text:
    JIM LEIGH v. STATE.
    No. A-6468.
    Opinion Filed Jan. 5, 1929.
    Rehearing Denied Jan. 19, 1929.
    (273 Pac. 280.)
    Cress & Tebbe and Moman Pruiett, 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 Noble county, of maintaining a place where intoxicating liquors, to wit, whisky, is received and kept for the purpose of bartering, selling, giving away, and otherwise furnishing the same to others unlawfully, and was sentenced to pay a fine of $250 and be imprisoned in the county jail for 90 days. Motion for new trial was filed, considered, and overruled, exceptions saved, and defendant has appealed to this court.

The testimony of two hired witnesses for the state, R. J. Smith and R. I. Wood, in substance shows that on the 28th day of May, 1926, they went to defendant’s home on two different occasions and bought whisky from the defendant. The two witnesses named are what is generally styled professional witnesses, that is, they admit they were hired by some of the county officers to go to defendant’s place .and try to buy intoxicating liquors; they also admit, in their examination, that they are in the habit of drinking some. The record shows they have testified against other parties in Noble county. The court looks with disfavor on witnesses who admit they are being paid so much a day by the county officers to go out and detect or persuade persons to violate the law. We feel constrained to say that it is not advisable for the county officers to follow such a practice.

The testimony of the state wholly fails to show that the home of the defendant was a place of public resort, or that people congregated there for any purpose. The state called Fred Yeager, who testified that he knew where defendant lived on May 28, 1928, and the state then propounded the following question to the witness:

“Q. Did you know the general reputation of Jim Leigh’s place, at this point on the corner of Fourth and I streets in the city of Perry, Noble county, Oklahoma, on May 28, 1928, as being a place where intoxicating liquors were received and kept for the purpose of sale?.
“Mr. Pruiett: We object to that as incompetent, irrelevant and immaterial, and if the court please, I want to be heard on that proposition, and ask that the jury be excluded from the court room.
“The Court: Gentlemen of the jury, you will be excluded for a few minutes. Remember the admonition heretofore given you, and you will remain out until called by the court.”

Thereupon the counsel for the defendant proceeded to argue his objections to the court.

“The Court: I am going to overrule the objection, Mr. County Attorney, if you are willing to stand on what has been shown on the public resort proposition. Objection overruled.
“Mr. PTuiett: Exceptions.”

The jury was returned into the courtroom, and the stenographer read the question to the witness.

“Mr. Pruiett: We would like to have the record show the same objection after reading the question; incompetent, irrelevant and immaterial.
“The Court: Overruled.
“Mr. Pruiett: Exceptions.
“A. Yes, sir.
“Mr. Howard: Was that reputation good or bad? A. Bad.”

The same question, in substance, was propounded to the witnesses Francis Evans and W. W. Moore, and the same answers given over the objections of the defendant. This is, in substance, the testimony offered by the state.

The defendant called a number of witnesses in his own behalf as to the conduct of witnesses R. J. Smith and R. I. Wood, and as to the defendant’s home not being a place of public resort.

It is urged by the defendant in his sixth assignment of error that the court erred in admitting, over the objection of the defendant, incompetent, irrelevant, and immaterial evidence on the part of the state as to the general reputation of the place on the corner of Fourth and I streets, in the city of Perry, Noble county, Oklahoma, on May 28, 1928, being a place where intoxicating liquors were received and kept for the purpose of sale. This question has been before this court several times.

In Welch v. State, 35 Okla. Cr. 2, 246 P. 1113, this court, in the second syllabus, said:

“Before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession of intoxicating liquors, it must be shown that the place itself was a place of public resort, not merely that it bore such a reputation.” Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; Conley v. State, 40 Okla. Cr. 128, 267 P. 491.

It is urged by the defendant that, if the court had excluded from the consideration of the jury the evidence as to the general reputation of his home, the jury would not have rendered a verdict of guilty on the testimony of the state witnesses, two of whom were R. iJ. Smith and R. I. Wood, known to be professional witnesses. The defendant also urges that the state offered no testimony to show that the home of the defendant was a place of public resort, or that people congregated there at all hours of the day or night. If the testimony of the witnesses admitted over the objection of the defendant, on the general reputation of his home as being a place where intoxicating liquors were kept for sale, had been excluded from the jury, no one can tell what the verdict of the jury would have been. Before evidence on behalf of the state would be admissible on the general reputation of defendant’s home, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation. We think the objection of the defendant to the testimony of the state upon the question of the reputation of his home was well taken, and that the court erred in not sustaining the same.

There are some other errors assigned and urged by the defendant, but in the view we take of this record it is not deemed necessary to consider them. For the reasons herein stated, the case is reversed and remanded.

DOiYLE, P. J-, and EDWARDS, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JEWELL CARRICK v. STATE.
    No. A-7021.
    Opinion Filed Jan. 12, 1929.
    (274 Pac. 896.)

      C. E. Corbett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith G. Matson, Asst. Atty. Gen., and S. H. Lattimore, Co. Átty., of Muskogee, for the State.
   DOYLE, P. J.

(after stating the facts as above). Appellant, Jewell Carrick, was informed against for the murder of Henry Ausler. The jury found her guilty of murder and fixed her punishment at death. Motion for new trial was duly filed and overruled, and, in pursuance of the verdict of the jury, she was sentenced to suffer the punishment of death by electrocution as provided by law.

To reverse the judgment, an appeal to this court was duly perfected.

The first question presented is whether or not the trial court- erred in overruling appellant’s motion to quash the panel of jurors.

One of the grounds of the motion to quash is as follows:

“Fifth. Defendant states further that she is a person of African descent, known as ‘Negro’ and that the panel from which this jury was drawn and from which all the jurors and juries for this term was drawn or shall and must be drawn and selected for the trial of this cause, is composed exclusively of white persons or members of the Caucasian race; and that all 'persons of color, or of African descent known as ‘Negroes,’ were excluded from serving on this jury and on all juries during this term of court by the jury commissioners of Muskogee County, Oklahoma, on account of their race and color and for no other reason.
“Sixth. That the aforesaid jury commissioners have for many years past wilfully, knowingly, illegally, wrongfully and by means of a well understood and clever scheme, excluded all persons of African descent known as ‘Negroes’ from serving on juries in this court and county solely on account of their race and color, all of which is a discrimination against .¡this defendant, since she is a Negro, and a member of African descent, and that such discrimination ■ aforesaid is a denial to her of the equal protection of the laws, and of her civil rights guaranteed and vouchsafed her by( the Constitution and laws of the United States in the Fourteenth and Fifteenth Amendments thereof.
“Seventh. That Muskogee County has a large colored population constituting, so defendant is informed and believes, and avers, about one-fourth of the total population of said county, and constituting and composing abouf one-fourth of the qualified voters of said county under the Constitution and laws of the United States and the State of Oklahoma, who are qualified for jury service in said county and state, many of whom were selected by the government of the United States to serve as soldiers in the World’s Great War and many of whom were sent across the seas and served the colors and government in the bloody fields of France and other foreign fields and fought bravely, nobly and fearlessly, and notwithstanding and regardless of this, and the still further fact that a large proportion of the persons of African descent known as ‘Negroes’ who are qualified and eligible for jury service, as aforesaid, and who have proven their worth as loyal citizens of the United States, the State of Oklahoma and the County and City of Muskogee, who pay taxes, work the roads, vote for, and promote a campaign for bonds for both county and municipal improvement, in Muskogee County, Oklahoma, and last but not least, lend their each and every effort to promote peace, happiness and prosperity in their respective community and to keep down strife, confusion and disorder between the races and members of society, the jury commissioners of this county wilfully, knowingly and purposely refused, failed and neglected to select any person or persons whomsoever of the descent hereinabove mentioned, to-wit: ‘African descent,’ and designate to serve as jurors, solely on account of their race and color, and that such refusal and exclusion, as aforesaid, is a denial to the defendant of the equal protection of the law as guaranteed to her by and under the Fourteenth and Fifteenth Amendments of the United States Constitution and the laws of the State of Oklahoma.”

In support of the motion to quash the panel, appellant called as a witness Mr. Ed Sweeney, who testified that he was a member of the jury commission and participated in the selection of jurors for this term of court; that the list of jurors were taken from the tax rolls.

He further testified as follows:

“Q. Did you see any names of members of the Colored race on either of the lists? A. I presume that there was quite a number of them there, but I don’t know.
“Q. Will you say that you did find the names of Negroes on the list? A. I don’t remember recognizing any. The book was marked with a ‘C,’ those I understand were Colored.
“Q. Did you or any of your associates select any of those names marked with a ‘C’ after this Colored People, as members of this jury? A. Not that I know of.”

