text:
    J. M. CHAPMAN v. STATE.
    No. A-8207.
    Oct. 24, 1931.
    Rehearing Denied Nov. 14, 1931.
    (4 Pac. [2d] 762.)
    James H. Mathers, and J. A. Bass, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of six years.

The evidence of the state was:

That W. O. Black was the keeper of a filling station operated and owned by the Tank Car Station, Inc., located in Oklahoma City, on South Walker street, at the north end of the viaduct on that street. That defendant and another man unknown to Black appeared at the filling station about 1 o’clock in the morning. That defendant covered Black with his revolver, and took $12.19 out of Black’s pocket. That defendant forced Black to stand near the pumps at the filling station after the robbery. That Black noticed that the automobile defendant and his partner were traveling in was a model A Ford coupe, and that it bore Oklahoma state license tag No. 463708. That Black immediately notified the officers, and that at 7 o’clock on the same evening the officers arrested defendant and a woman in this Ford coupe, bearing this particular license number, and that they found on the shelf in the coupe, back of the seat, a 38 caliber revolver, which Black testified was the same kind of a revolver used by defendant in the robbery.

That, after the officers arrested defendant, they took him to the police station. That defendant there admitted that he had committed the robbery, assisted by his brother, but that his brother had disappeared, and that he did not receive any part of the money.

Defendant, testifying for himself, denied that he had committed the robbery or that he had made any statement to the officers, and sought to show that he was in Chick-asha at the time the robbery was committed.

Defendant in his brief says :

“There are many assignments of error alleged in the motion for a new trial, and also in the petition in error filed herein, but we desire to especially call the court’s’ attention to- assignment No. 6: ‘Because the court erred in admitting incompetent, irrelevant, hearsay, immaterial and prejudicial evidence, duly excepted to at the time,’ and also assignment No. 8: ‘Because the court erred particularly in admitting, over the objection of the defendant below, certain witnesses for the prosecution to testify as to what witnesses said in identifying the alleged robbery, and what was said as to the description number, etc. of the car and a description of the alleged robber.’ ”

An examination of the record discloses that on direct examination the complaining witness, Black, was permitted to testify, without objection, that he got the car number, and on the following- Monday went down to the police station and there saw five men, and that he picked the defendant out of the five as being the man who robbed him. When the witness was asked as to how he picked the defendant out, counsel for defendant objected, and the objection was sustained.

It further appears from the record that on redirect examination the witness Black was asked if he did not have information from the police officers that the other man who robbed him was Denny Chapman. This was objected to by counsel for defendant and sustained by the court.

It further appears from the record that Officer Whalen, testifying for the state, was asked if he had information that the description of the car was the one that robbed this filling station. This was objected to by defendant’s counsel, and objection sustained by the court. This witness was asked: “Q. What did you arrest him for? A. We had a tag number of the car that done the hijacking.” This was objected to by counsel for defendant, who moved to strike the answer, which was sustained by the court. This witness was then asked if they had the tag number of the car that robbed the Black filling station. This was objected to by defendant’s counsel, and the court ruled that it was proper for the officer to state whether he had the tag number, but it was improper to state that it was the car that robbed the filling station, and instructed the jury not to consider that question.

When Officer Milam was testifying as a witness for the state, he was asked: “Q. Did he tell you whose car he had out there and used?” This question was objected to as leading, and objection sustained by the court.

Defendant urges under assignment No. 8 that this case falls within the rule laid down in McCandless v. State, 49 Okla. Cr. 116, 295 Pac. 412, where this court reversed tbe case because tbe trial court permitted tbe state to introduce extrajudicial identifications.

Tbe McCandless Case is not in point, for the reason that this record discloses that tbe trial court refused to permit tbe state to. introduce any evidence of extrajudicial identifications, except that tbe complaining witness, Black, was permitted to testify, without objection on the part of tbe defendant, that, when he visited tbe police station be picked defendant out of five men as being the man who held a gun on him and robbed him. No objection was made to tbe reception of this testimony, nor any exceptions taken thereto, nor any motion made to withdraw it from tbe jury.

