state, referring- to the McCoy Case, said:

“Here the Criminal Court of Appeals clearly holds that, in accordance Avith the act of the Legislature of 1913' (LaAvs 1913, c. 112), a person may be imprisoned until the fine assessed is paid or satisfied at the rate of $1 per day. We follow that holding.”

The cases cited involved the validity of section 1, chapter 112, Session Laws 1913, now section 3166, St. 1931. Owing to- the fact that there has been a revision of the statutes as authorized by chapter 23, Session Laws 1931, appearing as sections 4271 — 4276, St. 1931, renders it unnecessary for us to discuss this question. The authority given the Legislature by the Constitution, art. 5, § 43, to revise the laws, permits it to revise to any extent so long as the substance of the proposed revision is not otherwise prohibited by the Constitution. The revision is a substitute. It displaces and repeals the former law as it stood relating to the subjects within its purview.

This leaves for our determination the question of the power and authority of the trial court to sentence a defendant convicted of a felony to imprisonment in the state penitentiary to enforce the payment of a fine and costs until the same shall be satisfied at the rate of. $1 per day.

The written law of this state makes no such specific provision.

In the case of Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20. 21, it is said:

“We are of the opinion that where the punishment for an offense is both fine and imprisonment, under the common-law practice and under the statute also (section 6917, supra), the trial court may properly adjudge the defendant, for a failure to pay the fine, to be imprisoned, such imprisonment to' commence after the expiration of the term fixed as a punishment for the crime. It is provided in the Bill of Rights, Const, art. 2, § 13 (section 21, Williams’), that:
“ ‘Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law.’
“ ‘Under the common-law practice, wherever a court has power to impose a fine it has the power to compel the payment thereof by the imprisonment of the party fined.’ 19 Cyc. 551. * * *
“As we view it, our statute is but a reenactment of the common-law as to imprisonment for the nonpayment of fine, and the practice at common law was to imprison for fine, even if imprisonment was also imposed. Beecher’s Case, 8 Coke, 58. * * *
“We have next to consider whether under the statute a convicted defendant can be imprisoned for nonpayment of costs. This question was directly passed upon in the case of Ex parte Harry, 6 Okla. Cr. 168, 117 Pac. 726, Avherein it was held that:
“ ‘The poAver to punish by fine and imprisonment until such fine is paid does not include the power to add to such fine the costs of the prosecution and adjudge that, upon a failure to pay such costs, they shall be satisfied by imprisonment as a part of the fine.’
“Costs were unknown to the common law, and the power to impose costs must be found in the statute or it does not exist. * * *
“Under Bill of Rights, § 13, supra, permitting imprisonment for the nonpayment of fines and penalties imposed for the violation of law the Legislature of this state would have authority to provide as a part of the penalty for the violation of law the payment- of costs and the enforcement of the payment by imprisonment. Under the provisions of our Penal Code and Procedure Criminal, the costs are not made a part of the penalty for the violation of law. The power to punish by fine does not include the power to add to such fine as may be deemed a proper penalty for the offense committed the costs of the prosecution also. Therefore the courts of this state have not the power to imprison a convicted defendant for the nonpayment of costs.”

This opinion was filed October 19,1912. Chapter 112, Session Laws 1913, with the emergency clause, was approved March 19, 1913.

This was the only legislation relating to fines and costs until the adoption of the revised statutes September 19, 1931, in which appear sections 1, 2, 3, and 4, of chapter 112, Session Laws 1913, as sections 3166-3169, St. 1931.

Article 33, chapter 17, entitled “Execution of Judgment,” provides:

Section 3151. “When the judgment is imprisonment in a county jail, or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county or subdivision. In all other cases when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer, in execution of the judgment.”
Section 3164. “When any poor convict shall have been confined in any prison for the space of six months, for nonpayment of fine and costs only, or either of them, the sheriff of the county in which such person shall be imprisoned shall make a report thereof to any two justices of the peace for such county; if required by such justices, the said keeper shall bring such convict before them, either at the prison, or at such other convenient place thereto as they shall direct; the said justices shall proceed to inquire into the truth of said report, and if they shall be satisfied that the report is true, and the convict has not had since his conviction any estate, real or personal, with which he could have paid the sum for the nonpayment of which he was committed, they shall make a certificate thereof to the sheriff of the county, and direct him to discharge such convict from prison and the sheriff shall forthwith discharge him.”
Section 3166. “The fees herein provided * * * for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and 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 one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.”