Mr. Maurice Hopping, called as a witness, testified that he was a member of the jury commission and participated in the selection of jurors for this term of court; that the list of jurors were selected from the tax rolls. He further testified as follows:

“Q. Do you know whether there was on that list anything marked to distinguish the members as to race? A. There is in one instance.
“Q. What instance ? A. Some of them have marked behind them a small ‘C’ and another instance where I marked a cross myself, and there were some that didn’t have any mark to indicate whether they were colored men or white men.
“Q. You did find something to indicate the members of race? A. I did.
“Q. Did you, in going over that list that you had, did you place on there names of any where they were names of Negroes, or where there was anything to indicate the race? A. Not if I knew it.
“Q. Why didn’t you? A. Because I never saw a member of the colored race qualified as a juror in this state, and I don’t believe, taking them as a whole, that Negroes are competent to serve as jurors.
“Q. Then you are prejudiced against the Negro race? A. No, sir. I don’t believe they would be competent to try one of these cases. I don’t believe they would be competent to try one of their own race or any one else.
“Q. That’s all.”

The evidence in support of the motion further shows that a large number of the colored population of Muskogee county possessed the qualifications of jurors. It also appears that the proof offered in support of the motion was undisputed.

The court, after hearing the evidence in support of the motion to quash the panel, overruled said motion. Exception reserved.

It has been repeatedly held by the Supreme Court of the United States that, when a person of African descent, charged with crime, challenges the array or panel of jurors on the ground of the exclusion of citizens of the African race therefrom, he must affirmatively prove that such citizens were excluded solely because of their race or color. Martin v. Texas, 200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497; Brownfield v. South Carolina, 189 U. S. 426, 23 S. Ct. 513, 47 L. Ed. 882; Tarrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572.

Upon a careful consideration of all the evidence offered in support of appellant’s challenge to the panel, we cannot resist the conclusion that the trial court committed reversible error in overruling the motion to quash the panel of jurors, because it was shown and admitted that the aforesaid jury commissioners had purposely excluded from the jury list because of their color citizens of the African race, qualified to perform jury service.

It is well settled that a denial to citizens of the African race solely on the ground of their race and color of the right or privilege accorded to white citizens of participating as jurors in the administration of justice is a discrimination contrary to the Fourteenth Amendment of the Constitution of the United States, which declares that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Constitution of the state of Oklahoma declares that: “The Constitution of the United States is the supreme law of the land.” Const, art. 1, § 1.

The Supreme Court of the United States has repeatedly held that a person of African descent accused of crime is denied the equal protection of the laws, contrary to the guaranty of the Fourteenth Amendment, if citizens of the African race are excluded from service upon the grand jury returning the indictment against him or the petit jury before whom he is placed upon trial solely because of their race or color. Strauder v. W. Va., 100 U. S. 303, 25 L. Ed. 664. And it makes no difference whether such exclusion because of race and color is effected by a statute or by the arbitrary and wrongful acts of the officers in the administration of the law. Gibson v. Mississippi, 162 U. S. 565, 16 S. Ct. 904, 40 L. Ed. 1075; Carter v. Texas, 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839.

The fact that there were no persons of African descent upon the list of jurors selected by the jury commissioners or summoned for the purpose of trying appellant does not of itself show the exclusion of such persons solely because of race or color. Martin v. Texas, supra.

In Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676, the Supreme Court of the United States, speaking by Mr. Justice Strong, said that: “A state acts by its legislative, its executive, or its judicial authorties. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the state, and is clothed with the state’s power, his act is that of Ithe state. This must he so, or the constitutional prohibition has no meaning.”

In Martin v. Texas, 200 U. S. 319, 26 S. Ct. 338, 50 L. Ed. 498, the Supreme Court of the United States, speaking of Mr. Justice Harlan, said: “For it is the settled doctrine of this court that ‘whenever, by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the 14th Amendment of the Constitution of the United States.’ Carter v. Texas, 177 U. S. 442, 447, 44 L. Ed. 839, 841, 20 S. Ct. 687; Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Neal v. Delaware, 103 U. S. 370, 397, 26 L. Ed. 567, 574; Gibson v. Mississippi, 162 U. S. 565, 40 L. Ed. 1075, 16 S. Ct. 904; Rogers v. Alabama, 192 U. S. 226, 231, 48 L. Ed. 417, 419, 24 S. Ct. 257.”

Speaking by Mr. Justice Harlan in Neal v. Delaware, supra, the Supreme Court of the United States said: “We repeat what was said” by us in Va. v. Rives, 100 U. S. 322, 25 L. Ed. 667, “that while a colored citizen, party to a trial involving his life, liberty, or property, cannot claim, as matter of right, that his race shall have a representation on the jury, and while a mixed jury, in a particular ease, is not within the meaning of the Constitution, always or absolutely necessary to the equal protection of the laws, it is a right to which he is entitled, ‘That in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them, because of their color.’ ”

In Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688, this court said: “The Fourteenth Amendment to the Constitution of the United States . does not require the jury commissioners or other officers icharged with the selection of juries to place Negroes upon the jury list simply because they are Negroes. The allegation that the jury was composed solely of white men does not violate the Fourteenth Amendment to the Constitution of the United States, and proof of that fact would not support the motion. The ground upon which the decisions of the Supreme Court of the United States rests is not that Negroes were not selected to sit upon juries, but that they were excluded therefrom solely on account of their race or color. In other words, there is no law to compel the jury commissioners or other officers of the court to select or summon Negroes as jurors. They can select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding Negroes solely on account of their race or color.”

And see McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735.

Upon the record before us we are of opinion that appellant was denied the equal protection of the laws contrary to the guaranty of the said Fourteenth Amendment.

Other questions are argued by counsel, but, in the view we have taken of the one considered, they are not important. In view of a trial before another jury, we will not comment on the evidence.

For the error indicated, the judgment appealed from is reversed, and the cause remanded to the trial court for further proceedings according to law.

The warden of the state penitentiary will surrender appellant, Jewell Carrick, to the sheriff of Muskogee county, who will hold her in custody until she be discharged or her custody changed by due course of law.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    GUS STANKA v. STATE.
    No. A-6425.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 279.)
    Ross Cox, S. A. Horton, and Stewart & Williams, 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 Harmon county on a charge of having the unlawful possession of intoxicating liquor, and his punishment was fixed at a fine of $150 and imprisonment in the county jail for a term of 60 days.

The information alleges that defendant had the possession of certain intoxicating liquor, to wit, one gallon of whisky and three cases of Choc beer. The record discloses that certain officers with a search warrant searched the place of business of defendant, which was a bottling works, and the immediate vicinity. A quantity of Choctaw beer was found, which was analyzed 10 days thereafter and found to contain a fraction less than 4 per cent, of alcohol. In an alley immediately adjacent to the bottling works, between it and the truck of defendant, two half-gallon fruit jars full of corn whisky were found. There is testimony from one Bridgewater, who acted as a snitch, which tends strongly to prove that defendant was engaged in the unlawful sale of intoxicating liquor. Also some evidence of statements made by defendant to the same effect.

It is contended that the information is insufficient in failing to allege that the Choctaw beer contained as much as one-half of 1 per cent, of alcohol measured by volume. A demurrer was interposed, but so far as the record discloses it was never called to the attention of the court nor ruled on. It will be deemed to have been waived. In the absence of a challenge by demurrer, and indulging all the inferences and intendments, the information is sufficient.

It is also argued that there is no evidence that the Choctaw beer was intoxicating at the time seized, since it was not analyzed until 10 days thereafter, citing Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Rouney v. State, 32 Okla. Cr. 111, 240 P. 142; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113; Phelps v. State, 36 Okla. Cr. 213, 253 P. 910; McDonald v. State, 36 Okla. Cr. 426, 255 P. 160.

There is no proof in this case, however, that the beer at the time seized was undergoing fermentation. This court has held that, where there is no evidence tending to show that the beer is undergoing fermentation at the time it is seized, there is no presumption of an increase in its alcoholic content. Rambo v. State, 38 Okla. Cr. 192, 259 P. 602.

Some complaint is made of the court’s instructions, but we find no such material error as requires a reversal. Upon a consideration of the entire case, we are convinced that defendant was fairly tried. The evidence is sufficient to sustain the judgment and sentence.

The case is affirmed.

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


text:
    PAUL POWERS v. STATE.
    No. A-6428.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 280.)
    C. B. Leedy and Tom L. Ruble, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of manslaughter in the first degree and sentenced to serve a term of 25 years in the state penitentiary.