Tbe errors complained of being without any substantial merit, tbe cause is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BILL PIPPIN v. STATE.
    No. A-8238.
    Nov. 14, 1931.
    (4 Pac. [2d] 1076.)
    Charles C. Ozmun, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   PER CURIAM.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Comanche county of pointing a pistol at another, and was sentenced to pay a fine of $50 and to serve 90 days in the county jail.

Judgment was entered on May 18, and the appeal was lodged in this court on August 20. Orders of extension to: make and serve case-made were entered, but no order extending the time to' file the appeal was made. An order extending the time to make and serve case-made does not automatically extend the time to file the appeal. Wilson v. State, 24 Okla. Cr. 268, 217 Pac. 1057.

The attempted appeal is dismissed.


author: CHAPPELL, J.

text:
    DAN PETTIGREW v. STATE.
    No. A-8127.
    Nov. 14, 1931.
    (4 Pac. [2d] 1077.)
    J. W. Bolen and King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

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

Defendant is charged with having killed one Julian Wolfe on the 21st day of July, 1929. Both defendant and deceased were Indians, and this killing occurred at a “Pashofa” at the home of one Yakatubby, in Pontotoc county. The evidence of the state by three eyewitnesses was that at about 4 o’clock in the morning, defendant shot and killed the deceased without any provocation.

Defendant testified that he shot the deceased in self-defense; that at the time he fired the shot deceased was making an attack upon him with a club about three feet long and about three inches thick, and that deceased struck him at least six times before he fired the shot that killed deceased.

Defendant called Johnson Petish as a witness in his behalf, who testified that he was near where the killing occurred, but did not know exactly how it occurred, and did not see any club or gun in the hand of deceased.

Defendant makes the usual contention that this evidence is insufficient to support the verdict of the jury.

There is a conflict in the evidence, which was for the jury. They saw the witnesses and heard them testify, and settled this conflict in favor of the state. The verdict of the jury is supported by the evidence.

Defendant next contends that the court erred in giving instruction No. 2-A, on reasonable doubt. •

The instruction complained of is in the exact language used in Brantley v. State, 15 Okla. Cr. 6, 175 Pac. 51. In commenting on this instruction, on page 24 of the Oklahoma report (175 Pac. 51, 56), it is said: “While the general rule often stated by this court is that trial courts should not give definitions of ‘reasonable doubt,’ except upon the request of the defendant, we are of the opinion that the instruction here given did not constitute material error.”

Such setting out and approval of the instruction in the Brantley Case was in effect an invitation to trial judges of the state to use this instruction.

While it is the better practice not to define the term “reasonable doubt,” no better instruction defining the term than that approved in the Brantley Case could be found or given by the trial judges of this state, and the giving of the same was not reversible error.

Defendant next contends that the trial court erred in giving instruction No. 8, on the subject of self-defense.

Instruction No. 10, given in the case of Brantley v. State, supra, and copied in the opinion on page 14 of said report, is verbatim the same as this instruction, with the exception of the use of the name of the deceased in that case—the name of the deceased in this case being omitted from the instruction—but the law stated is exactly the same. That instruction was specifically approved by this court where the issue was self-defense and the facts presented a question of whether or not the force employed to repel an attack as testified to by the defendant in this case was more than reasonably appeared to him to be necessary.

A careful examination of the record reveals no reversible error. The cause is therefore affirmed.

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


author: DAVENPORT, P. J.

text:
    GUSTAVA WILLIAMS v. STATE.
    No. A-8043.
    Nov. 21, 1931.
    (5 Pac. [2d] 410.)

      Wm. B. Thompson and John L. Ward, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged with assault with intent to kill, and convicted of assault with a dangerous weapon, and sentenced to serve a term of two years in the penitentiary, and to pay the costs of the prosecution; from which judgment the defendant appeals.

