author: PER CURIAM.

text:
    Ex parte J. B. DILBECK.
    No. A-7088.
    Opinion Filed Oct. 4, 1928.
    (270 Pac. 858.)

      Jesse L. Ballard and Richard L. Wheatley, for petitioner.
    Edwin Dabney, Atty. Gen., J. H. Lawson, Asst. Atty. Gen., and Clay M. Roper, Co. Atty., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus. The petition with the exhibits attached and the stipulation of facts discloses the following: That there was filed in the office of a justice of the peace at Yinita, Craig county, a criminal complaint charging petitioner with felony, the uttering of a forged check. A warrant was issued; petitioner was arrested and arraigned before such justice sitting as a committing magistrate. Petitioner thereupon filed an affidavit for a change of venue under the provisions of sections. 2485 and 2966, Comp. St. 1921. Upon the filing of such affidavit, the justice made an order granting a change of venue to the county court. The papers and files with a transcript of the proceedings in the justice court were then transmitted to, filed, and docketed in the county court. Thereafter the county judge sitting as a committing magistrate held a preliminary, and upon such examination made a finding of probable cause, and ordered petitioner held for trial in the district court, and fixed the bond of petitioner at $1,000, and transmitted his order, the record, files, and a transcript of his action to the district court, and an information has been filed there. Petitioner in default of bond was remanded to the custody of the sheriff, who is holding petitioner in the jail of Craig county. Petitioner asserts that his restraint is illegal; that the justice before whom the original complaint was filed was without authority to change the venue to the county court; that such change of venue must be to some other justice of the county.

Where the court has general jurisdiction of the offense charged, and such .jurisdiction is challenged by reason of some claimed irregularity in the proceedings, the proper practice is to present the question to the lower court by appropriate motion or other pleading, and, if the ruling there is adverse, to preserve the question, and, if accused is convicted, to bring the question to this court by appeal. In matters of procedure, where the' court has general jurisdiction, irregularity in matters of proceeding cannot be raised here by habeas corpus prior to trial. See Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142; Ex parte Roberts, 21 Okla. Cr. 132, 205 P. 204; Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092.

The writ is denied.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JUNE DUNCAN v. STATE.
    No. A-6199.
    Opinion Filed May 26, 1928.
    Rehearing Denied October 5, 1928.
    (270 Pac. 335.)

      Ahern & Fitzpatrick, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction, rendered upon the verdict of a jury finding “the defendant, June Duncan, guilty of assault and battery with a deadly weapon, as charged in the information herein, and assess his punishment at confinement in the state penitentiary for the term of three years.”

The information charges that in Carter county, on or about the 3d day of September, 1923, “D. V. Duncan, June Duncan, and Porter Duncan, on the day and year aforesaid, did knowingly, willfully, unlawfully, and feloniously make an assault upon Howard Bigler with a certain knife, said knife being then and there a deadly weapon, in the hands of them the said D. V. Duncan, June Duncan, and Porter Duncan, and did then and there with said knife strike, cut, and stab the said Howard Bigler in and upon the back and body in a manner reasonably calculated to produce death, with the unlawful and felonious intent then and there' to kill the said Howard Bigler,” contrary to, etc.

It appears from the record that the original information filed November 7, 1923, charged that on or about the 3d day of September, 1923, the said defendants did unlawfully, willfully, .and feloniously, with the felonious intent to kill, cut and wound the body of Howard Bigler with a certain knife. The cause was called for trial on the 31st day of September, 1925, at which time the defendants asked for a severance, which was granted, and the state elected to try the defendant, June Duncan, and he was found guilty of felonious assault as charged in the information, and the punishment was left to the court. The defendant filed a motion for a directed verdict, also a motion in .arrest of judgment, which motions were overruled. The defendant also filed a motion for a new trial, which motion was by the court sustained, after which the court directed -the county attorney to amend the information. The amended information was filed. Upon arraignment, the defendants pleaded not guilty. On January 22, 1926, the case was called for trial. The defendants asked for a severance, which was granted, and the state thereupon elected to try the defendant, June Duncan.

Thereupon this defendant interposed a special plea of former jeopardy on the ground' that he had been placed in jeopardy by the verdict and judgment as rendered by the court upon the former trial, which plea of former jeopardy was by the court overruled, and this ruling is assigned as error.

We are of opinion that there is no merit in this assignment. It is the well-settled doctrine in this state that a new trial granted on the motion of a defendant in a criminal case places the party accused in the same position as if no trial had been had. Section 2753, Comp. St. 19-21. Upon such new trial the defendant may be tried and coinvicted of any offense embraced within the information, though of a higher grade than that of which he was found guilty at the first trial. Watson et al. v. State, 26 Okla. Cr. 377, 224 P. 368.

When a new trial is granted a defendant on his own motion, he thereby waives his constitutional right to interpose the plea of having been once in jeopardy.

- The Legislature has the constitutional right to prescribe conditions upon which a new trial shall be granted to a defendant who has been convicted of a crime, and the statute (section 2753) which provides that “the granting of a new trial places the parties in the same position as if no trial bad been had” is not unconstitutional. Watson et al. v. State, supra.

It follows from what has been said that the plea of former jeopardy was properly overruled.

The following brief statement of the facts will be sufficient to make clear other contentions made:

On the date charged in the information Howard Bigler was working on a Ford car, parked in an alleyway between two buildings in the town of Wirt, when another car in which the defendant and his brother and father were riding turned in the alleyway. As it passed the car on which Bigler was working, the Duncan car bumped the Bigler car,' but no material damage was done to either car. Some words passed between Porter Duncan and Howard Bigler, there being some conflict in the evidence as to just what was said; and, after the Duncan car had moved on past the Bigler car, Porter Duncan stopped his car, and the Duncans all got out. Porter Duncan and Howard Bigler then engaged in a fist fight. Porter Duncan finally knocked Howard Bigler down, and at, that state Harry Bigler, • brother of Howard, went in to take up the fight with Porter Duncan.D. V. Duncan, father of Porter and June, who had up to that time been holding June Duncan out of the fight, released the defendant, and went to the assistance of Porter Duncan in his fight with Harry Bigler. It was- while the senior Duncan and Porter Duncan were engaged with Harry. Bigler, and while Howard Bigler, as all the. evidence shows, was still where he had fallen after being knocked down by Porter Duncan, and was then trying to arise, that the defendant, June Duncán, stabbed Howard Bigler with a pocketknife.

There was some evidence on the part of the defense tending to show that Howard Bigler had a piece of wood in his hand as he arose, and the defendant claims that he was trying to prevent Bigler from striking Porter Duncan when he stabbed him. There is abundance of evidence to the effect, however, that Porter Duncan was about 20 feet away from Howard Bigler at the' time he was stabbed by June Duncan, and that Howard Bigler had not regained his feet at the time he was stabbed. There is some evidence also to the effect that he was still dazed from the blow of Porter Duncan, and was too weak to get up; that Howard Bigler’s age at the time was 16 years; that he was stabbed in two places by the defendant; that both wounds were deep; and that they almost proved fatal, it being necessary for him to remain in a hospital for two months before his recovery.

Counsel for the defendant contend that the defendant was found guilty of an offense not charged or included in the information.

It will be observed that the acts constituting the offense of “assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death,” are set forth in the information.

The information is also sufficient to charge a violation of the included offenses defined by sections 1757 and 1764 of the Penal Code (Comp. St. 1921). Clemons v. State, 8 Okla. Cr. 452, 128 P. 739.

The record shows that the sufficiency of the information was first challenged by a motion in arrest of judgment, which motion was properly overruled.

It is also contended that the court should have instructed the jury, not only on the law of felonious assault, but on the law of assault and battery.

No objection was made or exception taken to the instructions given by the court, and they fairly presented the entire law of the case. If the defendant was not satisfied with the instructions given by the court, he should have submitted such request for instructions as he desired. Where no request for instructions are made, it is not reversible error to fail to instruct upon any particular issue.

In the case of Gidens v. State, 31 Okla. Cr. 137, 236 P. 912, we said:

“Whether an instruction upon all the minor degrees of the offense should be given depends upon the evidence, and where, as in this case, the evidence shows that the assault was made with a sharp knife, inflicting a wound that almost proved fatal, having none of the attributes of a simple assault or of a naked assault and battery, an instruction pertaining to simple assault or mere assault and battery is unnecessary.”

The defendant, from all that the record discloses, had a fair trial. There are some conflicts in the evidence, but they were for the jury to reconcile. Upon a consideration of the whole case, no reversible error is found, and the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    CHARLIE (C. D.) WEEKS v. STATE.
    No. A-6489.
    Opinion Filed Oct. 6, 1928.
    (270 Pac. 858.)
    G. V. Pardue, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Charlie D. Weeks, hereinafter called the defendant, was convicted on an information charging that he did have in his possession 15 gallons of com whisky, with the unlawful intent of selling the same, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. From the judgment he appeals, and assgns as error:

“First. That the court erred in refusing to grant the plaintiff herein a new trial, and in overruling the plaintiff’s motion for a new trial.”