The case was tried in May, 1926, and the appeal was lodged in this court in October, 1926. No briefs have been filed. Where an appeal is prosecuted to this court from a conviction for a felony and no briefs in support are filed, and where the evidence sustains the verdict and judgment, and no jurisdictional or fundamental errors are apparent, the judgment will be affirmed.

On account of the gravity of this case, we have examined with care the record of the proceedings and have read closely the testimony both for the state and the defendant. The record discloses that defendant at the time of the homicide was 19 years of age and a short time before had been employed by deceased as a farm hand. He claimed that deceased owed him a balance for labor. He armed himself with a pistol, went to the farm of deceased, and shot him four times, causing instant death. The plea of self-defense was interposed, and defendant testified the deceased at the time of the homicide had a pistol on his person and he believed he was about to attack him. The theory of self-defense has very slight support. The evidence amply sustains the verdict and judgment. The case is well tried, and no substantial errors are apparent.

The case is affirmed.

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


text:
    CHARLES F. BUZZI v. STATE.
    No. A-6300.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 380.)
    Geo. M. Callihan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment rendered on a verdict of a jury finding defendant, Buzzi, guilty of assault and battery and fixing his punishment at a fine of $100 and imprisonment in the county jail for 15 days.

It appears from the record that the case came to the district court on appeal from a judgment of conviction rendered on the trial of a complaint filed in the justice of the peace court of O. R. Fegan, justice of the peace in and for the city of Guthrie, Logan county, wherein Owen E. Acton verified the complaint, charging that Charles E. Buzzi did assault, strike, and beat and bruise him, the said Owen E. Acton.

The undisputed facts are that the complaining witness, a resident of Guthrie, parked his car in front of the bathhouse on Oklahoma avenue in the city of Guthrie, and appellant, who testified that he was “a Federal prohibition officer,” stepped up and said, “I am going to search this car.” Mr. Acton objected, and appellant grabbed him and with force and violence pulled him out of the car. The sheriff, undersheriff, and one or two deputy sheriffs came up, and appellant searched the car for intoxicating liquors, but failed to find any. Mr. Acton said, “I know you have no right to do that.” Appellant replied: “Well, you see we did it. You go and see your lawyer.” It is undisputed that appellant did not have a search warrant and did not have any warrant for Mr. Acton.

The errors assigned question the jurisdiction of the court to try the case, and question the sufficiency of the evidence to sustain the verdict. An examination of the record shows that the question of jurisdiction is not presented therein, and we think that on the undisputed facts the defendant was guilty of assault and battery.

It is suggested that the punishment imposed is excessive. Upon the whole case we are inclined to think that the punishment is too severe, and that the judgment should be modified by omitting the jail sentence imposed and leaving the fine of $100.

The sentence will therefore be modified to a fine of $100 and the costs, and as so modified the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    CHARLES CARTER v. STATE.
    No. A-6312.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 376.)
    Leverett Edwards, Leon S. Hirsh, and Roff & Thread-gill, 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 Osage county, upon an information charging that he did unlawfully and feloniously, by fraud and stealth, take, steal, and drive away one Ford touring car, and was sentenced to imprisonment in the state penitentiary for a term of 10 years. Motion for new trial was filed and overruled, exceptions saved, and the defendant has appealed to this court.

The testimony of Fel Lackey, a witness on behalf of the state, is in substance as follows: That the defendant went to the business place of Brown Westerman, known as “Rent a Ford,” in the city of Pawhuska, on the 3d day of August, 1925; that the business was in Fel Lackey’s charge, and that he rented a Ford touring car; that the defendant first came to the place and was advised about the rental, and went away and came back shortly thereafter ; that he handed witness Lackey a check for $20, this being the amount required as a deposit when a car was rented to a party; defendant did not mention any time he was to return; ten hours was the customary time to keep a car out; that he never saw the car any more after the defendant drove away, but several days thereafter some one phoned, saying they thought they had located the Westerman car at Idabel. The defendant signed up on page 696 of a book. Book presented and signature identified. Witness also presented the page where it was signed up, and it was introduced as evidence; also the check that was left with him as a deposit, which check shows to have been made payable to J. A. Bethune, for $20, drawn on the First National Bank of Hominy, Okla., purported to be signed by J. H. McClure. Witness identified defendant as being the man who signed up and took the car away from the office in 1925.

On cross-examination witness was asked if there were not two men, and witness answered that he did not know whether there was one or two men; he further stated he was sure there was only one man said anything about wanting the car; there may have been another man with defendant, but he did not remember; he could not say for sure if there were some one with defendant when he came in; “as defendant started to take the car out, I requested him to make a deposit, and he handed me the check,” which had been introduced in evidence. “I did not see the check written. I was working for Mr. Westerman, in charge of the place, when he got the car. I let the defendant have the car to take out and drive with the understanding that he was to pay for it.”

On further cross-examination, witness stated he was sure defendant was at the place of business twice. “I do not know where the defendant got the check. We never sent the check to the bank. We phoned the bank at Hominy, on which the check was drawn, and it replied that J. H. McClure had no account with the bank.”

C. E. Sweet, called as a witness on behalf of the state, testified he lived at Idabel, about 400 miles southeast of Pawhuska, during the month of August, 1925; that he was a constable; that he knew the defendant; that he saw the defendant about 1-J miles north of Idabel, near a Ford touring car. It was the Ford touring car that Mr. Freas and Mr. Westerman came for. Defendant had quite a lot of stuff in the car at the time, new tubes, traveling bags, and new stuff; the tags on the car had been partly broken off; the defendant was not at the car; he was a short distance away from it; said he was in the real estate business; he was drunk at the time of his arrest; defendant said his home was at Marlow, Oklahoma.

J. R. Jones, sheriff of McCurtain county, testified to the same facts as did witness Sweet, as to the things found in defendant’s possession at the time he was arrested. S. R. Byran, the undersheriff of McCurtain county, was called as a witness, and among other things stated defendant told him his name was Charley Carter; said he had a brother, who lived at Marlow, in the real estate business; that he was down in McCurtain county getting leases for his brother. ,

The defendant, as a witness in his own behalf, testified as follows:

“I live at Marlow. I am a married man. I work for my brother, who is in the land business; have lived in Oklahoma all my life; went to Marlow in 1910; had been in McCurtain county a good deal prior to my arrest. My business there at the time I was arrested was getting leases for my brother. When I came to Pawhuska, Hickman Gibson came with me.- We came to Fairfax, in Osage county. I went to a brother-in-law and sister-in-law, Gibson Dixon, and his wife, at Fairfax. I did not know a man by the name of J. H. McClure. He knew a man by the name of McClure. It was J. H. Bethune. I don’t know what the initials of McClure was. While I was in Osage county, I came to Pawhuska. McClure, Bethune and Gibson came with me. We went from Pawhuska back to Fair-fax. We fooled around in Pawhuska and got to drinking, and decided we would go back to Fairfax that evening. We had been drinking since morning; as soon as we got over there, we began drinking beer. I don’t know — we drank quite a good deal. McClure and Bethune was acquainted with some boys here. We was drinking a little bit before we came here. I went down to see about a car, and Gibson went with me. We went over to the Rent a Ford station, Mr. Westerman’s place. We asked about a car, and he said we could get one. We did not know for sure then we would want it, and told him we would come back after a while. He told us the price, but I don’t remember what the rate was, so much a mile or so much an hour. He said we Would have to put up a $20 deposit. Gibson and I were together at the time. The other fellows were down on the creek. We went back down on the creek, and stayed around a while, and got some more choc. When we got back down to the creek, we told McClure and Bethune what the deposit was, and McClure agreed to pay it. He gave Bethune a check, and Bethune gave me the check to put up as a deposit. It must have been 5 o’clock when we went back to get the car. I told him we wanted a touring car, and gave him the $20 check and run the car out myself. Bethune and the man in charge of the business went in the office together. I did not write the signature that is State’s Exhibit A. I did not sign the check or indorse it. I did not sign any rental contract or agreement whatever. When we got the car, we aimed to go to Fairfax, and would get back that night. We went down the creek to where the boys were, and then went to Fairfax. When we got to Fairfax, we went down to Noah Hamilton’s. We did not stay long; Noah Hamilton' was not at home. We went on to Hominy. Gibson wanted to go on east after we took him to Hominy. He said he wanted to go down in Choctaw. Gibson drove the car from the time we left the creek at Pawhuska until we got to Poteau. We kept supplied with whisky all the way down. When we got the car, I did not know that Gibson wanted to go to the Choctaw country. No one had said anything about going anywhere, but to Fairfax, when we got the car. The hand bag in the car was McClure’s, and I did not know what was in it until after we got down to Poteau. He opened the grip to put some whisky in, and I saw what was in the grip. He said the women’s clothes belonged to him and that he must not lose them.
“There was one tag on the car. The tag that was on the front belonged to somebody down in McCurtain county. We found it in the road down there at Idabel. I don’t remember who found it, but Gibson put it on the car. Three of the first numbers of the tag that was on were broken off, to make it match the one we found and put on the front of the car. On Saturday night Gibson was driving the car and run it off the road. He got mad, and began fighting the other two boys, and they ran off or got away. Gibson went to a house to get a team to pull us out, and the first house he went to the fellow did not have a team. The fellow was on crutches or a wooden leg. When the fellow came down to the car, Gibson got into the car and gave him a drink. We did not have anything but beef, wine, and iron, and this fellow would not drink that, and we put it back in the car and the law came. Gibson went up to a fellow’s house, and the team was in the field. The man and the Indian, Gibson, went out to hunt them, and, while hunting the team, the law came and got Gibson. After Gibson was arrested, I started back down to the car. I did not see Gibson any more, nor did I see McClure or Bethune after Gibson was arrested. At the time I was placed in jail at Idabel, they preferred a charge of drunkenness against me, and I paid the fine. I have tried to find McClure and Bethune since I got out of jail, but 1 have not been able to locate them, nor have I seen Gibson. I did not intend to keep the car when I hired it. When I was arrested, I was on the road between Broken Bow and Mabel.”