The defendant was charged with assaulting Cande Parker. The testimony tends to show that for more than two years prior to the date of the assault Carrie Parker and the defendant had not been friendly. On the day of the alleged trouble, Carrie Parker, near 6 o’clock in the afternoon, was on her way to her work at what was known as the McDonald Cafe. In going to her work she passed the rooming house of the defendant. She met a man by the name of Luther Gaynor, and was talking to him when defendant came by. Carrie Parker stated “the defendant walked past us to within five or six steps of her rooming house, and said to a girl that was with her, ‘I hit the black son of a bitch and she had better not say any thing.’” The testimony further tends to show that when she made that remark the prosecuting witness asked her why she hit her, and defendant pulled a pistol from under her arm and began shooting at the prosecuting witness, who threw up her arms, and backed back toward the entrance of the McDonald Cafe. The prosecuting witness went into the cafe and from there to the doctor’s office. As she came out of the cafe on her way to the doctor’s office, the defendant fired another shot at her. The testimony shows that two of the bullets fired by the defendant hit the prosecuting witness, Carrie Parker, one in the arm and the other in the body.

Several eyewitnesses substantially corroborate Carrie Parker as to what took place between her and the defendant before the defendant began shooting; all testifying that the prosecuting witness did not have a knife in her hand.

The defendant, testifying in her own behalf, stated the prosecuting witness had threatened to kill me, and on the day of the trouble, as I approached her she threatened to kill me, and struck at me with a knife, and I believed the prosecuting witness intended to kill me, and I drew my pistol and fired. Other testimony on behalf of the defendant tended to corroborate the defendant that the prosecuting witness had a knife in her hand.

The record is voluminous, and many questions were gone into in the trial that were immaterial to the case; many improper questions were asked, and some evidence was admitted by the court that was not properly admissible. The evidence as to what took place at the time of the shooting is conflicting.

The defendant has assigned several errors' alleged to have been committed by the trial court; the second assignment being that the verdict of the jury is not sustained by the evidence, the fifth, that the court erred in failing or refusing to submit to the jury instructions 1, 2, 3, 4, and 5, requested by the defendant. The defendant in her argument insists that the verdict is contrary to the evidence, and urges that her case should he reversed and a new trial granted. It is also urged by the defendant that the court permitted the state to attack the character of the defendant before she had first put her character in issue by showing evidence of good character.

The record has been examined and the questions propounded by the state and the answers given carefully considered. Many of the questions propounded were not material to the issue in the case, and the objections to the same should have been sustained, but, after a careful consideration of the entire record, it is clear that the questions permitted to be answered, over the objections of the defendant, did not prejudice the rights of the defendant before the jury. Some of the improper questions propounded were permitted to be answered without any objection on the part of the defendant.

After a careful consideration of the facts disclosed by the record, we hold that the evidence is sufficient to sustain the judgment. The instructions of the court correctly stated the law applicable to- the facts. Where the general instructions substantially cover the questions of law included in special requested instructions, it is not error for the court to refuse to' give the requested instructions.

After a careful consideration of the facts disclosed by the record, we believe that the punishment inflicted is excessive and should be modified to one year in the penitentiary, and, as modified, the judgment is affirmed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    E. F. STEPHENS v. STATE.
    No. A-8233.
    Nov. 21, 1931.
    (5 Pac. [2d] 409.)
    J. S. Estes and Charles G. Moore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of McClain county of selling intoxicating liquor, and was sentenced to pay a fine of $150, and to be imprisoned in the county jail for 30 days, and appeals.

The principal contention is that the court, over the objections of the defendant, permitted disqualified jurors to serve, and he was thereby deprived of a fair trial. ’ The record shows that, preceding the trial of this case, Jim .Skinner, an employee of the defendant, had been tried by a jury, on a charge growing out of the same transaction at the same place and at the same time, which returned a verdict finding Skinner guilty. In the trial of the Skinner Case, the same prosecuting witnesses were used that were used in defendant’s case.