Under the statute, when a judgment is payment of a fine and costs, the court has power and authority to enforce the payment of same by imprisonment of the defendant in the county jail, until the fine and costs are satisfied, and prescribing the rate per day for determining the period of imprisonment for the nonpayment of the same. The payment of the fine and costs is the punishment. The commitment until the fine and costs are paid or satisfied is no part of the punishment, it is the mode of executing the sentence; that is, of enforcing the payment of the fine and costs of prosecution. The power of the court- to order a defendant adjudged to pay a fine and costs is not con■fined to cases where a fine only is imposed, but also extends to cases where both confinement and a fine are imposed as a punishment and includes the power to add to such fine the costs of prosecution.

When the place of imprisonment is not specified in the law to be the state penitentiary, such imprisonment cannot be enforced in the penitentiary. To an imprisonment in the penitentiary infamy is attached.

Our Penal Code provides:

“A sentence of imprisonment in the state prison for any term less than for life, suspends all the civil rights of the person so sentenced, and forfeits all public offices, and all private trusts, authority or power, during the term of such imprisonment.” Section 1813, St. 1931.

The fundamental law of the United States and of the state of Oklahoma alike prohibit the taking of the citizen’s life, liberty, or property, unless by the judgment of his peers, or the law of the land.

“Judgment of his peers,” is a term of expression borrowed from Magna Charta, and it means a trial by jury; the words “or law of the land” have the same origin and are to the same effect as “due process of law” in the Bill of ■Rights, Constitution, art. 2, § 7, declaring that: “No person shall be deprived of life, liberty, or property, without due process of law.”

It means judgment of the law in its regular course of administration through courts of justice.

The terms “law of the land” and “due process of law” are synonymous, and mean that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society. Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930.

“Due process of law,” as used in the Bill of Bights, § 7, supra, is intended to protect the citizen against arbitrary action, and to secure to all persons equal and impartial justice.

The legislature has the power under the state constitution to define'crimes and prescribe punishments, and to provide as the punishment for violations of the law defined as felonies the payment of fines and confinement in the penitentiary, and to provide for the enforcement of the payment of the same by further confinement after the imprisonment part of the sentence has been served.

Punishment for crime is not restricted to the deprivation of life, liberty, or property by due process of law, but also embraces deprivation or suspension of political or civil rights. The enactment of section 1818, above quoted, was in the proper exercise of this power.

No one would deny the proposition that a person cannot be taken to the state penitentiary, and detained there as a punishment without an accusation, trial by jury, conviction, and sentence in the due and orderly course of law. Nothing less than these forms would amount to due process of law, when an infamous punishment is to be imposed. No one would deny that such an act, done by the state, would be in direct defiance of the constitution. When a defendant convicted in the due and orderly course of the law is adjudged to pay a fine and costs and the court in execution of the sentence orders the defendant “to be taken to the state penitentiary at McAlester, Okla., to be incarcerated in said penitentiary until the said fine and costs are paid or time served for the same,” such imprisonment would be another and separate punishment. The very statement of the proposition would seem to be its proof, and such imprisonment would not be due process of law. In such a case due process of law requires that a defendant shall not he subjected to a punishment infamous in character to enforce the payment of a fine and costs or until the same is satisfied. Upon the record before us it appears that petitioner had imposed upon him another and separate punishment of an infamous character, with the jury fixing only a fine.

In the case of In re Bonner, 151 U. S. 242, 258, 14 S. Ct. 323, 326, 38 L. Ed. 149, Mr. Justice Field, speaking for the court, said:

“When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict; and the law, in prescribing the punishment, either as to the extent or the mode or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. If the law prescribes a place of imprisonment, the court cannot direct a different place not authorized. It cannot direct imprisonment in a penitentiary, when the law assigns that institution for imprisonment under judgments of a different character. * * *
“The prisoner is ordered to be confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the writ of habeas corpus, in such a case, is a virtual suspension of it; and it should be constantly borne in mind that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source, — equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals.
“The laws of our country take care, or should take care, that not the weight of a judge’s finger shall fall upon any one, except as specifically authorized. A rigid adherence to this doctrine will give far greater security and safety to the citizen than permitting the exercise of an unlimited discretion on the part of the courts in the imposition of punishments, as to their extent, or as to the mode or place of their execution, leaving the injured party, in case of error, to' the slow remedy of an appeal from the erroneous judgment or order, which, in most cases, would he unavailing to give relief.”