To understand the first error assigned it is necessary to refer to the evidence. The state introduced two witnesses — W. W. Holder, testifying that he lived in Wilson; that he was city constable; that he knew 'Charlie Weeks; that he went to the defendant’s place on the 14th day of March, 1926; that Jess Salyers accompanied him. Witness identified the paper marked “Exhibit A” as being the search warrant complaint, and stated that it described accurately the place to be searched. Witness also identified State Exhibit B, and stated it was the search warrant he had when he searched the defendant’s home. Witness stated the search warrant was delivered to him upon the making of the affidavit. Witness testified they found about 15 gallons of whisky in defendant’s house, Jess Salyers testified, in substance, to the same facts as did the witness Holder.

The state offered in evidence the affidavit for the search warrant and the search warrant, which had. been marked “State’s Exhibits A and B,” and defendant objected to the introduction of the same, which objection of the defendant was overruled, and defendant duly excepted. The affidavit, omitting the formal part, reads:

“W. W. Holder, of lawful age, being duly sworn, on oath, deposes and says: That in Carter county, state of Oklahoma, on the 14th day of March, 1926, the above-named defendant Charlie Weeks at number - street, in a certain building described as follows : A one story building, about 400 yards south of the Nyanza Refinery & about 1 mile south of Wilson in Carter county, did, then and there unlawfully have in their possession and under their control, and do now keep for the purpose of selling, bartering, giving away and otherwise furnishing certain intoxicating liquors, described as follows, to wit: Whisky, beer and wine, and other compounds, the same being intoxicating, and which are capable of being used as a beverage, in violation of law, contrary to the form of the statutes in such cases made and provided against the peace and dignity of the state of Oklahoma.
“That the aforesaid premises is a warehouse and storage room, and under the supervision and control of said defendant.
“That the aforesaid premises is a business establishment operated under the supervision and control of said defendant.
“That the aforesaid premises is a place where the public resort.
“That persons frequent said premises at all hours of the day and nighttime.
“That persons have been seen to come from within and upon said premises with the odor of intoxicating liquor upon their breath, and in an intoxicated condition.
“That the aforesaid premises bears the reputation of being a place where intoxicating liquors may be purchased in violation of the statutes of Oklahoma.
“That the aforesaid defendant bears the reputation of being a person from • whom intoxicating liquors may be purchased in violation of the statutes of Oklahoma.
“That lawful search has heretofore been made of the premises under the control of said defendant and intoxicating liquor found, possession of the same being in violation of the statutes of Oklahoma.
“That the aforesaid premises further bears the reputation of being a place where intoxicating liquors are distilled and manufactured in violation of the statutes of Oklahoma.
“That the aforesaid premises is a place for the storage of intoxicating liquors in violation of the statutes of Oklahoma.
“That said defendants, or either of. them, not being duly appointed, qualified and acting superintendent of the state dispensary, or local dispensary, as provided by law.”

The recitals of the search warrant, which is marked as “State Exhibit B” are substantially the same as the affidavit. The allegations of the affidavit tend to establish facts very material as against the defendant, and put in issue the defendant’s character. Williams v. State, 34 Okla. Cr. 359, 246 P. 895.

We hold that in admitting the affidavit for the search warrant and the ' search warrant the court erred. The view we take of this record makes it unnecessary to consider the other questions in the case.

The case is reversed.

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


text:
    WILL BRYAN v. STATE.
    No. A-6497.
    Opinion Filed Oct. 6, 1928.
    (270 Pac. 860.)

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

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of McIntosh county with unlawfully and wrongfully interfering with, cutting, defacing, and injuring a Ford touring car, and was sentenced to pay a fine of $75 and to be confined in the county jail for 30 days. Motion for new trial was filed and overruled. Defendant duly excepted and has appealed to this court for review.

The testimony on behalf of the state shows that the witness Jess Parker and some other officers had arrested some parties for disturbing church and started to the county seat with them; when they reached a point on the road known as Simpson mountain, the car stopped and they were trying to ascertain what the trouble was, and while stopped one of the prisoners got away; they, took the other prisoner out to the side of the road and waited for some time; shortly thereafter this defendant and some one else came up to the car, and the defendant struck a match and lit a cigarette. The witness Parker identified him. They cut several holes in the casing on the •car and took the coils out, and in every way possible injured the car. The witness positively identified the defendant as being one of the parties Who cut the casings and took the coils out of the car.

The defendant in his own behalf denies any knowledge of the injury to the car, and denies that he was present; he admits he was at the arbor where the church services were being held the night of the alleged offense where Jess Parker, the witness for the state, arrested his brother and a man by the name of Mullinax.

The defendant has assigned 18 errors alleged ,to have been committed by the trial court, but in his brief he states that he will rely upon two assignments of error, which are as follows:

“(1) The verdict returned by the jury in this cause is and was not supported by the evidence.
“(2) That the verdict returned by the jury in this cause is contrary to the law and evidence.”

The testimony in this case in conflicting. The state witnesses swearing positively to seeing the defendant take part in cutting the casings on the car and helping remove the coils. The defendant denies that he was present.

The weight of the evidence, as well as the credibility of the witnesses, are matters for the exclusive determination of the jury. Where there is a clear conflict in the evidence, as in this case, this court will not substitute its judgment on the question of the weight of the evidence for that of the jury, provided there is compétent evidence from which the jury may reasonably conclude the defendant was guilty of the crime charged. Davis v. State, 10 Okla. Cr. 169, 135 P. 438; Brimmage v. State, 17 Okla. Cr. 205, 187 P. 497; Murnand v. State, 18 Okla. Cr. 426, 195 P. 787; Cole v. State, 18 Okla. Cr. 430, 195 P. 901.

Finding no prejudicial error in the record, the case is affirmed.

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


text:
    HERB HIATT et al. v. STATE.
    No. A-6218.
    Opinion Filed Feb. 11, 1928.
    Rehearing Denied Nov. 17, 1928.
    (271 Pac. 431.)
    A. W. Anderson and D. E. Ashmore, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that Herb Hiatt, Homer Hart, and W. M. Brannon did have in their possession certain intoxicating liquors, to wit, 19 gallons of corn whisky, with the unlawful intent to sell the same. The record shows that when the case was called for trial, the defendant Homer Hart not appearing, his bond was forfeited. Appellants filed a motion for continuance by reason of the absence of said codefendant, Homer Hart, a material witness in their behalf, which motion was properly overruled.

A motion to suppress the evidence was also filed on the ground that the evidence in making the arrest and seizure was illegally obtained because said officer was not armed with a warrant of arrest and did not have a proper search warrant, which motion was overruled.

The testimony of George Lutes, deputy sheriff, shows that smoke out in the woods three or four miles south of Henryetta attracted his attention, and thinking lit was possibly from a still went over there and noticed Homer Hart’s car parked in a hollow; that he walked up the hollow and Homer Hart and Herb Hiatt were walking off from where there was some whisky and empty barrels. Hart had the still on his back and Hiatt had the worm, carrying it up the hill from where a run of whisky had been made, the) fire was still there, and nearby he found 19 gallons pf whisky in 5-gallon glass bottles and kegs. Hart and Hiatt were going away from the place and were about 20 to 30 yards from where the whisky was. W. M. Brannon was standing near the whisky and the barrels; that he called to Hart and Hiatt that they might as well bring their loads back, and Hiatt said, “Who in hell sent for you?”

At the close of the evidence for the state, there was a demurrer to the evidence on the ground that the same is insufficient to support a conviction, which was overruled. It is urged that the evidence is not sufficient to sustain the verdict, because it fails to show that the contents of the vessels seized were corn whisky or intoxicating liquor. The witness testified that the contents of the bottles and kegs was corn whisky. Corn whisky is presumed to be intoxicating Without further evidence of that fact.

The contention that the evidence was obtained by an illegal search and seizure is not well taken. liquor found in thickets and waste places, remote from the residence of the accused, may be seized without search warrant and used in evidence. Fullingame v. State, 35 Okla. Cr. 154, 249 P. 166.

The instructions of the court fully covered the law of the case. Upon a consideration of the whole record, we find that the defendants had a fair trial. The judgments appealed from are therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    HUGH KELLY v. STATE.
    No. A-6186.
    Opinion Filed May 5, 1928.
    Rehearing Denied Nov. 17, 1928.
    (271 Pac. 432.)
    Howe & Howe and Warren & Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

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

The defendant and Richard Harkins were jointly charged with the murder of Elmer Coker. The following state of facts appear: On the date charged defendant and Harkins, who are brothers-in-law, went in a restaurant at Ft. Towson. Elmer Coker was there, and used some abusive language toward Harkins. He then went to another restaurant, and Harkins and defendant shortly after went to the place where Coker was. Harkins called him out, some words were passed, and Coker struck Harkins with his fist. Harkins moved a few Steps to where defendant Was, and apparently procured from him a pistol, then got behind a bystander, one O’Keefe, and shot Coker through or near the heart, from which he died in a few minutes. There is evidence that indicates that after shooting he returned the pistol to defendant. A severance was had. Harkins was tried, convicted, and his conviction affirmed. Harkins v. State, 37 Okla. Cr. 50, 256 P. 64. In the instant case, Harkins testified for defendant that the difficulty occurred substantially as stated, and that, after he was struck by Coker, some one, he did not know whom, handed him a pistol, with which he fired the fatal shot. Defendant denied that he furnished the pistol to Harkins.

•Counsel for plaintiff in error in their brief contend that the evidence is insufficient; that the court admitted incompetent evidence offered by the state, and excluded competent evidence offered by defendant; that the demeanor of the court was hostile to defendant, and conveyed to the jury the belief of the court of defendant’s guilt.