The record discloses that, when the jury was called, the following named jurors who had served as jurors in the Skinner Case were called: Miser, Todd, Nix, Knight, Dyer, and Alcorn; and A. S. Wilson, who was a cousin of the prosecuting attorney; that in the examination of the jurors on their voir dire they testified they could render a fair and impartial trial according to the evidence. Each of the jurors named was challenged by the defendant and challenge overruled, and exceptions saved. The defendant was then forced to exhaust all of his peremptory challenges and to accept a jury with the juror Dyer, who had served in the Skinner Case, and A. S. Wilson, who was a cousin of the prosecuting attorney.

It is evident that under these circumstances a juror who had tried Jim Skinner was disqualified to enter upon the trial of the defendant. The law permits the calling of talesmen to fill out a jury panel, and a reasonable desire to give the accused a fair trial would require that the jurors under the circumstances narrated should be excused, and, if necessary, talesmen called. Section 20, art. 2, of our Constitution, among other things, provides that: “In all criminal prosecutions the accused shall have the right to a * * * trial by an impartial jury.”

In many cases this court has said that, where the fairness and impartiality of a juror is called into question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of the accused. The mere fact that the juror may be of the opinion that he can try al case fairly and impartially is not alone a test as to his competency. Popp v. State, 44 Okla. Or. 220, 280 Pac. 478; Lane v. State, 51 Okla. Or. 107, 299 Pac. 923.

The overruling of the challenge for cause was prejudicial error, depriving the defendant of a fair trial.

The cause is reversed.

EDWABDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    CHARLES HUCKABE v. STATE.
    No. A-8129.
    Nov. 21, 1931.
    (5 Pac. [2d] 408.)
    Williams & Sasseen, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the unlawful possession of intoxicating liquor, and sentenced to pay a fine of $225, and to be imprisoned in the county jail for 60 days, and has appealed.

The testimony on behalf of the state tends to show that the officers secured a search warrant to search the premises of the defendant; they went to the home of the defendant and searched his home and the buildings on its curtilage and found no intoxicating liquors. It further shows that after they had searched the defendant’s home and buildings on the curtilage, they went to an old place owned by J. H. Beck, which place was shown by the record to be seventeen 25-foot lots, or a distance of 425 feet from the defendant’s home; they searched a dugoot on the Beck lots and found a quantity of whisky.

The only evidence introduced by the state that tends to connect the defendant with the whisky is the evidence that the defendant had put some fence around the lot for Beck, and had some chickens that ranged as far from home as the Beck lots. The testimony further shows, and by a plat exhibited, that there are a number of houses occupied by families closer to the Beck place than the defendant. The main house on the Beck place had been destroyed by fire, leaving the garden spot and dugout on the place. The testimony shows that the fence on the north side of the Beck lots was down and parties could go on the Beck lots at will. It was further shown that there was a garden growing on the lots and different parties went to the lots to gather greens.

The defendant testified that he knew nothing about there being any whisky on the lots and that he had no control of the lots other than he had at one time put up some fence for the witness J. H. Beck inclosing two sides of the lots, and that a public street or highway passed by the Beck property. J. H. Beck testified that the defendant had no control over his lots where the officers claim the whisky was found. This is in substance all the testimony.

The defendant has assigned several errors alleged to have been committed by the court in the trial of the case, the first being that the trial court erred in overruling the motion of the defendant for a new trial. In defendant’s motion for a new trial he raised the question of the sufficiency of the evidence to sustain the judgment. We agree with the contention of the defendant that the evidence is not sufficient to sustain the judgment. In fact; there is no testimony that in any way whatever connects the defendant with the actual or constructive possession of any whisky alleged to' have been found by the officers on the Beck property. Neither of the officers claims to have seen the defendant exercising any ownership or possession over the whisky.