This court is of the opinion that for the reasons stated the trial court had no power, authority, or jurisdiction under the law to sentence petitioner to confinement in the state penitentiary, in execution of the sentence of fine and costs to enforce the payment of the same.

The holding by a divided court, in the case of Ex parte McCoy, supra, for the reasons stated, is expressly overruled. The holding in the case of Ex parte Dunnavant, supra, is approved.

In the case at bar, it is our opinion that petitioner, Red Autry, is unlawfully restrained of his liberty and is imprisoned without due process of law. It is therefore ordered that the Avrit of habeas corpus issue, and that petitioner be discharged from the custody of the warden of the state penitentiary at McAlester, but without prejudice to the right of the state to take any lawful measures to have petitioner sentenced in accordance with law, upon the verdict against him.

DAVENPORT, P. J., concurs. EDWARDS, J., dissents.


author: EDWARDS, J.

text:
    W. J. HOLLOWAY v. STATE.
    No. A-8875.
    Sept. 27, 1935.
    Rehearing Denied Oct. 11, 1935.
    (52 Pac. [2d] 109.)

      Ward & Ward and L. O. Todd, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. (Eldon J. Dick, of counsel), for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of receiving, stolen property and his punishment fixed at imprisonment in the state penitentiary for one year.

A brief statement of the facts is about as follows: Defendant operated a second-hand lumber yard in Tulsa, and on the date charged 19 bundles of shingles were stolen from an open yard of the Curd Lundy Lumber Company, in Tulsa. On the day or the second day following, these shingles were found at defendant’s place of business. They were identified, and on demand defendant delivered them to the owner. When these shingles were discovered in the possession of defendant, he stated he had bought them that morning from some person whose name he did not know, but said the individual came there frequently and he would deliver him to the officers. He furnished no further information. Defendant did not take the stand and offered no testimony. Some complaint is made that the shingles were not sufficiently identified, but without reciting the testimony, we conclude there is an abundance of evidence on this point.

The contention is made that there is a variance between the allegations of the information and the proof. The information Alleges defendant received the 'stolen property from “one John Doe, whose true name is unknown.” During the course of the trial it developed that at one time after the complaint had been filed defendant stated to the witness Rogers, a police officer, that he had bought the shingles from a man named Charley Robinson. From these circumstances defendant insists the state did know the name of the person from whom defendant received the property and the allegation he was unknown constitutes a fatal variance. He relies on Boggess v. State, 29 Okla. Cr. 234, 233 Pac. 239, and authorities therein cited. This assignment was not mentioned on the trial nor specifically assigned in the motion for new trial and is not specifically assigned in the petition in error. Error, unless fundamental, must be excepted to at the time, assigned in the motion for new trial and in the petition in error; unless this is done, it is waived. However, neither the Boggess Case nor the others cited sustain the contention, under such a state of facts as appear here. In the Boggess Case the information alleged the. property was received from one Clarence Williams and the evidence was that if received at all it was from Austin Tillman and Joe Derrick, which clearly constituted a variance. In the instant case it appears that neither the complaining witness nor the county attorney knew the name of the person from whom defendant received the property; that no evidence upon this point was offered by the state and only the incidental testimony of the police officer that in talking to defendant he informed him he bought the shingles from Eobinson. In Moss v. State, 4 Okla. Cr. 247, 11 Pac. 950, 956, it was said:

“But the better rule seems to be that, in the absence of any proof on the part of the state or the defendant touching the matter, the verity of the allegation will be presumed, and the burden is on the defendant to show affirmatively that the accusing officer or tribunal did in fact know the name of such person.”

See, also, Reeves v. Terr., 10 Okla. 194, 61 Pac. 828; Robinson v. State, 8 Okla. Cr. 667, 130 Pac. 121; Coffin v. U. S., 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481; Com. v. Hendrie (2 Gray) 68 Mass. 503; People v. Grahle, 67 Cal. App. 183, 227 Pac. 227.