We have examined these assignments of error and the argument and authorities cited in support, and, without discussing them in detail, are clearly of the opinion that no prejudicial error is made to appear in the record. It is probable the court restricted too closely the cross-examination by defendant’s counsel in one or two instances, but the restriction was upon matters of detail and of no substantial importance.

Under the entire record, including the testimony of defendant and his witnesses, defendant is clearly guilty of manslaughter in the first degree, and the punishment assessed shows that the slight errors occurring at the trial were not prejudicial.

The case is affirmed.

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


text:
    E. A. STANLEY et al. v. STATE.
    No. A-6055.
    Opinion Filed May 19, 1928.
    Rehearing Denied Nov. 17, 1928.
    (271 Pac. 432.)
    Whiteside & Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error were tried and convicted on an information charging that in Greer county, on or about the 10th day of June, 1325, they did have in their possession in the town of Granite, in said county, a still worm for the purpose of, production of, and distillation of, alcoholic liquors, and in accordance with the verdict of the jury were each sentenced to be confined in the county jail for 30 days and to pay a fine of $50.

From the judgments rendered on the verdict they appealed.

The errors assigned and relied upon for a reversal of the judgment are as follows: That the court erred in admitting evidence obtained by an unlawful search without a search warrant, and erred in overruling the defendant's motion for a directed verdict of acquittal.

The evidence for the state, which was all the testimony in the case, shows that the three defendants on the day charged were in a Buick roadster, which was wrecked near the town of Granite.

C. W. Carpenter, deputy sheriff, testified that he observed a still worm in the back of the car, covered with something like a wagon sheet, and he took it out of the car; then he found some yeast cakes in the car; that he arrested the defendants, and brought them to Mangum; that about five inches of the copper pipe was sticking out from under the sheet when he first saw it.

Several witnesses testified that the pipe and coil and still worm seized were similar to those used in manufacturing distilled liquors. The defendants did not testify.

The contention of plaintiffs in error is that the search of their automobile was illegal, therefore unreasonable, and violative of the rights guaranteed to them by section 30, art. 2, of the state Constitution, because the officer had no warrant for their arrest and no search warrant directing the search of the automobile.

When a violation of any provision of the Prohibition Enforcement .Act (Comp. St. 1910, sections 7002-7039) shall occur in the presence of any officer having power to serve criminal process, it shall be the duty of said officer, without a warrant, to arrest the offender and seize the liquors or utensils used, or intended to be used, in violation of said act.

It is undisputed that the offense here was committed in the presence of the officer who made the seizure, and for this- reason the motion to suppress the evidence was properly overruled. Our examination of the record leaves no doubt in our minds as to the sufficiency of the evidence to support the verdict. It also appears that one of the defendants, E. A. Stanley, is at this time a fugitive from justice.

It appearing that the defendants had a fair trial, the judgments appealed from are affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    STATE v. W. T. BOWLING et al.
    No. A-6699.
    Opinion Filed Nov. 17, 1928.
    (271 Pac. 687.)
    A. N. Boatman, Co. A tty., for the State.
    L. A. Wallace, for defendants in error.
   PER CURIAM.

In this case the state attempted to appeal from the judgment of the superior court of Okmulgee county, Henryetta division, sustaining the defendant’s demurrer to- an indictment charging them with the alleged offense of criminal conspiracy.

The defendants in error filed a motion to dismiss on the grounds that said pretended appeal was filed in this court more than 60 days from the date of said judgment, and no order was made by the trial court extending the time Within which to appeal, and therefore this court has no jurisdiction to determine the questions involved in said pretended appeal, and that the trial court, at the time of sustaining the demurrer to the indictment, did not direct a resubmission of the case, or direct that a new information be filed, and said judgment is a complete bar to any further prosecution against the defendants in error for said alleged offense, and therefore the question raised by this intended appeal as to the sufficiency of said indictment has become a moot question.

The uniform holding of this court is that the appeal must be filed within the time fixed by the statute, otherwise this court acquires no jurisdiction of the appeal. Bandy v. State, 5 Okla. Cr. 397, 114 P. 341; Hamlin v. State, 12 Okla. Cr. 321, 155 P. 904; Danna v. State, 16 Okla. Cr. 114, 180 P. 869; Story v. State, 17 Okla. Cr. 237, 187 P. 508.

The Attorney General concedes the motion to dismiss is well taken. The attempted appeal herein by the state is therefore dismissed.


text:
    MARION CLEVELAND v. STATE.
    No. A-6884.
    Opinion Filed Nov. 17, 1928.
    (271 Pac. 863.)

      Starkweather & Manning, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error hereinafter called defendant, was convicted in the district court of Caddo county on a charge of bigamy and was sentenced to serve a term of 1% years in the state penitentiary.

The record is practically undisputed, and discloses that in July, 1925, the defendant, then 19 years of age, married a girl 16 years of age. This first marriage took place in Caddo county. A suit to annul was instituted, but the marriage was not annulled. In December, 1926, defendant, then 20 years of age, again married, this time in Grady county, Okla. He was subsequently arrested in Caddo county and charged with bigamy in that county, the charge being based on the second marriage, but the indictment alleges that it was entered into in Caddo county and further alleges that defendant lived with the person to whom he was married for a period of two weeks in Caddo county. .

The contention is made that the district court of Caddo county was without jurisdiction, since the marriage was solemnized in Grady county. Upon this contention the Attorney General has filed a confession of error, going into the question at length and in substance admitting that the district court of Caddo county is without jurisdiction.

The prosecution is under the provisions of section 1862, Comp. Stat. 1921, which defines bigamy as follows:

“Any person who having been married to another who remains living, marries any other person except in the cases specified in the next section is guilty of bigamy.”

None of the exceptions in the section following section 1862 have any application in this case. It will be noted from the definition of bigamy contained in this section that the act made criminal is the second marriage to another person by one who has another living husband or wife, as the case may be. The Legislature might have made the subsequent unlawful cohabitation bigamy as well as the unlawful second marriage. It has not done so, however, except in cases where marriage of divorced persons takes place within the period prohibited by the statutes. Chapter 119, Session Laws 1925. Cohabitation with the second spouse is not made a material part of the crime, and the allegation in the indictment in reference to cohabitation with the second spouse is surplusage. In 7 C. J. p. 1162, § 15, it is said:

“Cohabitation under the second marriage is not requisite, but the offense of bigamy is committed when the second marriage is solemnized.”

See, further, State v. Smiley, 98 Mo. 605, 12 S. W. 247; Beggs v. State, 55 Ala. 108; Cox v. State, 117 Ala. 103, 23 So. 806, 41 L. R. A. 760, 67 Am. St. Rep. 166; Scoggins v. State, 32 Ark. 205; Wilson v. State, 16 Okla. Cr. 471, 184 P. 603.

In the Arkansas case, which construes a statute identical with section 1862, supra, it was held:

“It is the marrying by a person who has a husband or wife living that constitutes the offense of bigamy under our statute, and the offense is complete upon the second marriage; subsequent cohabitation does not enter into it, or render it a continuing offense."

Since subsequent cohabitation under this statute does not constitute bigamy, the offense charged was not committed in Caddo county. Section 20, art. 2, of the state Constitution' in part provides:

“In criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.

The prosecution was instituted under the provisions of .section 2432, Comp. Stat. 1921, as follows:

“When the offense either of bigamy or incest is committed in one county and the defendant is apprehended in another, the jurisdiction is in either county."

If this section of the statute is valid and not in contravention of section 20, art. 2, of the Constitution, supra, the judgment might be upheld. It is fundamental, however, that under a constitutional provision which provides that a.defendant is entitled to a trial by a jury of the county in which the offense was committed, the attempt to confer jurisdiction of the prosecution to courts of another county is void. 8 R. C. L. p. 99, section 59. See, also, State v. Carroll, 55 Wash. 588, 104 P. 814, 133 Am. St. Rep. 1047, 19 Ann. Cas. 1234; Wilson v. State, supra; Ex parte Lucas, 33 Okla. Cr. 407, 243 P. 990; Smith v. State, 18 Okla. Cr. 603, 197 P. 712.

In the case of State v. Smiley, supra, the Supreme ‘Court of Missouri held:

“That clause of Revised Statutes 1879, section 1536, which authorizes the indictment of one charged with bigamy in’ any county in which he may be apprehended, is Unconstitutional.”

In the body of the opinion, the court said:

“The indictment is based on section 1533, and cohabitation is not made an element of the offense therein described. The offense was completed in Johnson county when the second marriage was solemnized. State v. Fitzgerald, 75 Mo. 572. The indictment should have been preferred by a grand jury of Johnson county, unless it can be upheld by force of the last clause of section 1536, namely, ‘Or in the county in which the offender may be apprehended.’ There can be no doubt but the allegations of the indictment are sufficient to bring the case within this clause.
“This clause has nothing to do with the elements of the offense, and relates alone to the place where the indictment may be found. Now under the Constitution of 1875, the indictment for a felony must be found by a grand jury of the county where the offense was committed. It was so ruled, after mature deliberation, in Ex parte Slater, 72 Mo. 102, and that ruling has been followed in subsequent cases. State v. McGraw, 87 Mo. 161, and State v. Briscoe, 80 Mo. 644. It follows that the clause of section 1536 just quoted is void, because in conflict with the Constitution of 1875, and it matters not that it might have been upheld under the Constitution of 1865. The indictment is worthless, for the Madison circuit court had no jurisdiction of the offense.”