After a careful reading of the record, we hold that there is no- competent testimony to connect the defendant with the possession of the whisky.

The cause is reversed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    GEORGE ELLINGTON v. STATE.
    No. A-8225.
    Nov. 21, 1931.
    (5 Pac. [2d] 407.)
    W. B. Howell and E. Moore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of Choctaw beer, with intent to sell, barter, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of |50 and.be imprisoned in the county jail for 30 days, and appeals.

In the trial of the case the state offered in evidence the affidavit on which the search warrant was obtained and the search warrant, to which the defendant objected.

“The County Attorney: Let me offer this in evidence. Your honor, I offer in evidence the affidavit for the search warrant signed by the sheriff to search lot 9, in block 8, in the town of Cottomvood. The search warrant that was issued to search those premises. Mr. Howell: Objected to as incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Howell: Exceptions.1”

This court has repeatedly held that it was error for the state to read the affidavit for the search warrant and the search warrant to the jury as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370.

To permit the state to introduce the ex parte affidavit for the search warrant and the search warrant as primary evidence is to deprive the defendant of his constitutional right to be confronted by the witnesses against him. Where the state is permitted, over the objection of the defendant, to introduce the affidavit for the search warrant and the search warrant as primary evidence, the case will be reversed.

For the reasons stated the cause is reversed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    EDGAR COLLIER v. STATE.
    No. A-8152.
    Nov. 21, 1931.
    (5 Pac. [2d] 405.)
    Cress & Tebbe, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the Billings division of the county court of Noble county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

It appears from the record that the regular county judge had disqualified; that on January 22, 1930, the state and the defendant agreed upon Hon. H. E. St. Clair as special judge; that on the 27th day of January, 1930, an order was made transferring the trial of the ease to the Billings division of the Noble county court; that the case was not called for trial until the 9th day of October, 1930; that the verdict of the jury was returned on the 9th day of October, 1930; that a motion for a new trial was filed on the 15th day of October, 1930, and a motion in arrest of judgment was filed on the 24th day of February, 1931; that final judgment and sentence was pronounced on the 24th day of February, 1931.

Defendant contends, first, that the court erred in overruling his objection to the regular court bailiff serving a special venire for four jurors to complete the panel.

When the case was called for trial, and after the defendant had exhausted his peremptory challenges, there remained only five jurors in the box. Thereupon the court directed the regular bailiff of the court to summon four additional jurors to constitute part of the panel from which names to complete the jury could be selected.

The defendant objected to the bailiff serving the venire, for the reason that he was more than 60 years of age and was not a resident of the Billings subdivision of the county court. No objection was made that the bailiff was otherwise disqualified, and no claim made that the defendant was forced to accept a juror over his objection who was disqualified to sit in the case.

Defendant relies on Leigh v. State, 34 Okla. Cr. 338, 246 Pac. 667, and other holdings of this court, but these authorities are not in point, for the reason that in those cases the challenge was on account of the bias and prejudice of the officers, while in the case at bar it is a purely technical objection to the legal qualifications of the officer.

It was not error for the trial court to overrule defendant’s objection to the service of the special venire by the bailiff.

Defendant next contends that H. E. St. Clair was without authority to act as special judge, predicating such objection upon the fact that the record contains no oath of office taken by such special judge1.

It will be presumed that everything done in a court of record is regular until the contrary is made to appear, and the burden is on the party complaining to show otherwise. Stark v. State, 10 Okla. Cr. 177, 135 Pac. 441.

16 Cyc. 1078, states the rule:

“It will be presumed that public officers, including persons acting in an official capacity, have been duly elected and that they have qualified; that their official acts are properly performed, and in general that everything in connection with the official act was legally done, whether prior to the act, as in giving notice, serving process, or determining the existence of conditions prescribed as a prerequisite to legal action, or subsequent to such act. It is furthermore the rule of procedure that the burden of proving unlawful or irregular conduct rests upon him who asserts it, since there is no presumption of official irregularity”— and in support of such rule cites a large number of authorities from various states.