Defendant next argues the court erred in refusing requested instructions of defendant. These instructions and the argument are directed to the contention that since defendant made exculpatory statements which were testified to by witnesses for the state, in effect that defendant bought the shingles from one Charley Eobinson, that the burden was on the state to prove these statements untrue, citing Davis v. State, 20 Okla. Cr. 203, 204, 201 Pac. 1001; Graham v. State, 12 Okla. Cr. 84, 152 Pac. 136; and authorities from other states. This is coupled Avith the further argument that defendant was entitled to an instruction in substance that the state was bound by this testimony of the purchase of shingles, and the same must be taken as true unless the state had proven their falsity to the satisfaction of the jury beyond a reasonable doubt. The state did not attempt to' prove that defendant did not purchase the shingles from Charley Robinson. It was not the theory of the state that defendant did not purchase the shingles, but that they were received on some consideration, by defendant, knowing the same to have been stolen. In support it presented testimony by one Spillman, which will be adverted to later, in substance that about a year before the discovery of the shingles at defendant’s yard, there was stolen from the lumber yard of Lancaster Lumber Company, at Tulsa, certain screen doors; that the witness found these at the yard of defendant, and upon his being questioned about the possession defendant stated he had bought them from Charley Robinson and that Robinson lived in the same quarter of town as stated in the instant case; that upon demand he had delivered the screen doors to witness for Lancaster Lumber Company, and at the time promised to deliver Robinson tO' them, but never communicated further with them about it. This testimony was admitted on the theory it would tend to prove intent and knowledge of defendant. In the instant case the court, in substance, instructed the jury that a conviction could not be had upon the unexplained possession of recently stolen property, but before the jury could convict, it must find, in addition to the possession, evidence which tended to connect defendant with the commission of the offense; that the burden was on the state to prove all the allegations beyond a reasonable doubt; that defendant was presumed to be innocent, and before conviction could be had, the state must prove the defendant bought the shingles in question, that they had previously been stolen from Curd Lundy Lumber Company, and that defendant knew at the time same had been stolen. The instructions fully covered the law of the case, and the refusal of the court to give the requested instructions was not error.

Lastly, it is urged the court erred in admitting, cer- . tain testimony. This assignment is directed to Spillman’s testimony of the finding of stolen property at defendant’s place of business on a prior occasion as above set out. It is Avell settled that testimony which tends to shoAV plan or scheme or to prove intent is admissible although it may have a tendency to show defendant guilty of some other crime. As applied to the receiving of stolen property, see Heglin v. State, 56 Okla. Cr. 364, 40 Pac. (2d) 41. There is an abundance of authority that the contemporaneous posession of other stolen property is admissible. Evidence of the possession of property at a prior or subsequent time, stolen at a different time and place from the property involved in the charge, is admissible on the question of guilty knowledge. State v. Zeman, 62 Utah, 422, 226 Pac. 465. Under this assignment it is earnestly argued the court erred in admitting proof of a city ordinance requiring a dealer in secondhand property to keep a record open for the inspection of the police. We have examined the testimony on this point and are of the opinion it was more favorable to the defendant than otherwise and did not influence the verdict. Cunningham v. Ponca City, 27 Okla. 858, 113 Pac. 919.

Upon a consideration of the entire record, we are satisfied defendant was fairly tried; that his guilt is clearly established; and that no reason for reversal is made to appear.

The case is affirmed.

DAVENPOET, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    GRADY ROLLIN v. STATE.
    No. A-8969.
    Oct. 11, 1935.
    (50 Pac. [2d] 1151.)
    W. F. Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error ivas convicted of the crime of having possession of a still worm, and received a sentence of thirty days in jail and a fine of $50 and costs.

The petition in error and case-made was filed in this court on August 9, 1935. No brief has been filed in support of defendant’s assignments of error.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    CHOC STANLEY v. STATE.
    No. A-8917.
    Oct. 11, 1935.
    (50 Pac. [2d] 1150.)

      ¡Sandy H. Singleton and John W. Scott, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Mat-son, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of burglary in the second degree, a third and subsequent offense, and was sentenced to imprisonment in the state penitentiary for a term of ten years, and appeals.