In the case of Walls v. State, 32 Ark. 565, the Supreme Court of Arkansas, in construing a statute under the constitutional provision substantially the same as ours, said:

“The Legislature has no more power to provide that a man be ifndicted for bigamy in any county where he may be apprehended, regardless of the county in which the offense may have been committed, than it has to make a like provision as to murder, or any other crime. The constitutional provision is the paramount law, and cannot be disregarded. The second marriage being void, the parties might be indicted for adultery in any county where they might be found cohabiting as husband and wife, if the law so provided, but not for bigamy,”

Since the bigamous marriage was entered into in Grady county, defendant, was entitled to a “speedy and public trial by an impartial jury” of that county. He could not be prosecuted in any other county. The district court of Caddo county was without jurisdiction. It is unnecessary to discuss the other questions presented. Section 2432, Comp. Stat. 1921, is clearly in contravention of section 20, art. 2, of the Constitution.

The cause is reversed and remanded, with instructions to the district court of Caddo county to dismiss the case for want of jurisdiction and to direct the sheriff, of Caddo county, if defendant be in his custody, to deliver him to the proper officers of Grady county in order that he may be prosecuted in that county, if they desire to do so.

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


text:
    Ex parte FRED DUNNAVANT.
    No. A-7201.
    Opinion Filed Dec. 14, 1928.
    (271 Pac. 861.)
    W. N. Redwine, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The opinion filed November 19, 1928, is withdrawn and the following opinion filed:

Fred Dunnavant, petitioner avers that on the 11th day of March, 1928, by judgment of the superior court of Okmulgee county, he was convicted and sentenced to one year and one day, on a charge of adultery, and further sentenced by the court to pay the cost of the prosecution taxed at $58.30. The court awarded execution. The judgment further provides, if said costs are not paid, that said prisoner be confined for one day of each $1 until the costs are satisfied.

Petitioner alleges that he has served his time of one year and a day in the penitentiary, counting good time which has been given him under the laws of the state of Oklahoma, and under the rules and regulations of the prison; that the time of one year and a day, as provided in said judgment, expired on the 13th day of October, 1928, and that said prisoner is entitled to be released from said prison. Petitioner alleges that he is not financially able to pay the costs of $58.30.

It is further alleged by petitioner that the state of Oklahoma, through its warden of the state penitentiary, has no authority under the law to hold said petitioner in the penitentiary to serve one day for each $1 of the costs taxed against him; that the imprisonment now imposed against the petitioner, confining said petitioner in the said state penitentiary to serve said costs at $1 per day, is unlawful, null, and void, and said petitioner is unlawfully held without authority of law, and is entitled to be discharged from prison. Section 57, art. 5, of the Constitution of Oklahoma, provides as follows:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in (the) title, except, *■ * * general revenue bills: * * * Provided, that if any subject be embraced in any act contrary to * * * this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

It is urged by the petitioner that there is no law authorizing the confinement of a state convict in the state penitentiary to serve out the costs taxed against him. And it is further urged by petitioner that the only law in existence, providing for imprisonment of a person who has been convicted in any court to serve a term for the satisfaction of costs, where the same is not paid by the party convicted, appears in Session Laws 1913, p. 203, now section 6332 of the Compiled Statutes of 1921. The title to the said act reads as follows:

“An act to amend section 31(a) of chapter 69 of the Session Laws of 1910, providing for the working of county, city and town convicts upon public highways, rock piles, or other public work; for the imprisonment and working of such convicts upon the public highways in lieu of payment of fine and costs, and regulating the time of such imprisonment and work; repealing sections 2607 and 5290 of the Statutes of Oklahoma, 1893, and sections 41 and 42, of article ¿one (1), of chapter 32 of the Session Laws of 1909, and sections 885, 6917, 6918, 6921, 6922, 7068, and 7793 of Snyder’s 'Compiled Laws of Oklahoma, 1909, are hereby repealed; and declaring an emergency.”

Section 6332 was section 1 of the act contained in Session Laws 1913, at page 203, under the above and foregoing caption; and section 6332 being as follows:

“Section 31(a). 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 arid costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.”

It will be noted that the act repeals all former laws pertaining to serving time in prison for costs. The title of the act hereinabove referred to refers only to county, city, and town convicts, and makes no reference whatever to state convicts. 13 Corpus Juris, at page 912, says:

“State convicts embrace all that class of persons convicted of crime and sentenced to hard labor for the state in the penitentiary, within or without the walls. County convicts embrace all those sentenced to hard labor for the county, whether in or out of the county.”

Section 10154 gives the board of public affairs authority to contract with the county commissioners, and to make all necessary arrangements for working state convicts upon public highways of the state. It seems clear that our Legislature has drawn a distinction between the county and state convicts; that it has defined and classed county, city, and town convicts as county convicts, and those who have been sent to the penitentiary as state convicts.

It is clear, from reading the act known as House Bill 37, contained in Session Laws of 1913, page 203, that the title of the said act does not include state convicts, but only mentions county, city, and town convicts. The title of the act having defined the persons convicted, who are required to serve out their time in prison for costs, to be county convicts, we cannot read into the body of the act that the same would apply to state convicts. In our opinion, the title of the act has defined the class of convicts that may be imprisoned for fine or costs.

It is the opinion of this court that there is no statute requiring a state convict, after he has served out his term of imprisonment, to remain in the state penitentiary until he has served out the costs at $1 per day. The restraint of the petitioner by the warden of the penitentiary, for the payment of costs, is without authority of law. Any opinion heretofore rendered, in conflict with this opinion, is hereby overruled.

The writ is therefore allowed, and petitioner discharged.

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


text:
    ORBAN STEWART v. STATE.
    No. A-6359.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 959.)
    Orban Patterson, for plaintiff in error.
    Edwin Dabney, Atty. Cen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

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

It appears from the record that at the time charged defendant had assumed an indebtedness of $1.50 -owed by a relative of his to deceased. He entered a restaurant in Oklahoma City, where deceased was employed, and deceased demanded payment of the debt. ¡Some words followed, and defendant went out of the restaurant and was on the sidewalk in front. Deceased soon followed him out, and the quarrel was renewed. They clinched, and defendant cut deceased three times with a knife, from the effects of which he died. There was some evidence that deceased was intoxicated. The plea of self-defense was interposed.

Complaint is first made that the evidence leaves in doubt .whether deceased died from the effects of the knife wounds or from alcoholism. Except for the evidence that deceased was drinking, or was intoxicated, there is nothing to suggest that his death was due to alcoholism. This contention is without merit.

Next it is argued that one of the court’s instructions on self-defense is erroneous, in using the words “greater force,” instead of the words “unnecessary force,” in informing the jury of defendant’s right to repel an attack. No exception was taken to this instruction, nor was any request for additional instruction made, nor was the giving of it assigned as error in the motion for a new trial. The instruction is in the same language as No. 10 of the court’s charge in the case of Brantley v. State, 15 Okla. Cr. 6, 175 P. 51. It is not prejudicially erroneous.

It is also contended that the court erred in admitting a written confession made by defendant to the county attorney on the day following the homicide. The confession is sworn to before the court clerk, and it is here urged that, since the confession is sworn to, it is an involuntary statement. A few of the early authorities seem to hold that a statement of the accused made under oath is inadmissible. A confession is defined as a voluntary declaration, made by a person who has committed a crime, to another, acknowledging his agency or participation therein. 16 C. J. p. 715, section 1464; 1 R. C. L. p. 550, section 99. Confessions are judicial or extrajudicial. Judicial confessions are those made in conformity to law, before a committing magistrate, or in a court in the course of legal proceedings. Extrajudicial confessions are those made by a party elsewhere than before a magistrate or in court. 16 C. J. p. 716, section 1465; 1 E. C. L. p. 551. The confession introduced in evidence in this case is extrajudicial. 1 R. C. L. p. 569, section 104, states the general rule thus:

“An extrajudicial confession otherwise admissible is not rendered inadmissible by virtue of the fact that it was made under oath, the confessor being in no sense a witness and there being no statute. excluding such a confession. Accordingly the fact that the confession was taken down in writing and was sworn to by the accused does not affect the admissibility thereof. * * *”

In the case of People v. Owen, 154 Mich. 571, 118 N. W. 590, 21 L. R. A. (N. S.) 520, it is said:

“The fact that the confession was made under oath does not change it from a confession into a deposition in a judicial proceeding, prohibited by section 32, art. 6, Const. Respondent was no more a witness against himself by making a confession under oath without objection, than he would háve been by making a confession without an oath. Respondent was not compelled to be a witness in ‘any criminal case against himself.’ No case was pending. No complaint had been made. He had not been charged with any crime. True he had been caught ‘red-handed’ in attempting to take the life of a human being, and was promptly arrested. Within a few moments thereafter, he made the confession of an act, the commission of which was not in dispute. The administering of the oath was a circumstance which the jury might consider, in connection with the other circumstances, in determining what effect they would give to the confession. To me it is entirely plain that the constitutional provision does not include statements or confessions by one suspected of, or charged with, the crime, when the confession is not made in the course of a judicial procedure. Had a complaint been made, and the respondent brought before an examining magistrate, and had he then been asked under oath the questions the respondent in this case was asked, it might well be held to be within the constitutional prohibition. The authorities recognize this distinction. That a confession under oath is admissible is held by the following authorities: Com. v. Wesley, 166 Mass. 248, 44 N. E. 228; Schoeffler (Shoeffler) v. State, 3 Wis. 823; Com. v. Clark, 130 Pa. 641, 18 A. 988; State v. Legg, 59 W. Va. 315, 3 L. R. A. (N. S.) 1152, 53 S. E. 545; United States v. Brown (D. C.) 40 F. 457. * * *”

There is nothing in the record before us which indicates that the confession was involuntary. In the trial of this case, defendant took the stand in his own behalf, but did not testify that the confession was involuntary, and his testimony was not materially variant from his confession. No reason for a reversal is apparent.