It has even been held that:

“Ordinarily, a special judge must take an oath of office, but this may be waived by the parties, and, if waived, the omission of the oath cannot afterwards be made a ground of objection.” State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 68 Am. St. Rep. 627.

There being nothing in the record to1 indicate that the special judge had not taken the oath of office, the contention is without merit.

Defendant next contends that the authority of the special judge ceased with the August term of the county court for the Billings district, and that the special judge was without authority to act at the time judgment and sentence was pronounced.

Defendant relies on Dodd v. State, 5 Okla. Cr. 513, 115 Pac. 632, 633, wherein this court said:

“The authority of a special judge, lawfully selected by the parties, to preside over any cause or proceeding in which the regularly elected judge is disqualified by reason of the provisions of our statutes, ceases with the lapsing of the term a.t which he was selected, unless the case is finally disposed of at such term, and in that case ceases with the final disposition of the cause.”

Defendant also cites Patterson v. United States, 7 Okla. Or. 272, 118 Pac. 150, wherein this court approves that doctrine.

The Attorney General has called the court’s attention to additional authorities and insists that the rule announced in Dodd v. State, supra, and in Patterson v. United States, supra, is contrary to section 2630, C. O. S. 1921, and against the great weight of authority and is not supported by the best reasoning.

Section 2630, O. O. S. 1921, provides:

“In any cause, civil or criminal, pending in any court of record in this state, if the presiding judge for any legal cause shall be incompetent or disqualified to try, hear, or render judgment in such cause, the parties or their attorneys of record, if it be a civil cause, or the prosecuting officer and the defendant or defendants or their attorneys of record, if it be a criminal cause, may agree upon some member of the bar of the district who is not disqualified, if it be in the district court, or of the county, if it be in the county or superior court, and if in any other court of record, within its jurisdiction, to act as a special judge to hear and decide and render judgment in the same manner and to the same effect as such disqualified judge could have rendered, but for his disqualification.”

In 23 Cye., at page 611, the rule is stated:

“A special judge who' has been chosen and has qualified retains exclusive jurisdiction over cases tried before him until they have been finally determined. His authority ceases ordinarily upon the entry of a final judgment.”

In 15 Ruling Case Law, at page 516, the rule is stated:

“The authority of a special judge appointed to act in a particular case, because of the disqualification of the regular judge, is not limited to the term during which he is appointed, but extends to subsequent terms until the disability of the regular judge is removed.”

In 33 C. J. page 1035, § 229, the rule is stated:

“If a special judge is selected for the purpose of hearing or presiding over a certain specified case or cases, his jurisdiction is limited to the trial and determination of that particular case or cases. He has no authority in any other case or cause, although it may be between the same parties. But the special judge, after he qualifies, possesses all the powers of the regular judge as to the case or cases for which he has been selected, until it or they have been finally determined.”

Supporting this doctrine are Matthews v. Marin County, Superior Court, 68 Cal. 638, 10 Pac. 128; Glover v. Morris, 122 Ga. 768, 50 S. E. 956; Mayer v. Haggerty, 138 Ind. 628, 38 N. E. 42; Kissel v. Lewis, 27 Ind. App. 302, 61 N. E. 209; State v. Moberly, 121 Mo. 604, 26 S. W. 364; State v. Wear, 129 Mo. 619, 31 S. W. 608; Nebraska Mfg. Co. v. Maxon, 23 Neb. 224, 36 N. W. 492; State v. Sachs, 3 Wash. 691, 29 Pac. 446; State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627; Sublett v. Gardner, 144 Ky. 190, 137 S. W. 864; Boone v. Boone, 152 La. 208, 92 So. 861; Burrage v. State, 101 Miss. 598, 58 So. 217.