The time for filing brief on behalf of the plaintiff in error has expired. No brief has been filed in support of defendant’s assignments of error.

The record has been carefully examined. The testimony is conflicting, which was a question for the jury. There are no fundamental or prejudicial errors in the record. The jury after carefully considering the evidence found there was sufficient evidence to convict the defendant. The case is therefore affirmed.


text:
    In re JIM FACTOR.
    No. A-8966.
    Oct. 11, 1935.
    (50 Pac. [2d] 1149.)
    John M. Stanley, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Petitioner, Jim Factor, filed his duly verified petition in this court on August 6, 1935, alleging that he was improperly imprisoned in the county jail of Seminole county by the sheriff of said county; that to the best of his knowledge and belief he is held in default of bail on a charge of murder; that he had a preliminary hearing before a justice of the peace of said county on the 17th day of May, 1935, and was held to await the action of the district court of Seminole county without bond.

Petitioner further alleges that proof of guilt is not evident nor the presumption thereof great; that he is not guilty of murder, nor does the evidence taken at said preliminary so show or indicate. Attached to the petition is a transcript of the testimony taken at the preliminary hearing.

Petitioner further alleges that he has applied to Hon. H. H. Edwards, district judge of Seminole county, praying that he be admitted to bail, but that the said district judge upon the hearing had denied him bail and remanded him to the sheriff of Seminole county.

After a careful examination and study of the evidence contained in the transcript, the court is of the opinion that petitioner is not entitled to the relief prayed for.

The application of the petitioner for a writ of habeas corpus is denied.


text:
    HERMAN WEILAND v. STATE.
    No. A-8906.
    Oct. 11, 1935.
    (50 Pac. [2d] 741.)

      M. D. Hartsell and D. C. Shannon, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of murder, and his punishment was fixed at death.

On the date charged defendant shot and killed one Roy Stretch. Defendant had married the sister of deceased, but they were shortly divorced; later a child was born, and defendant was ordered to pay $10 monthly for its support. He resented this, and at one time left the state to avoid payment, but was brought back by requisition, a hearing was had, and the payments were reduced to $5 per month. He had a feeling of ill will toward members of his wife’s family. At the time of the killing he went to the home of his father-in-law, in the nighttime, armed with a shotgun. Roy Stretch, a youth of 17 years, opened the door, and without a word being spoken, defendant shot him, inflicting a wound from which he died in a few minutes. He fired three more shots in an attempt to shoot other members of the family. Defendant did not take the stand, and offered no testimony. The defense is insanity.

Defendant contends the opening statement of his counsel that he was insane at the time of the commission of the crime raised the question of defendant’s present sanity, and that the court abused his discretion in not then trying the question of present sanity. The law providing for trials of the question of sanity, apart from the issue of the crime, goes only to present sanity. Sections 3106 and 3212, Okla. Stat. 1931. The opening statement of defendant’s counsel on this point is:

“I believe the evidence will tend to show you, I could say beyond a reasonable doubt in your minds, that this defendant, at the time of that tragedy, or accident, when that fine young man lost his life, that it will show you that he was then not at himself, but was laboring under a mental strain or insanity, and was not competent to know what he was doing or the result and consequences of his act. I believe we will be fully able to show you gentlemen from the evidence that those were the conditions that existed at that time.”

Nothing was said about the present sanity of defendant. The court was not apprised that defendant claimed he was not sane at the time of the trial. After the state had presented its testimony and rested, defendant introduced some testimony which might be construed as indicating defendant was insane. This was rebutted. A verdict was then returned finding defendant guilty of murder and fixing his punishment at death. Before sentence defendant filed motion for a new trial, a motion in arrest of judgment, and a request for jury tidal as to defendant’s present sanity. The court overruled the motion for new trial, delayed sentence, and ordered a sanity trial. A jury was impaneled, trial of the present sanity of defendant had, at which numerous witnesses, some expert and some lay, testified. A verdict finding defendant sane was returned. The verdict on this question of fact, amply sustained by the evidence, will not be disturbed by this court. Section 3062, Okla. Stat. 1931.