The defendant called a witness by the name of Tucker, who testified to defendant’s previous good character. This ■is in substance all the testimony we deem material.

The first assignment of error discussed by the defendant is: “That the court erred in overruling the demurrer of the plaintiff in error to the information in said cause.”

An examination of the case-made shows that on October 5, 1925, what purports to be a demurrer to the information was filed in the clerk’s office, which demurrer was unsigned, and is as follows: “Comes now the defendant, C. L. Carter, and demurs to the information filed herein, on the grounds and for the reason that said information wholly fails to allege a commission of an offense against the laws of the state of Oklahoma.”

The record further shows that on October 5> 1925, in criminal No. 1535, Charles Carter, alias Jim McClure, same being one of the regular days of the September term of the district court, the defendant was called for arraignment; defendant present in person and by counsel. County attorney present for state. Defendant, now duly, arraigned, waives time; waives reading of information; enters plea of not guilty. Copy of information served on defendant in open court. Bond fixed in the sum of $2,500.

Section 2609, Comp. St. 1921, provides: “The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the indictment or information, or it must be disregarded.”

As disclosed by the record, what is claimed to be a demurrer was not signed by either the defendant or his counsel, and does not comply with the requirements of the statute. Counsel for the defendant did not think enough of the demurrer to present it to the court, and ask the court to rule on the same before the plea was entered. We think the failure of counsel to present the demurrer to the court and secure a ruling thereon Was necessary before the plea of not guilty was entered; that it might not waive the right of the defendant, except jurisdictional or fundamental errors appearing on the face of the information.

In Franklin v. State, 17 Okla. Cr. 348, 188 P. 686, the court said: “Where the defendant fails to question the sufficiency of an information as authorized by the provisions of the Code of Criminal Procedure, he in effect waives any and all defects, except such as are fundamental.”

In White v. State, 4 Okla. Cr. 146, 111 P. 1012, this court said: “If the indictment was defective this matter should have been called to the attention of the trial court by proper motions before the defendant entered his plea. This is the reason why the defendant is allowed by statute one day in which to plead. If the defendant enters his plea and waits until the introduction of the evidence to object to the sufficiency of the indictment, the objection should be overruled if by any possible construction or intendment the indictment can be sustained.”

It is the opinion of this court that the failure of the defendant to interpose a proper demurrer to the information, and to secure a ruling of the court on said demurrer, prior to entering his plea of not guilty, constituted a waiver of all but jurisdictional or fundamental errors. None of the objections urged to this information are jurisdictional or fundamental. There being no adverse ruling on the demurrer, there is nothing for this’ court to review. McGill v. State, 16 Okla. Cr. 657, 185 P. 530; McGaugh v. State, 12 Okla. Cr. 96, 152 P. 140; Love v. State, 12 Okla. Cr. 1, 150 P. 913.

Any question that could have been raised by a proper demurrer to the information was waived by the defendant entering his plea of not guilty. Section 2120, C. O. S. 1921, the statute on which this information is based, reads as follows: “Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (5) years, nor more than twenty (20) years.”

In State v. Underwood, 17 Okla. Cr. 443, 190 P. 281, this court held: “The common-law doctrine of a strict construction of criminal law and all proceedings in criminal cases, and that an information should be certain to a certain intent in every particular, is not in force in Oklahoma.”

It is urged by the defendant that the information did not allege facts sufficient to apprise the defendant of the charge he must be prepared to meet. With this contention we cannot agree; we think the defendant fully understood the charge brought against him, and as a witness in his own behalf he admitted he got the car and drove it away.

He claims other parties were with him, yet he was unable to locate either of the parties, one of whom he claims signed the check he left with the man from whom he secured the car. This is an unusual case. The car was taken from Pawhuska by the defendant, and was not returned, and several days thereafter the defendant was found in possession of the ear, about 400 miles southeast of Páwhuska, in MeCurtain county. He says he intended to return the car. The defendant is presumed to know the consequences of his own acts, and his intent must be judged by his acts. Up until the time of his arrest, so far as the record discloses, he had no communication with the parties from whom he secured the car, nor had he made any effort to return it, and the proof shows that he was found on the road north of Idabel, on the road between Broken Bow and Idabel.

The defendant urges with great force that the state utterly failed to prove any fraud on the part of the defendant in obtaining the consent of the owner, or his agent, in the taking of the car, and he urges that the check that was deposited with the owner of the car was not presented to the bank for payment, and for that reason it was not dishonored. The evidence on behalf of the state is that the First National Bank of Hominy was phoned by the agent of the owner of the car, and that the bank replied that no such person as J. H. McClure had an account with the bank. The defendant does not insist that the check he deposited with the agent of the owner of the car was good at the time, nor does he attempt to show that a man by the name of J. H. McClure carried an account with the First National Bank of Hominy, or that die had any credit with the bank and believed the check would be honored and paid when presented.

Defendant cites the case of Kilgore v. State, 25 Okla. Cr. 69, 219 P. 160. In the Kilgore Case, he was prosecuted under what is known as the bogus check law, and the court in the body of the opinion says: “We think, therefore, that the motion for a directed verdict should have been sustained, as the proof of the essential elements of the bogus character of this check on the part of the state was merely hearsay, and the proof by the defendant’s witness tends to support the defense interposed that he had credit with the bank and believed the check would be honored by the bank upon presentation to it.”

The facts in this case are somewhat different from the facts in the Kilgore Case, as the defendant made no effort to establish that J. H. McClure had an account with the bank at Hominy and believed the check would be honored when presented. Counsel for the defense argue that the only fraud, if any, practiced by the defendant, was the giving to Westerman a check on the First National Bank of Hominy for $20, signed with 'the name J. H. McClure, and claim that, since the check never was presented to the bank for collection, there is no proof of its bogus character, and hence no proof of fraud. The owner of the car required a deposit to be made as evidence of good faith on the part of the one who hired the car to use the car for a limited time, specified in the contract, to satisfy the owner that the charge for the hire would be paid. The proof in this case shows conclusively that the defendant, if he ever intended to comply with the contract, clearly violated the terms of the same by converting the property to his own use. We think it was immaterial whether the check was presented to the bank, or whether it would have been paid when presented. The evidence of the defendant and his subsequent actions clearly show when he got possession of the car he intended to appropriate it to his own use and deprive the owner of his property.

The defendant urges that the court erred in excluding certain testimony sought to be brought out by defendant in the cross-examination of the witness! Lackey, which related to the intention of the agent of the owner of the car at the time the car was received by the defendant. The action of the court in sustaining the objections of the state to the questions propounded by counsel for defendant did not prejudice the rights of the defendant.

Some complaint is made of the court’s instruction No. 7, but we find no such material error as requires a reversal. The instructions considered in their entirety fairly stated the law applicable to the facts in this case. Upon a consideration of the entire case, we are convinced that the defendant was fairly tried. The evidence is sufficient to sustain the verdict.

The case is affirmed.

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


text:
    G. S. COX v. STATE.
    No. A-6947.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 375.)