The case is affirmed.

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


author: EDWARD'S, J.

text:
    BILLIE WILSON v. STATE.
    No. A-6341.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 959.)
    John A. Maupin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst, Atty. Gen., for the State.
   EDWARD'S, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of burglary in the first degree, and was sentenced to serve a term of seven years in the state penitentiary.

This is a companion case to No. A-6347, Harris v. State, 41 Okla. Cr. 121, 271 P. 957, just decided. Defendant was jointly charged, and the evidence and the questions, presented on appeal are substantially the same. The opinion in that case determines the questions raised here. No additional or further question of any material importance is presented.

The case is affirmed.

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


text:
    RALPH HARRIS v. STATE.
    No. A-6347.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 957.)
    Parrick & Harley, for plaintiff in error.

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

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of burglary in the first degree and was sentenced to serve a term of seven years in the state penitentiary.

The facts disclosed by the record are about as follows: In the .nighttime on the date charged defendant and Billie Wilson, young men of Oklahoma City, broke into and entered a garage which was connected with and formed a part of the dwelling house of C. H. Ruth. The entrance was made by breaking a lock and entering a door. Defendant was captured at the time, but Wilson made his escape and was apprehended a few days later. The breaking and entering of the building is admitted.

The contentions made all go to the sufficiency of the evidence to establish burglary in the first degree and to error of the court in his instructions and in refusing requested instructions on this point. Defendant’s requested instruction No. 1, in substance, tells the jury that, before a conviction can be had, they must find the building broken into was actually a part of the dwelling house or residence and was immediately connected and used therewith as a part of it. Request No. 2 tells them that it is a question of fact to be determined by the jury whether or not the building was a residence. The court upon this point gave the following instruction:

“You are charged that under the law burglary in the first degree as embraced in this information is as follows: Any person who breaks into and enters in the nighttime the dwelling house of another in which there is at the time some human being with intent to commit some crime therein, either, first, by forcibly bursting or breaking the wall or an outer door, window or shutter of a window of such house, or of a lock or bolts of such door or the fastening of such window or shutter, or second, or the breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present, or third, by unlocking an outer door by means of false keys or by picking the locks thereof, or by lifting a latch or opening a window.
“You are further instructed that by the term dwelling house as used in these instructions is included all buildings attached to and used in connection with the house usually lived in.”

The statute under which defendant was prosecuted is section 2059, Comp. Stat. 1921, which reads:

“Any person who breaks into and enters in the nighttime the dwelling house of another, in which there is at the time some human being with intent to commit some crime therein, either,” etc.

A dwelling house is defined by section 2067, Comp. Stat. 1921, as follows:

“The term ‘dwelling house’ as used in this article, includes every house or edifice, any part of which has usually been occupied by any person lodging therein at night, and any structure joined to and immediately connected with such a house or edifice.”

The undisputed evidence upon this point is that the garage broken into had an opening through its wall into the basement of the dwelling house of the prosecuting witness, with steps leading up from the basement to the upper floor of the dwelling house. One of the walls of the garage is also the Wall of the house. The opening from the garage into the basement was unfinished and was not the full height of a person, and could not be used except in a stooping position, but was occasionally used in going from the dwelling house into the garage. There was nothing to prevent any person in the garage from going through this opening into the basement and thence by the stairway to any part of the dwelling house. The garage so situated clearly is a structure joined to and immediately connected with the dwelling house and forming a part thereof. The breaking and entering this garage with the essential intent constitutes burglary in the first degree. Simpson v. State, 5 Okla. Cr. 57, 113 P. 549; 9 C. J. p. 1023, par. 32.

The requested instructions do not state the law with strict accuracy, nor is the instruction of the court strictly accurate, but under all the evidence and the record it is not misleading.

There is no question of defendant’s guilt. Such errors as appear do not require a reversal. There is no miscarriage of justice.

The case is affirmed.

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


text:
    W. J. SNELLING v. STATE.
    No. A-6074.
    Opinion Filed July 21, 1928.
    Rehearing Denied Nov. 24, 1928.
    (271 Pac. 687.)
    Hussey & Conner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Till,man county on a charge of unlawfully transporting whisky, and was sentenced to pay a fine of $500 and to-serve six months in the county jail.

At the time charged, defendant was apprehended in an automobile upon the highway in which were two five gallon jugs of whisky. Two informations were filed— one charging possession with the intent to violate the prohibitory liquor law; the other, the information in this case, charging the transporting of the same whisky. The possession case was first tried, a conviction resulted, and defendant appealed to this court, 30 Okla. Cr. 280, 235 P. 943, which was reversed and remanded. Thereupon the state elected in the instant case to try defendant upon the charge of transporting. Defendant pleaded not guilty, and filed what is designated a motion to quash and dismiss, but which in effect is a plea of former jeopardy by reason of the former trial upon the information charging possession. The two charges being for the same act and transaction, the defendant may be put in jeopardy upon only one, and the state may elect upon Which of the two charges it will rely.

When the former conviction was reversed and remanded upon appeal, it stood as if no trial had been had, and the state might then elect upon which of the two in-formations it would rely. The trial of this case constitutes an election, and a conviction or acquittal constitutes a good plea in bar to the charge of possession. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 8 Ann. Cas. 300; Watson v. State, 26 Okla. Cr. 377, 224 P. 368.

It is argued at some length that the court erred in refusing certain instructions requested by defendant. The evidence discloses that at the time defendant was apprehended he was driving an automobile containing two five-gallon jugs of whisky. With him was one Jess Walker, a negro laborer. Defendant sought to show that the whisky belonged to Walker, and that he was not aware it was in his automobile. He testified that, as the. officers approached the car, Walker informed him of the whisky, and that he became agitated and speeded the car, and that such did not constitute an intentional conveyance of whisky. The requested instructions embody this theory, and defendant insists that he was entitled to have the jury instructed, in substance, that an intent to convey was essential to constitute the offense. Even if the evidence is true, the testimony of defendant discloses that, after being informed that Walker had whisky in the car, he continued to transport it.

It is further argued that the county attorney was guilty of misconduct in his argument. In the course of the argument, the county attorney stated that the records show that one of the counsel appearing for defendant was the judge who tried a case involving the same transaction and approved the verdict of the jury. Considerable of the argument is set out, which we have examined with care, and this is the only part that is at all objectionable. The former trial had been referred to in the evidence; the motion to quash or plea of jeopardy set out in the record is as stated by the county attorney. This is not so materially prejudicial as to require a reversal.

.Some other matters are touched upon in the briefs, but none are of sufficient importance to require special discussion.

It is urged that the maximum punishment is excessive; that the offense is not so aggravated as to justify the punishment assessed. Justice requires that the judgment be modified by reducing the period of confinement to sixty days in the county jail, the fine to remain as assessed by the court.

As modified, the case is affirmed.

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


text:
    JAMES WILLIAMS v. STATE.
    No. A-6355.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 856.)
    H. M. Carr, and I. H. Lookabaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county on a charge of manslaughter in the first 'degree and his punishment fixed at imprisonment in the state penitentiary for a term of 25 years.

Counsel for defendant have filed a brief consisting of one typewritten page, which sets out five assignments of error without making any argument or citing any authorities in support of the assignments and practically doing no more than stating. them. Rule 7 of this court is as follows:

“The brief of plaintiff in error shall contain: First: a concise abstract, or statement of the case, presenting succinctly the questions involved and the manner in which they are raised. Second: A specification of the errors relied upon, specifically and particularly setting out each error asserted and intended to be urged. When the error alleged relates to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected, stating specifically the objections thereto. When the error alleged relates to the instructions of the court the specification shall set out the part referred to in totidem verbis, whether it be instructions given or instructions refused. Abstracts shall be indexed and shall refer to the pages of the record. Third: A brief of the argument, exhibiting a clear statement of the point of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. In citing cases from the courts of this state, counsel are required to cite volume and page of the official state reports in which the case is reported.”

This rule is not complied with by the brief filed, but owing to the gravity of the case, we have read the record carefully and have considered the assignments set out.

The record discloses that on the date charged defendant and his brother-in-law, Jones, were at work near a public highway when Harry Johnson, with a loaded wagon, drove up. Johnson either stopped or was stopped by defendant and his brother-in-law, Jones, and a difficulty followed. Johnson, while on his wagon, was assaulted by Jones with a club and was struck twice and either fell off or jumped off of the wagon, and a shooting between defendant and Johnson followed, in which Jones was shot in the head. Defendant had a slight bullet wound in the left hand. Johnson was shot six times, two of the wounds being in the back. From this shooting he died almost immediately.