Where a defendant pleads that at the time of the commission of a crime he was insane and therefore incapable of committing crime, it is not necessary that there be a determination of the present sanity of defendant. It is only where there is a suggestion to the court in some manner that raises a reasonable doubt in his mind of present sanity that it becomes the duty of the court to have a trial to determine that question. In the instant case, if counsel for defendant desired a trial of present sanity, he should have suggested such fact to the trial court by some showing by affidavit or otherwise. There is nothing of that kind in this record until after verdict and by motion in arrest of judgment. It follows the trial court committed no error in failing, on his own motion, to conduct a sanity trial prior to verdict. Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139; Signs v. State, 35 Okla. Cr. 340, 250 Pac. 938; Adams v. State, 40 Okla. Cr. 44, 266 Pac. 790; Adams v. State, 49 Okla. Cr. 94, 292 Pac. 385.

Defendant next argues the court erred in overruling motion for new trial on the ground of newly discovered evidence. The motion sets out the names of various witnesses who testified at the sanity trial of defendant’s mental condition. He asserts this is entirely new and discovered since the trial, and that defendant and his counsel had no means of discovering such testimony before the trial. These witnesses, with one exception, were employees at the Veterans Hospital, at Muskogee, where defendant had worked for a long period of time; one of these wit-neses was the fiancee of defendant, whom he was to marry on the day following- the homicide. She was present at the trial, advising defendant’s counsel, and could have been used if he had desired. The slightest diligence in interrogating the employees of the hospital, prior to the trial, would have disclosed their testimony. It is not enough merely to allege that defendant used due diligence and did not know what the testimony of the witnesses would be, but facts constituting the diligence must be stated. Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760; Harper v. State, 7 Okla. Cr. 581, 124 Pac. 116; Ball v. State, 47 Okla. Cr. 145, 286 Pac. 808.

This court has uniformly held a motion for new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and his ruling will not be disturbed unless there is a manifest showing of abuse of discretion. Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093; McKinney v. State, 18 Okla. Cr. 562, 196 Pac. 974; Campbell v. State, 37 Okla. Cr. 321, 258 Pac. 357.

Another assignment argued is that the court erred in overruling a motion for new trial on the question of present insanity. This is an issue of fact, and the verdict of the jury is amply supported. There was no likelihood that, had the court granted a new trial, another jury would have arrived at a different conclusion.

Some contention is made the court erred in the exclusion of testimony. This is directed to the offer of opinion by lay witnesses of defendant’s insanity. The court evidently excluded the testimony in an. instance or two, on the theory the witness was not shown to be qualified by observation, or that the observation and opinion were referred to a time too remote. There is no merit in this contention.

The trial of the question of present sanity is in the nature of a special proceeding not involving any question of guilt or innocence, but a collateral issue. The court here followed the civil procedure, that is, he ruled and instructed that the burden was on the defendant on that issue, and that he was entitled to the opening and closing in presenting his testimony and in the argument, and further ruled and instructed that nine of the jurors might return a verdict. His ruling was in conformity to the statute regulating the procedure in such cases. Sections 3214, 3215, Okla. Stat. 1931, as well as in conformity to the general rule, 16 C. J. p. 791, § 2017; 14 R. C. L., Insanity, § 59. Many authorities are cited in the voluminous note in case of Baughn v. State of Ga., 38 L. R. A. 577; Nobles v. Georgia, 168 U. S. 398, 18 S. Ct. 87, 42 L. Ed. 515.

No contention is made of any mitigation of the crime charged, but all are directed to the question of the mental condition of defendant. His mental condition at the time of the commission of the crime is determined, as a matter of fact, by the verdict of the jury. That issue was submitted under proper instructions. The defendant is not concluded by tbe finding of Ms present sanity at tbe time of judgment and sentence, but as said in the case of Alder v. State, 53 Okla. Cr. 374, 12 Pac. (2d) 545, 547:

“There are ample safeguards in the law to fully protect from punishment one accused of crime who is not criminally responsible by reason of insanity. In this case a further inquisition may be had as to the mental condition of defendant upon a belief by the warden of the penitentiary of his insanity. Section 2788, Comp. St. 1921. The Governor, for his information, has the power to have an inquisition by alienists appointed by him to determine the sanity of the defendant.”