The rule that a special judge appointed to act in a particular case is not limited to the term during which he is appointed, but extends to subsequent terms until the case is finally disposed of, is supported by the great weight of authority and the better reasoned cases.

The rule laid down in Dodd v. State, supra, and in Patterson v. United States, supra, that the authority of the special judge ceases at the end of the term of court at which he was selected, is expressly overruled.

Finally, defendant contends that the evidence is insufficient to support the verdict of the jury.

There is a conflict in the evidence, but this was for the jury. The record contains sufficient competent evidence to support the verdict.

For the reasons stated, the cause is affirmed.

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


text:
    WASH EDWARDS v. STATE.
    No. A-8208.
    Nov. 21, 1931.
    (5 Pac. [2d] 405.)

      E. E. Ammons, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information with having in his possession a compound mixture of mash, wort, and wash known as whisky beer, fit for distillation and for the manufacture of whisky, and was convicted of the crime of violating the prohibitory liquor laws as charged in the information filed herein, and his punishment fixed at confinement in the county jail for a term of 30 days and to pay a fine of $50 and all costs. Prom the judgment, the defendant has appealed.

The testimony in this case tends to show the officers went to the home of the defendant, and, out in a pasture about two or three hundred yards from his house, found a barrel, the contents of which the officers testify was whisky beer, capable of distillation and for the manufacture of whisky. The testimony tends to show that there were two houses as near where the officers found the beer as defendant’s home. The defendant denies any knowledge of the beer, claims he had nothing to do with it, and that it did not belong to him; that he did not know i't was in his pasture where the officers claim to have found it.

The testimony of the officers as to the barrel of beer being found in the defendant’s pasture, and the defendant’s denial that it was his, was submitted to the jury under proper instructions of the court, and the jury returned a verdict of guilty.

The only error urged by tbe defendant is that the evidence is insufficient to sustain the judgment. The.record discloses a conflict in the evidence, but, from a careful examination of the whole record, it appears that the defendant had the advantage of a fair and orderly trial. The testimony introduced was admissible, and the instructions of the court fairly covered the law of the case. The jury is the sole judge of'the weight of the testimony and the credibility of the witnesses, and had the advantage of observing the witnesses and their demeanor.

There is sufficient substantial evidence, if believed by the jury, to sustain the verdict rendered, and, where no prejudice or other irregularities appear of record, this court would not be justified in disturbing such verdict because of a conflict in the evidence.

The judgment of the trial court is affirmed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    FRANK BRIDWELL v. STATE.
    No. A-8122.
    Nov. 21, 1931.
    (5 Pac. [2d] 403.)

      Lewis Hunter and J. F. Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of assault with a dangerous weapon with intent to do bodily harm, and was sentenced to be imprisoned in the state penitentiary for eighteen months, and to pay the costs of the prosecution; from which sentence, the defendant has appealed.

The testimony on behalf of the state tends to show that the prosecuting witness, W. L. Howry, had testified in the preliminary trial, and, when the case was called for trial, Howry did not appear, and the court, over the objection of the defendant, permitted the testimony of Howry taken at the preliminary trial to' be read to' the jury. The witness Howry stated he came to Sterling the morning of the second of April, 1930; that he talked with several parties and finally 'went to the second floor of the Farmers’ Union building where there were a number of other parties; among others was the defendant; they had some whisky; Howry admitted he took a drink while up there; that he talked a while with the parties and started to come down the stairway; and that sometime after he left the room, and before he came down the stairs, he got a lick of some kind; witness stated he did not know who hit him; he had had no trouble with any one in the room upstairs; that all were friendly to him; he further stated he had known the defendant for a number of years; that the defendant had lived with a sister of his for several years; that about four years ago he and the defendant had a little controversy, but they had continued to be friends, and there was no ill feeling between them.