      L. Z. Lasley, Hadwiger & Hadwiger, and E. W. Snoddy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Woods county of willfully, intentionally, and unlawfully having possession of certain spirituous and intoxicating liquor, to wit, beer, wine, and corn whisky, the same containing in excess of one-half of 1 per cent, alcohol measured by volume and capable of intoxicating a human being, and was sentenced to pay a fine of $100 and be imprisoned in the county jail for 30 days. Motion for new trial was filed, considered, and overruled, exceptions duly saved, and defendant has appealed to this court.

The verdict returned by the jury, omitting the caption, is as follows:

“We the jury, duly impaneled and sworn to try the issues in the above entitled cause, do' upon our oaths, find the defendant guilty as charged and fix the penalty therefor at a fine of one hundred dollars.”

The court received this verdict, and the defendant filed a motion to dismiss the case on the ground that said verdict did not comply with the statutes of the state of Oklahoma, in fixing the punishment, nor did said verdict comply with the instructions of the court.

The defendant also filed his motion for a new trial, ■in which he alleged that the court erred in receiving the incomplete, invalid, and Void verdict; that the verdict was and is contrary to law. The defendant urges that the verdict returned by the jury was incomplete, invalid, and void, and that the court erred in receiving the same and ordering it filed, and that the verdict is contrary to law, and the instructions of the court.

The record discloses that in the seventh instruction the court instructed the jury as follows:

“If you shall find the defendant guilty beyond a reasonable doubt, it will be your duty to assess the punishment for the offense against the defendant, and. the penalty will not be less than 30 days, nor more than 6 months’ imprisonment in the county jail, and by a fine of not less than fifty dollars and not more than five hundred dollars.
“If you shall find the defendant guilty, and cannot agree upon the punishment, you will refer that matter to this court, who will then assess the punishment.”

This instruction was correct as to the law, but the jury did not follow the instructions of the court. The defendant contends that the verdict in this case was not sufficient to sustain the sentence imposed by the court. It is necessary, then, to consider the form of the verdict returned in order to ascertain whether or not the verdict is in such form as would justify the court in imposing a jail sentence, and is it sufficient to support the judgment. The jury clearly showed by the form of the verdict it returned that it did not intend to impose a jail sentence upon the defendant, notwithstanding the court’s instructions.

Section 2743, C. O. S. 1921, provides:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

In Rea v. State, 6 Okla. Cr. 366, 118 P. 815, the jury returned the following verdict:

“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the indictment herein and impose a fine of fifty dollars, and recommend that the court suspend the jail sentence.”

The court, in the opinion, says:

“The verdict in form returned is insufficient to support a judgment of conviction and sentence. Under the law, in a verdict of guilty, the jury may assess and declare the punishment, which must in cases of this kind be both fine and imprisonment, or if they fail to agree on the punishment, or do not assess the punishment, the court shall assess the punishment. Having returned an erroneous and informal verdict, it was the duty of the court to direct them to reconsider their verdict. * * * ‘If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury’.”

In this case the jury did not return a verdict in compliance with the instructions of the court. When the jury returned the verdict the court received the same without directing them to return to the jury room and prepare a proper form of verdict showing what the intent of the jury was. We hold that the jury did not intend to impose a jail' sentence upon the defendant, and that the verdict returned by the jury is insufficient to warrant the court in imposing a, jail sentence upon the defendant. It was clearly the duty of the court, when the verdict was returned in the form it was, to direct the jury to return to the jury room and prepare the proper form of verdict, showing clearly what the intent of the jury was. The verdict in this case is not sufficient to warrant the court in imposing a jail sentence, and the court should not have received the verdict and ordered the same recorded. The defendant in his motion to dismiss, and for a new trial, called the attention of the court to the form of verdict that had been returned. Both motions of the defendant were overruled by the court, and defendant duly excepted. The motion of the defendant for a new trial was well taken and should have been sustained. Wingfield v. State, 38 Okla. Cr. 435, 263 P. 158.

There are many other errors assigned and argued, some of which have merit, but, the view we take of the record, as to the form of the verdict, we do not deem it necessary to consider them.

The case is reversed and remanded.

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


text:
    BILL MILLER v. STATE.
    No. A-6464.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 374.)
    Criswell & Billingsley, 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 Seminole county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $175 and to serve 45 days in the county jail.

The judgment was entered September 21, 1926. At that time defendant was given 3'0 days in which to make and serve case-made. On October 19, a motion for additional time in which to make and serve case-made was filed asking for 30 days additional time, and on the same day the court made an order allowing 30 days additional time to make and serve case-made, with 10 days to suggest amendments, and to be settled and signed on 5 days’ notice.

The record discloses, however, that on October 15 the case-made had been served, with an acknowledgment by the county attorney of that date and that it was settled and signed by the trial judge and attested by the clerk on that date. In neither of the orders is there an extension of the time in which to file the appeal in this court. It was not filed here until January 3, 1927. In misdemeanor cases the appeal must be taken within 60 days from the date judgment is rendered unless the court or judge, for good cause shown, extend the time in which such appeal may be taken, such extension not to exceed 60 days. Section 2808, Comp. St. 1921. Under numerous holdings of this court, following the statute cited, it is settled that, unless the appeal in a misdemeanor case be taken within 60 days or within an extension of time made by the court, not to exceed 60 days additional, the appeal will be dismissed. Fenton v. State, 10 Okla. Cr. 579, 139 P. 1155; Boatright v. State, 19 Okla. Cr. 97, 198 P. 106; Wilson v. State, 24 Okla. Cr. 268, 217 P. 1057; Jones v. State, 27 Okla. Cr. 425, 228 P. 532.

The appeal is dismissed.

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


text:
    WILL THOMAS v. STATE.
    No. A-6118.
    Opinion Filed March 3, 1928.
    Rehearing Denied Jan. 12, 1929.
    (273 Pac. 514.)
    Claude Miles, for appellant.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Will Thomas, was convicted on an information charging that on July 31, 1925, he did unlawfully have in his possession 150 gallons of a compound mixture, mash, wort, and wash, fit for distillation and for the manufacture of whisky, and in pursuance of the verdict of the jury was sentenced to pay a fine of $100 and be confined in the county jail for 60 days. He appeals.

The main if not the only question presented is whether the evidence was sufficient to. sustain the verdict and judgment.

E. A. Kelly, sheriff, testified that, in company with Mr. Russell and Mr. Rushing, he drove to the home of the defendant and, under authority of a search warrant, searched the premises; that east from the house a distance of about 300 yards, near a little creek, they found three barrels full of whisky beer and three empty barrels that had contained mash, and near by about two gallons of whisky and some pieces or connections for a still; that this mixture was mash, and wash fit for distillation into whisky; that a fire near by was still smoldering; that thebe were tracks where people had walked to and from the house to this place; that the land was cultivated close up between the house and where the beer was found; that they searched the residence but did not find anything to take official notice of; that the still was found on the defendant’s place.

R. H. Russell, deputy sheriff, testified that he knew the difference between whisky beer and Choctaw beer and from his experience as an officer he knew that the contents of the barrels was whisky beer; that the fire near the still was still burning when they got there; that they also found what he called a sumpkeg.

As a witness in his own behalf the defendant testified that a boy named Sam Wright stayed around his place, ■but left the day the raid was made and he never saw him any more. He denied ownership of the mash found or the possession of the same; that he did not know who owned the parts of the still found by the officers; that he had never noticed any smoke coming from where the mash and still were found.

There was, we think, sufficient evidence to warrant the submission of the case to the jury both as to the possession and as to the character of the contents of the barrels found on the defendant's place. The trial was in all respects fair, the instructions fairly presented the law of the case, and we are unable to find anything in the record sufficient to warrant us in interfering with the verdict.

The judgment appealed from is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    T. E. SULLIVAN v. STATE.
    No. A-6244.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 372.)
    H. J. Mackey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of obtaining personal property by means of false and fraudulent representation, and was sentenced to pay a fine of $500 and imprisonment in the penitentiary for one year. Record was properly saved, and defendant has appealed from the judgment.

The fourth, fifth, and sixth errors assigned by the defendant as grounds for reversal are that the court erred in overruling defendant’s motion and affidavit for continuance; error of the court in overruling defendant’s motion for continuance to take depositions of nonresident witnesses ; error of the court in overruling the defendant’s additional or supplemental motion for continuance to take depositions of nonresident witnesses.