The evidence of defendant tended to sustain the theory that Jones and Johnson, the deceased, engaged in a difficulty, and that he approached for the purpose of stopping the difficulty when Johnson advanced on him, with a pistol, threatening to kill him and did wound him in the hand, and that he thereupon wrested the gun from Johnson and fired at him until the pistol was empty. This defense presents a controverted question of fact which was submitted to the jury, which evidently did not believe this testimony. It was within the province of the jury to determine whom they would believe or disbelieve. No material error is shown, and no reason is apparent why this court should disturb the verdict.

The case is affirmed.

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


text:
    ANDREW HOUSER v. STATE.
    No. A-5787.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 857.)

      B. C. Wieck and J. E. Burns, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Andrew Houser, hereinafter called the defendant, was in the district court of Kay county, Okla., March 26, 1924, charged with the murder of Howard Fleming. On a trial by a jury a verdict finding the defendant guilty of manslaughter in the first, degree and fixing his punishment at imprisonment in the state penitentiary for a term of 20 years was rendered. Motion for a new trial was filed and overruled, and defendant duly excepted.

A number of errors are assigned and argued. It is deemed necessary to make a brief statement of the evidence introduced by the state and the defendant. The undisputed evidence shows that the defendant and the deceased were not acquainted; that the evening of the killing the defendant went to the Central Rooms in Three Sands, in Kay county, for the purpose of calling the proprietor, a Mr. Hanks, who wanted to ride with the defendant to Ponca City, in his car. Upon entering the rooms, the defendant stopped at the first door which was open, and made inquiry for the proprietor. He learned the proprietor was not in the room, but the deceased asked him to come on and take a drink, and, when defendant refused, he became angry, and grabbed the deceased by the neck, and was holding him, indicating to him that he wanted to force some whisky down his throat; that defendant knocked the bottle of whisky out of deceased’s hands, and attempted to leave the room, but was caught by the deceased, and, while the deceased was holding him by the throat, and was forcing the defendant against the wall, and had jammed his head against the wall several times, the defendant drew his pistol, and struck the deceased once or twice on the head with the same. The deceased and defendant began scuffling, and the pistol was fired, and deceased fell, and died shortly thereafter. The testimony is not clear as to just what took place between the defendant and deceased, but it does show that the defendant struck the deceased one or more times to get loose from him, and that the deceased was either knocked loose, or he turned the defendant loose, and they became engaged in a scuffle over the pistol that defendant had been striking the deceased with.

The state’s testimony tends to show that the defendant shot the deceased while engaged in a scuffle with him. The testimony of the defendant is, in substance, the same as of the state, except it is the contention of the defendant that, when he entered the room, the deceased asked him to take a drink, calling him a vile name, and, when defendant declined to take a drink, the deceased undertook to pour the whisky into defendant’s mouth, caught the defendant by the throat, and was choking the defendant and battering his head back against the wall of the room. The testimony of defendant further tends to show that defendant drew his pistol and struck the deceased on the head and knocked him loose from him, and deceased grabbed hold of the pistol, and in the scuffle the pistol was discharged and killed the deceased. The defendant contends that he did not' intend to shoot the deceased, and that he did not do so, but that the pistol was pulled off in the scuffle in which the deceased and defendant were engaged, with no intention on his part to kill the deceased.

The first assignment urged by the defendant is that the court erred in admitting the transcript of the evídence of Alvin H. Cooper; he not being present to testify. As a predicate for this testimony, it appears that the state, in order to secure' the attendance of Alvin H. Cooper, had subpoenas issued and sent to different places where it was thought he was residing, and there failed to locate Cooper or secure any information as to his whereabouts. It is urged by the defendant that a sufficient predicate was not shown to warrant the admission of the witness Cooper’s testimony, taken in the preliminary hearing; in other words, that due diligence had not been used by the state in order to secure the attendance of Cooper as a witness. It is a well-established doctrine of this court that, where the testimony of the witness was given at a preliminary examination, and was taken down by the court reporter in the presence of the defendant, and where the defendant had an opportunity to cross-examine the witness, and such testimony was reported and filed with the clerk, the transcript of the witness’ testimony is admissible, where the witness is not present, and cannot be found in the jurisdiction of the court. Valentine v. State, 16 Okla. Cr. 76, 194 P. 254; Clark v. State, 25 Okla. Cr. 403, 220 P. 974.

The record in this case discloses that, when the subpoenas were issued for Alvin H. Cooper, one of them was directed to F. M. Fleming, Drumright, Okla., and that said F. M. Fleming was an uncle of the deceased, who was a constable at Drumright, Okla. There was no showing or return by the sheriff of Creek county that he had made any effort to serve a subpoena on the witness Cooper, or that he had been unable to find him within the county. We hold that the showing made by the state was insufficient to entitle the state to introduce the transcript of the testimony of the witness Alvin H. Cooper, taken at the preliminary trial, but, as the record discloses that the testimony of the absent witness was cumulative, and only tended to show there was a difficulty in the rooms where the killing took place, the admission of the transcript of the testimony was not sufficient error to warrant this court in reversing the case.

It is next urged by the defendant that there is no evidence to support the verdict rendered by the jury, and that the said verdict is contrary to all the evidence on behalf of the state and the defendant. The only conflict in the testimony is on the question as to whether or not the defendant, after he and deceased had engaged in a difficulty, shot the deceased, or whether or not, in the scuffle over the pistol, the gun was accidentally discharged. This question was properly submitted to the jury by the court. The jury are the sole and exclusive judges of the credibility of the witnesses and the weight and credit to be given their testimony. Where there is a clear conflict in the evidence as in this case, this court will not substitute its judgment on the question of the weight of the evidence for that of the jury, provided there is competent evidence from which the jury may reasonably conclude the defendant was guilty of the crime charged. Davis v. State, 10 Okla. Cr. 169, 155 P. 438; Cole v. State, 18 Okla. Cr. 430, 195 P. 901; Murnand v. State, 18 Okla. Cr. 426, 195 P. 787.

From an examination of the record, we find the evidence is sufficient to sustain the verdict. However, as the record in this case does not disclose any malice on the part of the defendant, but seems to be a meeting of strangers, where a difficulty took place over a trivial matter, without any intent on the part of the defendant to harm the deceased, we do not think the crime justifies as severe a sentence as was iffiposed upon the defendant by the jury.

In view of the facts disclosed by the record, we are of the opinion that the penalty should be modified to confinement in the state penitentiary at McAlester for a term of 6 years. With this modification, the judgment of the trial court is affirmed.

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


author: DAVJENPORT, J.

text:
    JOE COLLINS et al. v. STATE.
    No. A-6306.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 859.)
    W. P. Hickok, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVJENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted in the county court of Dewey county of the crime of having in their possession and under their control 150 gallons of mash fit for distillation and for the manufacturing of intoxicating liquor, and were ea$h sentenced to confinement in the county jail for a period of 90 days and to pay a fine of $400 and cost. Motion for new trial was filed and overruled, and exceptions duly saved, and the defendants perfected their appeal to this court.

The testimony on behalf of the state tends to show that the officers found the defendants in possession of about 150 gallons of mash fit for distillation and for the manufacturing of whisky, a still, a 5-gallon can of coal oil, and sack of sugar; that the mash was made of bran, sugar, and malt; that the place where they found the defendants with the mash and still was about two miles from any house, out in some woodland, no inclosure, so far as the record discloses.

No testimony was introduced on the part of the defendants. At the close of the testimony of the state, the defendants moved the court to discharge the defendants, for the reason that the evidence on its face is incompetent, irrelevant, and immaterial, and shows to have been procured by officers as trespassers, not under the authority of a search warrant, and for that reason that the evidence of the state, with the limitations thereon placed, is insufficient to support the verdict of guilty in this case, which motion was by the ■court denied, and defendants duly excepted.

Several errors are assigned by the defendants and urged as grounds for reversal of this case. The testimony in this case shows that the mash and still, and other things testified to by the witnesses, were from a mile and a half to two miles from a house, out on lands not owned or controlled by the defendants; therefore the officers were not trespassers, and had a perfect right, where they saw the defendants committing the offense, to arrest them without a search warrant or warrant for their arrest.

It is urged by the defendants that the court erred in the procedure used in impaneling the jury. There is no authority cited to support the defendants upon their contention. A careful examination of the record fails to disclose that the defendants were deprived of a fair and impartial trial; no showing is made that any of the jurors who sat in the trial of the case were biased or prejudiced against the defendants. The objection of the defendants is not well taken, and was properly overruled.

It is also urged by the defendants that the demurrer should have been sustained to the information. With this contention we cannot agree. The information is sufficient to charge the offense of possession of mash fit for distillation. The court properly overruled the demurrer. The testimony is sufficient to sustain the judgment. Finding no error in the record, the judgment is affirmed.


text:
    JOHNNIE JUSTICE v. STATE.
    No. A-6178.
    Opinion Filed Nov. 24, 1928.
    (271 Pac. 860.)