Certainly the warden of the penitentiary, if he has any doubt of the mental condition of defendant, will make inquisition as provided by section 3174, Okla. Stat. 1931 (section'2788, C. O. S. 1921), and that the governor, if a question of the sanity of defendant is presented to him, will have inquisitions made for his guidance.

The case is affirmed.

The original time for execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Muskogee county be carried out by electrocution of the defendant on the 13th day of December, 1935.

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


text:
    TOM THORNHILL v. STATE.
    No. A-8948.
    Oct. 11, 1935.
    (50 Pac. [2d] 415.)

      E. W. Snoddy and H. C. Crandall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Tom Thornhill, was convicted in the county court of Woods county, upon an information, charging that in said county on or about the 22d day of December, 1934, he did have unlawfully in his possession certain intoxicating liquors, with the intention to convey, sell, or otherwise dispose of the same.

The jury failed to agree upon the punishment. Motion for a new trial was filed, presented, and denied. March 5, 1935, the court entered judgment and sentenced him to confinement in the county jail for a period of ninety days and to pay a fine of $150 and the costs.

Upon the trial, the state was permitted to introduce in evidence, over objection, the complaint and affidavit for search warrant and the search warrant. Under which authority the sheriff and two deputies searched the home of plaintiff in’error.

The first witness called by the state, Ken W. Greer, sheriff of Woods county, testified that he had known Tom Thornhill for 15 to 20 years; knew where he lived in the town of Waynoka, and on December 22, 1934, in executing a search warrant, with the assistance of two deputies, searched and seized the intoxicating liquors in question. He then, over objection, identified the complaint and affidavit for search warrant and the search warrant, and over objection the same was admitted in evidence.

The affidavit and complaint, among others, contains the following recitation:

“That the affiant is personally acquainted with the said Tom Thornhill and knows the general reputation thereof in regard to being a person who engages in the intoxicating liquor traffic, in the community wherein he resides, and knows that said person has the general reputation in said community of being a person who engages in the illicit liquor traffic; that affiant is personally acquainted with the above-described premises, and knows the general reputation thereof in the community where situated and knows that said premises have the general reputation in said community of being a place where intoxicating liquors are made and kept for the purpose of sale and trade.”

The search warrant contains the same recitation.

By numerous decisions of this court it has been held before evidence of the general reputation of the place may be received as evidence in a case of unlawful possession of intoxicating liquors, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation.

In the recent case of Ging v. State, 57 Okla. Cr. 20, 42 Pac. (2d) 902, 903, it is said:

“The allegations in the search warrant which were admitted over the objections of the defendant, as evidence in chief, pnt in issue the reputation of the defendant, his home, and his place of business. The state had no right to go into the reputation of the defendant until it has first been put in issue by him, which has not been done in this case.”

Citing numerous cases and concluding:

“The recitations in the search warrant are with reference to the offense charged, and the introduction of the search warrant as independent evidence in chief was an error prejudicial to the rights of the defendant.”

A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. Upon the record in this case, we are convinced that the plaintiff in error did not have that fair and impartial trial to which he was entitled under the law.

For the reasons stated, the judgment herein is reversed.

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


text:
    ALFRED HALTOM v. STATE.
    No. A-8947.
    Oct. 18, 1935.
    (50 Pac. [2d] 744.)

      E. W. ¡Snoddy and H. C. Crandall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

In an information filed in the county court of Woods county, Alfred Haltom, the defendant, was charged with the offense of possession of intoxicating liquor, a pint of wine, in said county, on the 22d day of December, 1934, with the unlawful intent to sell or otherwise dispose of the same.

Upon his trial, the jury returned a verdict finding him guilty as charged, but failed to agree upon the punishment. Motion for a new trial was duly filed and denied. March 5, 1935, the court sentenced the defendant to he confined in the county jail for thirty days, to pay a fine of $50, and to pay the costs of the prosecution.

The principal ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.

The undisputed facts are that Neis Nelson, a deputy sheriff, was driving by and saw defendant, Alfred Haltom, Jimmy Bay, and Walter Wing standing near the Farmers Oil Station at the southeast corner of the courthouse square in Alva. Bay was taking a drink out of a pint bottle and handed defendant, Haltom, the bottle. The officer stopped his car, walked up to the men, and said:

“What’s going on here, let me have that bottle.”