W. D. Hart, witness on behalf of the state, in substance, stated that the defendant came to his place of business to buy a Ford coupe; that he introduced himself and asked on what terms he could buy the coupe; that he told the defendant, and defendant did not close the trade that day but went away and came back about three days after the conversation; when he returned, we wanted to take a mortgage on the car for the balance of $245, and defendant did not want to give the mortgage, for the reason, he stated, he was selling oil leases and might have a chance to put the car in on a good trade; defendant gave certain references to look up ; that he came to Oklahoma City and found the defendant lived at the place where he said he lived; they closed the trade and defendant stated he had a note for $1,200 that he would put up with witness as security; that defendant stated to him that the Peterson Realty Company had loaned a fellow by the name of Shirley the $1,200 on the land described in a mortgage which he claimed was given to secure the $1,200; they closed the deal on the 11th day of April, 1925, and defendant told witness that H. C. Peterson was president of the Peterson Realty Company, having offices in Oklahoma City, and that J. C. Shirley was a responsible man financially, and also resided in Oklahoma City; that J. C. Shirley had executed the mortgage on the land, which was located in Atoka county.

The state introduced additional testimony attempting to show that no such company as Peterson Realty Company or H. C. Peterson was engaged in the real estate business in Oklahoma City, as represented by the defendant, nor was J. C. Shirley financially responsible, as defendant represented him to be; and the state further introduced testimony tending to show that Shirley was not the owner of the land described in the mortgage, which was located in Atoka county.

After the defendant was arraigned, and on October 26, 1925, when the issues were joined, the defendant filed a motion and affidavit for continuance for the purpose of taking the testimony of absent witnesses who were outside the state. The witnesses named were J. C. Shirley and H. C. Peterson. He also filed additional motion to take the testimony, in which he alleged that H. H. Thomas, Otis Malcomb, Jack Spain, S. P. Lansford, C. Methevn, and F. E. Harper were material witnesses for his defense, and asked that the case be continued for the purpose of taking the depositions. The record shows that one motion for continuance for the purpose of taking the deposition of H. C. Peterson and J. C. Shirley sets out in full what he expected to prove by the said witnesses, alleging that he could show by Peterson that he was engaged in the real estate business at the time defendant purchased the car from the prosecuting witness Hart, and that'J. C. Shirley was the agent and representative of the American Manufacturing Sales Company. All of the motions of the defendant for continuing the case until he could have an opportunity to take the deposition of the witnesses named gave their post office address, and in each of the motions the allegation of the defendant was that the witnesses’ testimony was material to the defense of the defendant, and in one of the motions it was specifically set out as to what the 'testimony of H. C. Peterson and J. C. Shirley would show, which, if true, under the theory of the prosecution in this case, that no such company as the Peterson Realty Company existed, and J. C. Shirley was not the agent of the American Manufacturing Sales Company, and not financially responsible, was material to the defendant’s defense.

Notice was served on the state of the intention of the defendant to apply to the court for a commission to take the testimony, and it is argued by the representative of the state that the defendant did not show due diligence, but it is not denied by the state that these parties had at one time resided in the city of Oklahoma City, and the state did not agree to admit that the witnesses whose depositions he desired to take, if present, would testify to the facts set up in the affidavit and motions for continuances for the purpose of taking the depositions. To the overruling of the motions of the defendant to have the case continued for sufficient time to take the depositions of nonresident witnesses, defendant duly excepted.

Section 2853, C. O. S. 1921, is as follows: “When an issue of fact is joined upon an indictment or information, the defendant may have any material witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.”

Section 2854, C. O. S. 1921, provides the manner of making application to the court to secure an order of the court providing for a commission to- be issued to take depositions.

Section 2855, C. 0. S. 1921, of the same statute provides the manner in which the application shall be made and the grounds to be set forth in the applications; and section 2856, C. 0. S. 1921, provides for the number of days’ notice to be given the county attorney before the hearing.

Section 2857, C. 0. S. 1921, provides as follows: “If the court or the judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.”

The question to be determined in this case under the law is, Was it an abuse of discretion of the court in refusing to issue a commission directed to a proper person to take the depositions of the witnesses stated in defendant's application?

The motions made by the defendant in this case are voluminous and would not be classed as models, yet they are sufficient to justify the court in considering the same. The testimony desired, if true, was material to the defense of the defendant and he was entitled to have the testimony by following the statute in attempting to secure the same, and the verdict of the jury might have been different had the defendant been able to show by the witnesses named in the application for continuance that the Peterson Realty Company was a company doing business at the time he purchased the car, and that J. C. Shirley was the agent of the American Manufacturing Sales Company, and was a man of some financial standing. In view of the testimony of the state, and in view of the further fact that the defendant substantially followed the law in making his application for continuance to take the deposition of the witnesses, we hold it was a manifest abuse of judicial discretion in overruling the application of defendant for a continuance and refusing to issue the commission to take the depositions of the nonresident witnesses; that the action of the court in overruling the motions and application of the defendant was an error prejudicial to the rights of the defendant, and defendant’s exceptions to the action of the court in overruling his application asking for a commission to take depositions of nonresident witnesses, and in overruling his motions asking for a commission to take the depositions, were well taken. Riley v. State, 40 Okla. Cr. 369, 269 P. 377.

There are other errors assigned and argued by the defendant, some of which seem to have merit, but the view we take of this record it is not necessary to consider them.

The case is reversed and remanded. •

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


author: PER CURIAM.

text:
    BERT BUXTON v. STATE.
    No. A-6394.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 372.)
    Jas. A; Embry, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Lincoln county on a charge of having possession of a still and was sentenced to pay a fine of $150 and to serve 3’0 days in the county jail.

Judgment was entered on July 27, 1926. At that time defendant was given 60 days in which to prepare and serve the case-made for appeal. Ten days was allowed to suggest amendments and to be settled and signed on 5 days’ notice. On September 18, an order of 20 days additional to make and serve case-made was entered, 3 days to suggest amendments, and to be settled and signed on 3 days’ notice. Neither order included an extension of the time within which to file the appeal in this court. An order extending the time to make and serve a case-made does not automatically extend the time within which to file the appeal, and unless an order of extension of time to file the appeal is made it must Be filed within the 60 days provided by section 2808, Comp. St. 1921.

The appeal is dismissed.


text:
    C. W. WINGER v. STATE.
    No. A-6552.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 366.)
    Roberson & Roberson, 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 C. W. Winger, in Canadian county, on or about the 15th day of July, 1927, did unlawfully and willfully convey and transport corn whisky from a building on lot 3, block 14, of the town plat of Okarche to another point in said town, about 50 feet west of said building.

On the trial the jury returned a verdict finding him guilty and assessed his punishment at a fine of $100 and a jail term of 30 days.

To reverse the judgment rendered on the verdict, he appeals.

The undisputed facts are that two deputy sheriffs, armed with a search warrant for the search of a building in the town of Okarche, concealed themselves in a building nearby, the building for which they had a search warrant, the buildings being about a hundred feet apart. They testified they saw appellant go to a door of the building for which they had a search wárrant, and appellant reached inside the door and got something they thought to be a bottle and put it in his pocket and then started west on the sidewalk. The officers followed him and halted him and without his consent searched and took from his person a small bottle of whisky.

The testimony was admitted over the defendant’s objection on the ground that the same had been procured by an unlawful search and seizure of the defendant’s person.

When the state rested, defendant demurred to the evidence and moved the court to advise the jury to return a verdict of acquittal on the ground that the intoxicating liquor was taken from the pérson of defendant without his consent and in violation of his constitutional and statutory rights, which demurrer was overruled and motion denied.

In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, it is held:

“It is unlawful under section 30, art. 2, of the Constitution of this state, forbidding unreasonable searches and seizures for an officer, without a warrant authorizing it, to search a person.”

And further held:

“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.”

Under the holding of this court in the Keith Case, supra, the court erred in overruling defendant’s motion for a directed verdict of acquittal.

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

The judgment is reversed and cause remanded, with direction to discharge defendant.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CLINTON C. NANCE v. STATE.
    No. A-6056.
    Opinion Filed Jan. 2, 1929.
    Rehearing Denied Jan. 14, 1929.
    (273 Pac. 369.)

      D. P. Parker and Dan Huett, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This was a criminal prosecution commenced in the county court of Harper county, in which it is charged upon information that the defendant, Clinton C. Nance, published in a newspaper named the Fish Hook, certain false, malicious, defamatory, and libelous statements of and concerning one Tom Ricker, and caused the same to be distributed and circulated in Harper county, Okla. .

A trial was had before the court and jury, and the defendant was found guilty, and his punishment fixed at a fine of $225. A motion for new trial was duly filed and overruled, also a motion in arrest of judgment was filed and overruled. From the judgment, defendant appeals to this court.