      H. Tom Kight, for appellant.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Johnnie Justice, was by information charged with the murder of one Willie Harris by shooting him with a pistol. On the trial of the case, he admitted the killing, but pleaded justification in necessary self-defense. A verdict of manslaughter in the first degree was returned against him, but the jury were unable to agree upon the punishment. Motion for new trial was duly filed and overruled. He was by the court sentenced to imprisonment in the penitentiary for the term of 10 years. To reverse the judgment, an appeal was' taken by filing in this court on April 14, 1926, a petition in error with case-made, but no brief has been filed.

The errors assigned question the sufficiency of the evidence to support the verdict and. alleged errors in the rulings of the court in the admission and rejection of testimony.

The evidence for the state shows that the killing occurred about 2 o’clock in the morning at the Beach Hotel on North Greenwood, city of Tulsa, and that the deceased died about 10 o’clock that morning.

The evidence of the attending physician shows that the bullet entered the upper part of the buttock, penetrated the intestines, and caused twelve intestinal punctures.

According to the testimony of Helen Barrett, she was on the watch that night at the Beach Hotel, which was conducted by her sister. This hotel occupied the two upper stories of the building, -and about 2 o’clock in the morning Mrs-. Justice came in with her brother, Mr. Pratt. She asked for a room, and witness assigned her to room No. 107. Witness occupied the adjoining room. Mr. Pratt left, and Mrs. Justice asked her for paper and a pencil to write a note to her husband, then asked her to call a boy to carry the note. Witness went to the third floor for a boy, and, as she was coming back, Willie Harris came in, and Mrs. Justice asked him if he would carry the note, and he said he would. As witness went to her room, Harris was standing waiting at the door. That she heard somebody coming up the stairs, and a woman screamed and said: “Oh, Oh, Johnnie! Johnnie! don’t do that.” Witness ran out in the hall, and Willie Harris was going up the stairs to the third floor. Johnnie Justice pulled a pistol, put his left arm around the post at the foot of the stairs, and shot Willie Harris. He was near the head of the stairs when he was shot. Justice then put the pistol in his pocket and went out. That Mrs. Justice ran into witness’ room and ran under her bed just before her husband fired the shot. Witness went to Willie Harris at the head of the stairs, and he said: “He shot me for nothing.”

Maud Horn testified that she worked at the hotel, and occupied a room on the third floor on the north side of the hallway; that she was in bed when she heard the gun fire, and she got up, put on a robe, and went into the hall-way. Willie Harris was lying on the floor, and said, “Lady, I am dying, that man shot me for nothing; get a, doctor.” Several persons gathered, and he said: “I am shot through the hip, if I live I am going to get Johnnie.”

As a witness in his own behalf, the defendant, Johnnie Justice, testified that his age was 31 years; that he had been living at Claremore for several years; that at the time of the shooting he was working for his brother-in-law, Mr. Pratt, who conducted a Turkish bath house in Tulsa; that he met his wife at the train about 12 o’clock that day, and took her to her sister’s, then went back to work; that evening she came to where he was working, and stayed about an hour, then he sent her to the Beach Hotel to get a room, and her brother, Mr. Pratt, went with her; that it was then about 12 o’clock at night; that about an hour later he went to the Beach Hotel; that that afternoon he let a man that took a bath have $10 on a pistol, and he carried the pistol, wrapped in a, newspaper, with him to the hotel; that, when he reached the head of the stairs, he heard a noise in the room where his wife was supposed to be, and heard his wife say: “My God, please don’t do that,” and heard a man say: “Every woman that comes in here I have to- have a date with and if you don’t give it to me I will take it away from you;” that-he pushed the door open, and the fellow was trying to throw his wife on the bed; that he rushed in and tried to hit him over the head with the pistol, and it fell out of his hands on the floor; that the man grabbed the barrel, and he got the handle, and, as they were struggling, the pistol went off, and again fell on the floor; that he picked up the pistol and went out, got a taxi, and went to Claremore.

It is the province of the jury to try the issue joined by a plea of not guilty, and, if the evidence for the state, uncontradicted,, will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.

The record discloses that the trial was in all respects fair, and we are unable to find anything in the record to create a doubt as to the correctness of the result or warrant us in interfering with the judgment. The judgment herein against the defendant, Johnnie Justice, is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, 'J.'

text:
    CHARLEY DIAMOND v. STATE.
    No. A-6496.
    Opinion Filed Nov. 28, 1928.
    (271 Pac. 951.)
    Roy White, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, 'J.'

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of McIntosh county, on a charge of transporting intoxicating liquor from one point in the county to another point, and was sentenced to pay a fine of $50 and be confined in the county jail of McIntosh county for a term of BO days. Motion for new trial was filed and overruled, and defendant has appealed to this court for review of this case.

The testimony on behalf of the state tends to show that Arthur Kirkpatrick, a, deputy sheriff, was out watching the movements of Siah Green and another Indian; witness stated the first thing that drew his attention was a car going through Vernon; it went from one negro house to another; “the car came north and stopped in the road and I got within SO or 40 yards of the car, and defendant came up the road; we did not know it was him right then; we were coming kindly facing the car, and before I got to it Charley Diamond started to run, when he said, ‘Start the motor’; I went on one side of the car and met Charley Diamond; he threw down a bottle of whisky and started to run; I caught him and started to hold him, and he dropped probably four or five bottles of whisky and a six-shooter; we had not got to him when he threw down the first bottle of whisky.”

On cross-examination, the witness stated he saw him coming up the road, but did not.know who it was; “I knew him when he started to run; he threw down a pint bottle of whisky and broke and ran; I nearly tore his shirt off; he kept backing around and threw down some more whisky, and when he dropped his gun Haley caught it before it dropped to the ground; I did not know it was whisky when he threw it down.” ~~

Charley Haley testified being at Vernon at the time Charley Diamond was arrested; that it was at night he was arrested, right east of the schoolhouse; some Indians had stopped their car near the schoolhouse; “we come out about 10 or 15 steps from the car and saw this fellow come up the road, and heard him say, ‘Start the motor;’ Kirkpatrick ran around the car and headed this fellow off, and I ran up and turned the motor off, and when he grabbed him, he whirled and threw away a bottle of whisky; he threw the bottle of whisky as Kirkpatrick caught him and I turned off the motor of the car, and by that time two: or three more bottles fell out, and about that time a pistol fell out, and I caught it.” Witness identified the whisky he claims defendant threw away, and claims he found two: more bottles on the ground over where the defendant was arrested; it was the defendant who said, “Start the motor”; at that time he was about 8 or 10 steps from the car; “I did not know he had the whisky before Mr. Kirkpatrick took hold of him and arrested him; Mr. Kirkpatrick took hold of defendant when he ran around the car and looked like he was going to pass the car; while Mr. Kirkpatrick and defendant was scuffling, the six-shooter fell out and I caught it; I went to keep the Indians from getting away; Kirkpatrick went around the car; the Indians were in the car.” This is, in substance, all of the testimony.

During the introduction of this testimony, the defendant objected to its introduction on the ground that it was illegally obtained, which objection was overruled by the court, and defendant duly excepted. The state did not offer any testimony to show that the officers had a warrant for the arrest of the defendant, or the Indians who claimed to be in the car near him, nor did it show defendant was doing anything except walking along the road, and came up to the car in which the Indians were sitting at the time. The state witnesses approached the car, and the testimony of the state tends to show that the defendant was stopped and taken hold of by the state witness before he had done anything to indicate he was violating the law. So far as the record discloses, the defendant was coming along a public highway and • approaching a car that was stopped by the side of the road; about the same time the officers approached the car, defendant approached the car from a different direction, and, when they met, the officers took hold of the defendant, and,. in the struggle, or when he was taken hold of, a bottle of whisky was dropped, and defendant was taken into custody; in the scuffle other bottles of whisky were' dropped or thrown out by the defendant.

The defendant urges that all the testimony in this casé was procured illegally, for the reason that he was peacefully going along the road and approached a car where the Indians were, and the officers immediately surrounded the car and illegally caught hold of the defendant and secured the testimony taken in this case against him without having any warrant for the defendant, or without seeing him commit a crime in their presence, and urges that the officers took hold of him without authority of law.

This court in the case of Keith v. State, 30 Okla. Cr. 168, 235 P. 631, in a well-considered opinion, says:

“1. No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession; or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law. * * *
“2., In a prosecution for unlawfully transporting intoxicating liquor defendant can not be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, or the evidence of the possession thereof so acquired, is admissible against him.”

See Williams v. State, 34 Okla. Cr. 359, 246 P. 895.

We hold that the evidence objected to by the defendant and admitted by the court over the defendant’s objection was taken by the officers by an unlawful search and seizure, and was improperly received in evidence against the defendant. The objection of the defendant was well taken.

The defendant’s conviction having no sufficient foundation to support it, without the use of the evidence unlawfully obtained, must be reversed.

The judgment is reversed and remanded.

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


text:
    GEORGE MITCHELL v. STATE.
    No. A-6313.
    Opinion Filed Nov. 28, 1928.
    (271 Pac. 952.)
    W. M. Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Greer county on a charge of selling intoxicating liquor to a minor and sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $500, Motio'n for new trial was filed and overruled and exceptions saved, and defendant has appealed to this court.

The evidence on behalf of the state is in substance as follows: Thelbert McCullough and Grady Means, testify they are under the age of 21 years; on the 29th day of October, 1924, they met the defendant George Mitchell near the cotton compress in the city of Man-gum; defendant sold to the witnesses one quart of whisky, for which they paid- him $5.