Defendant said:

“Nothing*, I think it is wine.”

The officer took the bottle and told them to report on Monday at the sheriff’s office. The officer took the bottle to Mr. Lisk to analyze its contents. On Monday he verified the information, and this prosecution followed.

Gr. M. Lisk of the department of chemistry, N. W. Teachers College, testified that he analyzed the contents of the bottle and found the alcoholic content by volume 42.9, by weight 35.9.

At the close of the state’s evidence, a demurrer was interposed and overruled. Defendant then moved for a directed verdict on the ground that the state had failed to establish facts sufficient to constitute a public offense. This was also overruled.

On the part of the defense, the testimony of Walter Wing and defendant was to the effect that Jimmy Bay had the bottle, took a drink, and was handing it to defendant when officer Neis Nelson stepped up, took the bottle from Bay, and ordered them to report at the courthouse Monday morning.

It cannot be said that a misdemeanor is committed in the presence of an officer unless the acts constituting the offense become known to him at the time they are committed, through his sense of sight, or through other senses; although a person may actually be committing a criminal offense, it is not committed in the presence of an officer within the meaning of the statute if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting the offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant. Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631.

In the case of Testolin v. State, 188 Wis. 275, 205 N. W. 825, the Supreme Court of Wisconsin said:

“The officer testified that he knew nothing of the contents of the bottles when he made the arrest, and that it was made on suspicion. No search warrant was issued.
“We consider that the arrest, the seizure, and subsequent examination of the bottles were all one transaction. The arrest was illegal (Stittgen v. Rundle, 99 Wis. 78, 80, 74 N. W. 536), and the evidence obtained by the seizure was not properly received over the objections interposed by defendant. This case is controlled in defendant’s favor by the very recent rulings of this court in Allen v. State, 183 Wis. 323, 197 N. W. 808 [39 A. L. R. 782], Jokosh v. State, 181 Wis. 160, 193 N. W. 976, and State v. Warfield, 184 Wis. 56, 198 N. W. 854, and we shall not go over the same ground again here. The recent decision by the United States Supreme Court on March 2, 1925, of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 [39 A. L. R. 790], and of Steele v. United States, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757, decided April 13th do not militate against this holding.”

In the case of State v. Munson, 111 Kan. 318, 206 Pac. 749, the Supreme Court of Kansas said:

“The subject of what constitutes corporeal possession was discussed in the opinion in the case of State v. Metz, 107 Kan. 593, 595, 193 Pac. 177. In this instance, possession may not be attributed to the defendant, because an essential element of possession is lacking. The person having custody simply handed the liquor to the defendant to take a drink. The liquor was accepted for that purpose only. The quantity appropriated, if any, was consumed by the act of appropriation, and the remainder, if any, was not held under any continuing, claim to exclusive use.”

It is an admitted fact that the officer knew nothing of the contents of the bottle when he seized the same.

The possession without an intent to sell or convey does’ not constitute an offense any more than an intent to sell or convey without possession would constitute an offense.

The course of conduct of this zealous, eagle-eyed officer of the law, on the eve of Christmas, calls to mind the following lines,

“Man, man, proud man,
Clothed with a little brief authority,
Cuts such antics before high heaven,
As make angels weep.”

In our opinion, the evidence is insufficient to show defendant’s possession of the liquor in question, and assuming possession to be shown, the amount seized being less than a pint, there would be no presumption of intent to violate the liquor enforcement act.

It follows from what has been said that the court erred in refusing to advise the jury to return a verdict of not guilty.

Because the conviction is contrary to law and to the evidence, the judgment of the lower court is reversed, and the case is remanded, with direction to dismiss, and costs occasioned by this appeal taxed to the county of Woods.

DAVENPORT, P. J., concurs. EDWARDS, J., dissents.


text:
    IRL ROSE v. STATE.
    No. A-8939.
    Oct. 25, 1935.
    Rehearing Denied Jan. 31, 1936.
    (53 Pac. [2d] 1199.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of manslaughter, and his punishment assessed at a term of four years in the state penitentiary.

A copy of the record and case-made was filed in this court on the 18th day of June, 1935. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict. The case is therefore affirmed.