The demurrer interposed to the information in this case attacks, first, the jurisdiction of the court to try the cause, second, the authority of B. F. Willett, the special county attorney appointed by the court, to prosecute the same.

It appears that at the time of the commencement of this action B. F. Willett was the duly elected and acting county attorney, and he instituted the prosecution by filing what is styled in the record a criminal complaint. When the case came on to be heard, Mr. Willett had been succeeded in this office by T. G. Cook, who it appears had been attorney for the defendant in this cause before he entered upon his duties as county attorney, and it was therefore objected by the defendant that the. said T. G. Cook was disqualified, and could not file a new pleading styled an information, as ordered by the court upon sustaining the demurrer to the criminal complaint, for the reason that he had been the attorney for the defendant prior to his election as county attorney. The county court of Harper county, after hearing evidence upon these matters, appointed B. F. Willett as special county attorney to prosecute this defendant, Clinton C. Nance, and directed the special county attorney to file a new charge in the form of an information against the defendant. This information was duly filed, being signed by B. F. Willett as an appointed and qualified county attorney. These proceedings are shown by stipulation entered in the record by and between attorneys, the material part of which is as follows: “It is hereby stipulated and agreed that at the April Term 1925 of the county court of Harper county, Oklahoma, the above cause was called and in support of the various pleadings filed and passed on at that time evidence was taken to the effect that T. G. Cook was county attorney of Harper county, at that time and had been since the first Monday in January, 1925, and that T. G. Cook had been employed by defendant before his election and qualification as such county attorney in this case and B. F. Willett was appointed by the county judge of Harper county, Oklahoma, to prosecute this case as shown by the order to that effect on file in this court in this case; that such appointment and the oath filed by said B. F. Willett in this case was the authority under which he was acting at that time and that M. A. Holcomb was acting under employment of Tom Ricker, the prosecuting witness in this case and that at the time the original complaint was filed in this case, B. F. Willett was the county attorney of Harper county, Oklahoma, and continued as such until the first Monday in January, 1925, at which time his term of office expired and he was succeeded by T. G. Cook as such county attorney; that this stipulation may be considered by the Criminal Court of Appeals in this case in lieu of said testimony taken on April 20th, 1925, at said April Term 1925 of the county court of Harper county, Oklahoma, and has been lost or misplaced and that the stipulation shall be taken as fully and completely covering said testimony.” Signed by attorneys for defendant and state.

In this connection the court also makes the following finding in the record: “And thereupon after the defendant has filed his motion objecting to the appointment and action of B. F. Willett as a prosecutor representing the state of Oklahoma, the court further finds that at this time there is no district judge in Harper county, Oklahoma, and that there is no representative of the attorney general’s office in Harper county, Oklahoma, and that this court has the inherent right as judge of a court of record to appoint an attorney as prosecutor herein. Said court finds that because of the disqualification of the county attorney there is no one other than B. F. Willett to represent the state and overruled the motion of defendant, to which ruling of the court said defendant excepts.”

The evidence shows or tends to show: That the defendant, Clinton C. Nance, who was or pretended to be, a Baptist minister, was the editor and publisher of a paper called the Fish Hook. That the objectionable matter, which is libelous per se, in the information, was published and distributed widely by the defendant, Nance, in a certain issue of his publication, and that the same was so published and distributed with the unlawful and malicious and libelous intent to hold the prosecuting witness, Tom Ricker, up to public contempt and ridicule; and to injure him in his reputation, good name, and occupation; and the testimony indicates in addition that the matters published by the defendant, Clinton C. Nance, of the prosecuting witness, Tom Ricker, were such as to make this defendant guilty of criminal libel as charged in the information. The publication of the matter in question is clearly proven, a copy of the Fish Hook, of the date named in the information, was in evidence before the jury, and it is conclusively established that the publication was libelous and slanderous per se; that it was widely distributed by the defendant, and that the effect of such distribution was as alleged. There is no justification proven and no defense of truth established.

The publication of this article by defendant comes squarely under section 1800, C. O. S. 1921, as follows: "Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.”

The penalty provided therefor is found in section 1802, C. 0. ,S. 1921, as follows: “Any person who makes, composes or dictates such libel or procures the same toi be done; or who willfully publishes or circulates such libel; or in any way knowingly or willfully aids or assists in making, publishing or circulating the same shall be punishable by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars, or both, and shall also be civilly liable to the party injured.”

The record does not establish the defense to this action provided by section 1803, Id., as follows: “In all criminal prosecutions or indictments for libel, the truth thereof may be given in evidence to the jury, and if it be made to appear by the defendant that the matter charged as libelous was true, and in addition thereto was published with good motives, and for justifiable ends, or was a privileged communication, the defendant shall be acquitted.”

It is first contended that the county court of Harper county had no jurisdiction of the subject-matter of the action, or of the person of the defendant, in the said court has no jurisdiction of the offense of criminal libel.

In support of this assignment, counsel cites section 12, art. 7, of the state Constitution, defining the jurisdiction of county courts.

In Jackson v. State, 10 Okla. Cr. 549, 139 P. 704, this court held that the limitations contained in section 12 of article 7, of the state Constitution, defining the jurisdiction of county courts, applied only to civil causes, and have no application to criminal prosecutions.

In the opinion it is said: “The clause in said section that the county court shall not have jurisdiction in actions of slander or libel has reference only to civil actions.”

It is further therein provided:

“ ‘The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which the justices of the peace have no jurisdiction.’
“■A misdemeanor is every crime other than those which are, or may be punishable with death, or by imprisonment in the penitentiary.” (Penal Code, secs. 1503 and 1504, C. S. 1921.)

Under section 1802 of the Penal Code, already quoted, criminal libel is made a misdemeanor. The county court of Harper county, therefore, not only had jurisdiction, but, in a county having no superior court, it had exclusive jurisdiction of this offense.

It is next contended that said county court “had no jurisdiction or authority to appoint a special prosecutor to-perform the duties of county attorney, and the acts of such prosecutor are wholly void.”

Section 2725, Procedure Criminal, provides as follows: “If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.”

It has been repeatedly' held by this court, where the county attorney is disqualified, that independent of any statute the trial court has inherent power to appoint a special attorney to perform the duties of the county attorney, in order to avoid delay and to prevent a miscarriage of justice. Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636.

In the case of Byxbee v. State, 41 Okla. Cr. 272, 272 P. 493, it is held: “Where the record shows that the court entered an order appointing a special prosecutor, on the ground that the county attorney was disqualified, the demurrer and motions to the information on that ground, that the special attorney was not authorized to file an amended information, were properly overruled.” To the same effect is the case of Hayes v. State, 41 Okla. 302, 274 P. 41.

It follows from these authorities that the demurrer to the information and the motion in arrest of judgment were properly overruled.

In the information in this case is set forth the alleged libelous article, which reads as follows: “Listen to me old farmer: If I were the worst old woman chaser and pimp in the county I would still be an angel beside this she man. In every town where he has lived the decent people have cried out ‘unclean’ against Ricker. He has family trouble just because he didn’t live up to marriage vows. He has a reputation about like a run-about town dog. He has permitted the office of Assessor to be used for everything but what it should be used for. Do you want a man who doesn’t give a pip about your daughter only to satisfy his passions? A leper who would let bad women live in your town to ruin the life of your pure boys ? Who would cater to any old degenerate just to cover up his own dirty sins. I am not telling you half of what has transpired in the life of this she man. I can prove it.”

On the trial the defendant testified that he was a. Baptist minister, lived at Enid, and was editor of the newspaper published at Enid, known as the Fish Hook; that the article that was published in his paper August 1, 1924, was written by him, and that he was responsible for everything that appeared in his paper.

That the article in question was based upon information he received from citizens of Buffalo and vicinity, including Waynoka; that he had nothing in the world against Mr. Ricker, no malice or ill will.

We have read the record with care, and we have failed to find any competent evidence tending to show that the alleged libelous matter was true, or that the same was published for justifiable ends.

There were exceptions to rulings of the court on the admission and exclusion of evidence during the course of the trial, which we have not overlooked, but which we do not consider of sufficient merit to require discussion.

A number of exceptions were taken to the rulings of the court in giving and refusing instructions. There were several instructions offered, and it would be strange if the rulings were beyond all criticism, but, taken as a whole, the law of the case was fairly presented in the instructions given. The last assignment urged is alleged improper remarks by the prosecuting attorney in his argument to the jury.