The defendant in his own behalf denied that on the 29th day of- October, 1925, or any other time, he sold to the two witnesses named herein intoxicating liquor. Willie Gilland testified in behalf of defendant that he got with the defendant the morning of the 29th of October, 1924, about 9 or 10 o’clock, at Vinson, and drove with the defendant to Mangum, and that he also drove back from Mangum to Vinson with defendant; that George Mitchell did not sell any whisky to any one bn that day when he came to the compress. Red Bruce testified in behalf of the defendant that he met the witnesses Thelbert McCullough and Grady Means on the 29th day of October, 1924, in or near Mangum, where he was fixing a casing, and when they drove up they wanted to sell him some whisky; Tom Smith was with him; and that Tom Smith is now in Old Mexico. This is in substance the testimony that was introduced in the case.

Several errors are assigned by the defendant as to why this case should be reversed, but the only assignment argued and relied upon for a reversal is:

“That the verdict of the jury and judgment of the court is contrary to the evidence and not supported by the evidence.”

The defendant in his argument states that, in arguing that the verdict of the jury and judgment of the court is contrary to the evidence and not supported by the evidence, he does not intend to waive any of the other assignments of error.

The testimony in this case discloses that the defendant and the two prosecuting witnesses were about the same age at the time of the alleged transaction, and had known each other for a number of years; that the prosecuting witnesses were on their way to a barn dance near Mangum, and that before they reached the place where the barn dance was to be given, they were apprehended by an officer, and in their car was found a fruit jar with about one-half pint of whisky in it. Witnesses were arrested and taken to the city and one of their fathers sent for, and it is claimed that the two witnesses were arrested and placed under bond.

The testimony in this case in behalf of the state is positive that the defendant in this case sold the prosecuting witnesses a quart of whisky and received therefor $5; on the other hand, the testimony of the defendant and other witnesses introduced in his behalf is positive that he did not sell to the prosecuting witnesses any whisky. There is a direct conflict in the evidence as to whether or not the defendant sold the prosecuting witnesses intoxicating liquor. This question was properly submitted to the jury by the court. The jury is the sole and exclusive judge of the evidence and credibility of the witnesses, and the weight and credit to be given their testimony. While there is a clear conflict in the evidence in this .case, this court will not substitute its judgment on the weight of the evidence for that of the jury, where there is competent evidence from which a jury would reasonably conclude that the defendant was guilty of the crime, charged. The evidence in this case is sufficient to sustain the verdict. However, as the record in this case shows this to be the first offense of the defendant, we do not think the crime for which he was -convicted justifies as severe a sentence as was imposed on the defendant by the jury.

In view' of the facts disclosed by the record, we are of the opinion that the ends of justice will be properly met by a modification of the penalty imposed to confinement in the county jail for 30 days and a fine of $200. With this modification the judgment of the trial court is affirmed.

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


text:
    JESS BORTHICK v. STATE.
    No. A-6316.
    Opinion Filed Nov. 28, 1928.
    (271 Pac. 953.)

      J. Q. A. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Canadian county of possession of intoxicating liquor with the unlawful intent to barter, sell, give away, and otherwise furnish the same, contrary to law, and was sentenced to pay a fine of $250, and serve a term of 90 days in the county jail. From the judgment and sentence against him, defendant prosecutes this appeal.

The testimony on behalf of the state shows that A. W. Culp, a police officer at El Reno, Ojkla., in company with Charles Petit, also a police officer, on the evening of the 23rd of March, 1926, went to the premises of the defendant, and about the time they got near the premises a man by the name of W. H. Dale started toward the chicken house of the defendant; they stopped Dale and went into the chicken house, and upon searching the same found a quantity of whisky in bottles and also in a fruit jar.

The defendant, testifying in his own behalf, denied that he had ever given away any whisky, sold any, or furnished any to any one else, but he admits that he had whisky to use himself; that the whisky taken by the officers was his whisky; he said the parties that brought it were supposed to bring him three quarts, and that he purchased it from the party to drink; that he was not at home when the party delivered it, and was not personally acquainted with the party that brought it there. The defendant admitted that he left his home with W. H. Dale, but denied that he got any whisky while he was away from his home; that the sack the state witnesses mentioned seeing them take out of the car ne had taken chickens away in. Testimony further shows that defendant was in the chicken business. Dale was not with him when he made the trade with the man to buy the whisky.

W. H. Dale, as a witness for the defendant, testified that he did not know anything about the whisky being in the chicken house; that he carried the sacks to the chicken house, and that there was no whisky in them; that he never knew of the defendant selling or disposing of whisky to any one; that he. had been at the defendant’s home once every two weeks, or maybe once a month.

The wife of the defendant testified that she never knew of the defendant making any whisky at their home, or having sold any whisky, and that people did not congregate there for the purpose of drinking or selling whisky.

Seven errors have been assigned by the defendant, all of which relate to the action of the court in overruling defendant’s motion to suppress the testimony, and the admission of the testimony of the state over the defendant’s objection.

It is urged by the defendant that the court erred in overruling the motion of the defendant to suppress the testimony, and admitting the tesimony of A. W. Culp, which had been secured by reason, of a search warrant procured by the witness Culp. The defendant urges that the affidavit did not state sufficient facts to justify the court in issuing the search warrant to search his premises. The contention made is that the search warrant is invalid, as being based on an indefinite affidavit. The statement in the- affidavit, which defendant contends is not sufficient to warrant the court in issuing the search warrant, omitting the caption and closing part, is as follows:

“A. W. Culp, being first duly sworn according to law, deposes and says, that on or about the 23d day of March, 1926, in Canadian county, state of Oklahoma, the following premises are being used as a place where spirituous, vinous, fermented, and malt liquors, and imitations thereof, and substitutes therefor, are received, manufactured, stored and kept for the purpose and intent of being sold, bartered, given away or otherwise furnished in violation of the prohibitory laws of the state of Oklahoma, to wit: all the land, buildings, outbuildings and appurtenances, including the residence, situated on lots 22, 23 and 24 in block 25, in Keith addition to the city of ET Reno, Canadian county, Oklahoma, and occupied by one Jess Boswick. Affiant states that he is police officer of the city of El Reno, said county and state, and as such an officer he has maae an investigation of the above premised and as a, result of such investigation finds that the said premises are being used as a place of public resort where people congregate for the purpose of buying, drinking and otherwise receiving intoxicating liquor; that affiant has searched the above said premises on prior occasions and at such times found a quantity of mash, said mash being fit for the manufacture of intoxicating liquor by distillation; affiant further states that he knows of his own knowledge that the party occupying the above said premises is in the whisky business and that the said party has sold whisky from said place, and that the said party uses the said place for a place of storage of intoxicating liquor."

Section 7012, Comp. St. 1921, reads:

“No search warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 7013, Comp. St. 1921, reads:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

Section 3'0 of the Bill of Rights, State Constitution, requires that a warrant for search and seizure shall issue upon a showing of “probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched and the person or things to be seized.”

Before entering upon the trial the defendant moved to suppress the evidence procured by the search warrant, alleging that the warrant was issued upon an insufficient affidavit, which motion was by the court overruled, and defendant duly excepted. An examination of the affidavit upon which the warrant in this case is predicated contains positive statement of the affiant as to what was being done at the home of the defendant. The defendant urges that the court erred in overruling his motion to suppress the evidence, on the ground that the affidavit was in truth an affidavit on information and belief, although positive in form. The defendant sought to offer evidence to show that the officer making the affidavit did not have positive knowledge that intoxicating liquor was being kept for the purpose of bartering, selling, or otherwise disposing of the same in violation of law.

This court in the case of Phillips v. State, 34 Okla. Cr. 52, 244 P. 451, held:

“The purpose of a verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.” Alvey v. Commonwealth, 199 Ky. 655, 251 S. W. 856; Martin v. State, 36 Okla. Cr. 82, 252 P. 451.

The affidavit states in positive terms the material provision of the statute necessary to justify an officer in issuing a search warrant. The court did not err in overruling the motion of the defendant to suppress the evidence secured by reason of the search warrant, and the objection of the defendant to the introduction of the testimony secured by reason of the search was properly overruled.

It is inconceivable that officers of the law or individuals will go before an officer and make affidavit to facts without having knowledge of the facts to which they make affidavit. If the officers do make such positive statements without any actual knowledge upon which to predicate them, it is an unfortunate condition. The duty of the officer is to enforce the law, and to arrest violators when properly charged with a crime, or when they see the crime being committed, and it is the officer’s duty to uphold the law, and not to violate it. In this case the affidavit for the search warrant is positive, and sufficient to justify the court in issuing a search warrant. Whether or not the statements in the affidavit upon which the search warrant is obtained are true is not an issue in the trial of a case predicated upon the evidence otained by such search warrant. The whisky was found by the officers in defendant’s possession, and the defendant admits the possession. It is denied by the defendant that he had any whisky for the purpose of bartering, selling, giving away, or otherwise furnishing the same to others. The law applicable to the facts was properly submitted to the jury by the court, and the jury found against the contention of the defendant. The weight of the testimony and the credibility of the witnesses is within the province of the jury. Where there is competent testimony to sustain the verdict of the jury, this court will not disturb its finding.

Finding no error prejudicial to the rights of the defendant, the judgment of the trial court is affirmed.

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