The settled rule is that the prosecuting attorney has the right and privilege in his argument to the jury to refer to the evidence, and state his deductions therefrom, and urge upon the jury the truth or falsity of any testimony given in the case, and the remarks of the prosecuting attorney in his argument will be considered and construed in reference to the evidence. In order to constitute reversible error, the impropriety indulged in must have been such as may have improperly influenced the verdict. Allen v. State, 13 Okla. Cr. 395, 164 P. 1002, L. R. A. 1917F, 210.

Upon a careful consideration of the record, we are of the opinion that, when the jury had proceeded so far as to find the witnesses for the state worthy of belief, any other verdict than the one returned would have been a reproach upon the administration of justice in the state.

It appearing that appellant had a fair trial, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte ANDY GRANT.
    No. A-6053.
    Opinion Filed Jan. 19, 1929.
    (273 Pac. 1118.)
    Walter Mathews, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

This is an original action in habeas corpus. The state demurred to the petition. The demurrer was sustained. The action is dismissed.


text:
    TOM GUILROY v. STATE.
    No. A-6653.
    Opinion Filed Jan. 12, 1929.
    (273 Pac. 1118.)
    L. A. Wallace, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

On information charging that in Okmulgee county, on or about the 8th day of May, 1926, the defendant, Tom Guilroy, did feloniously steal one certain red cow, the property of Scott Redick, he was tried, found guilty of larceny of live stock as charged in the information, and his punishment fixed at five years in the penitentiary. From the judgment rendered in pursuance of the verdict an appeal to this court was duly perfected.

The case was called for final submission; no brief having been filed, it was submitted on the record. Thereafter his counsel of record filed a motion to dismiss the appeal.

The motion to dismiss is sustained, and the appeal herein is dismissed. ,


author: EDWARDS, P. J.

text:
    MARION JEWELL v. STATE.
    No. A-6756.
    Opinion Filed Jan. 19, 1929.
    (273 Pac. 366.)

      Paden & Douglas and Cargill & Whiteside, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of murder, and his punishment fixed at death.

The first assignment of error argued is that the court erred in denying defendant a change of venue. In his application, defendant made affidavit that the minds of the people of Adair county were so prejudiced ag'ainst him that he could not have a fair trial, because of lurid accounts of the homicide carried in the newspapers of that county and widely circulated among the people. This application does not set out the facts constituting prejudice, and does not have attached three affidavits in support thereof. Defendant took the stand on the hearing on this application and testified he believed he could not have a fair trial. The state contested this showing, and offered affidavits of nine witnesses from different parts of the county who> testified they believed defendant could have a fair trial. Section 2628, Comp. St. 1921, permits a change of venue on the application of a defendant, where he sets out facts showing prejudice on the part of the inhabitants of the county supported by the affidavit of at least three credible persons, residents of the county. An application is addressed to the sound discretion of the trial court, and, unless an abuse of discretion is shown, the overruling of such application is not error, and, where the showing made by a defendant is fully answered and clearly overcome by a counter showing, there is no abuse of discretion in overruling the application. Johnson v. State, 35 Okla. Cr. 212, 249 P. 971.

It is next argued that the court erred in overruling defendant’s application for a continuance. The offense was committed February 25. Defendant had a preliminary on March 3, and was held for action of the district court. He was arraigned on March 7, and the case was then set for trial March 17; on that date was continued until March 24, at which time the case went to trial. Judge Arnold represented defendant at the preliminary. Mr. Douglas, who appeared as attorney in the trial, was employed on March 10, and Judge Arnold withdrew on March 11. Complaint is made that counsel did not have time to prepare for trial, and that this case was advanced ahead of other cases on the docket. The showing was made that the cause was advanced on account of defendant being unable to give bond, and was set along with other defendants who were unable to give bond, ahead of other cases older on the docket. There is nothing improper in this action. In view of the fact that counsel had some 14 days from the time of his employment until the trial to prepare, and in view of the fact that the crime charged was committed at Westville, the county seat, we think there was no error in putting the case to trial on March 24. Defendant’s counsel tried the case closely, and there is no indication of lack of time to prepare for trial. Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Hunter v. State, 23 Okla. Cr. 125, 212 P. 1014; Queen v. State, 23 Okla. Cr. 146, 212 P. 1021; Lucas v. State, 26 Okla. Cr. 23, 221 P. 798.

Some contention is made that the court erred in admitting a statement made by defendant to the county attorney prior to his having employed counsel. Some 3 days after the homicide, while, defendant was incarcerated in jail, he was brought to the county judge’s office and questioned by the county attorney, and his statement taken. Defendant was advised that any statement made might be used against him, and was then asked if he would make a free and voluntary statement, to which he assented. It ■is well settled that the fact that a defendant is under arrest and in jail does not affect the admissibility of a voluntary statement made by him, otherwise competent, although he is not warned that such statement may be used against him. Mays v. State, 19 Okla. Cr. 103, 197 P. 1064, and authorities there cited; Taylor v. State, 27 Okla. Cr. 165, 225 P. 988.

We know of no reason why the voluntary statement of an accused person may not be taken in the absence of counsel, and no reason why at the time of making a voluntary statement he may not be questioned by the officers, so long as no methods are indulged in which would render the statement involuntary. In the statement of defendant referred to he stated he had been convicted of a violation of the prohibitory liquor law, and this was introduced along with the other part of the statement. It is now urged that this constitutes an attack on the character or reputation of defendant when he had not placed it in issue. There might be some force in this contention if defendant had not later taken the stand and testified that he acted in self-defense. This was, in substance, the same statement made by him to the county attorney. Upon cross-examination he testified be had been convicted. Having taken the stand, this evidence of a former conviction was admissible. In this connection, however, it may be well to state that an objection to this part of the statement was not specially pointed out, but the objection was to the statement as a whole, on the ground that it was inadmissible as not being voluntary, and for the reason that defendant at the time was not advised of his right to counsel. His counsel not having objected to this particular part of the statement, he is not in a position now to assert that its admission was error. Wratislaw v. State, 18 Okla. Cr. 150, 194 P. 273; Deupree v. State, 27 Okla. Cr. 87, 224 P. 993; Reagan v. State, 35 Okla. Cr. 332, 250 P. 435.

Next it is urged that the court unduly restricted the cross-examination of the state’s witness, Oma Kirk. The court did too closely limit the cross-examination of the witness, hut he informed counsel at the time that the matter sought to be brought out on cross-examination might be asked the witness upon his making her his witness for that purpose. This was done, and the witness testified fully to the matters sought to be elicited. Such error as there may be upon this point is inconsequential, and was cured by the testimony of the witness later on. Lucas v. State, 26 Okla. Cr. 23, 221 P. 798.

Several other assignments of error are touched upon in the briefs, among them the matter of the refusal of the witness for the state, Oma Kirk, to talk to defendant’s counsel. This witness, in the face of an admonition from the trial judge and the counsel for the state, for some reason at first declined to talk to defendant’s attorney, but it appears that on the morning before the case went to trial she did inform counsel she was willing to talk to him, and counsel did not avail himself of the opportunity.

Also there is some contention that there was error in overruling the challenge for cáuse to the juror Creekmore, and also in one of the court’s instructions. The voir dire of the juror shows him to be qualified. No exception was taken to the instruction complained of. We have examined fully these and the other matters discussed in the briefs. None have been overlooked, and no other assignment is of sufficient importance to require special discussion.

On account of the gravity of this case and the fact that the highest judgment known to the law, the death penalty, has been imposed, we have scrutinized the record and evidence with care. The record discloses that on the night of February 25, 1927, defendant with Oma Kirk and Jack Robbins were in an automobile, and had stopped on the street in the residence section of the town of Westville when Tom Rather and J. R. Maberry, night policemen, came up. Rather inquired who was in the car, and defendant inquired who Rather was, and then got out of the car, and almost immediately fired two shots and killed Rather. There was some testimony that words in the nature of a quarrel passed between defendant and Rather just after defendant stepped out of the car, and also some testimony that there was ill feeling between the two, and that deceased had made threats against defendant. The defendant testified that at the time of the shooting he believed deceased was about to shoot him and that he acted in his necessary self-defense.

As a matter of judicial history, it is well known that many states have abolished the death penalty. In those states in which it is yet a part of the criminal code, it is inflicted only in the most extreme and aggravating cases. Here the evidence, we think, amply sustains the charge of murder; but, considering all the evidence from the viewpoint both of the state and the defendant, we have reached the conclusion that justice requires that, under all the circumstances, the judgment should be modified by reducing the punishment from the death penalty to imprisonment for life at hard labor.

The judgment is modified from the death penalty to imprisonment for life at hard labor, and, as modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.