The other witnesses who testified in the case only tended to show that the prosecuting witness, W. L. Howry, was found down in front of the landing of the stairway; no one saw him fall, and no one knew how he came to be down there. There is no testimony tending to show whether he fell down the stairway and hit the concrete sidewalk and fell to the edge of the street, or that he received some kind of a blow that knocked him down the stairway. There is testimony tending to show that, before he went upstairs, his actions indicated he had been drinking.

Testimony was introduced showing that a boy went into the Henderson Bestaurant and informed Mr. Henderson some one had been hurt or had been found in the street; the defendant was in the restaurant at that time; defendant went around to the injured party and found it was W. L. Howry; the defendant raised up the head of Howry and held it until the doctor and another party came, and they carried Mr. Howry and placed him on a cot in the cellar of the building, where the doctor treated him. The only testimony that in any way whatever tended to show that an offense had been committed is the statement by one of the witnesses who claims the defendant told him he had hit Howry.

The defendant testified in his own behalf and denied that he had told any one he struck Howry, and testified be bad left tbe room where the parties were ten or fifteen minutes before the accident and was in the Henderson Restaurant when a young man by the name of Hayes brought the information that Howry had been injured. The defendant testified he never made the statement to any one that he struck Howry; that he had no cause to strike him; they were on friendly terms. This is in substance all the testimony relating to the charge against the defendant.

The defendant in his petition in error assigns several errors alleged tO' have been committed by the court in the trial of his case'. In his brief, the defendant especially urges that the verdict of the jury is not sustained by the evidence, and that the evidence is entirely insufficient to sustain the verdict of the jury and the judgment and sentence. In presenting his argument, the defendant insists that the facts and circumstances as shown by the record justify the conclusion that the prosecuting witness Howry was injured either by falling from the top of the stairway while in an intoxicated condition, or was injured in some way other than by being struck by the defendant. The prosecuting witness’s testimony taken in the preliminary trial and used in the trial of this case clearly shows that he did not know who' struck him, if any one, and that he was on friendly terms with the defendant, and that he did not have any words that day with the defendant.

Neither of the state witnesses testified to any trouble between the prosecuting witness and the defendant, and all of the state testimony shows that as soon as the de-defendant learned that the prosecuting witness had been injured he immediately went to him and raised his head and was trying to aid him. Most of the testimony offered in the trial of this case was testimony of witnesses that had been taken in the preliminary trial, whose attendance conld not be secured at the trial, for the reason they were absent from the state, or were not where they could be found.

It is further urged by the defendant that there is no testimony whatever to connect the defendant with the commission of a crime. The evidence introduced by the state tends to show that the defendant did not make an assault upon Howry. There is in fact no direct testimony offered by either of the state witnesses showing that a crime had been committed. The circumstances and the testimony of the witnesses tend to show that the prosecuting witness had been drinking and started down the stairway, lost his balance and fell, inflicting an injury upon his person when he struck the sidewalk.

The only assignment of error necessary to' be considered is the assignment of the defendant that the evidence is insufficient to sustain the verdict. The statement of the witness Paris that the defendant told him he struck the prosecuting witness, which statement was denied by the defendant, is in the nature of an extrajudicial confession, and this court has many times held that, in a criminal case, a conviction cannot be had on an extrajudicial confession of the defendant without evidence aliunde of the corpus delicti, but that direct and positive proof of that fact is not indispensable. Henry v. State, 14 Okla. Or. 189, 169 Pac. 658.

In Green v. State, 7 Okla. Cr. 194, 122 Pac. 1108, in the first paragraph of the syllabus, the court said:

“In every criminal prosecution, it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.”

In Blakemore v. State, 39 Okla. Cr. 355, 265 Pac. 152, this court, in the first syllabus, said:

“The corpus delicti in a criminal case cannot be established by the confession of the defendant alone. There must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had.” Boggess v. State, 46 Okla. Cr. 283, 287 Pac. 764.

The testimony of Paris on the question of the corpus delicti related solely to an extrajudicial confession alleged to have been made by the defendant to Paris. The defendant denied making any such statement. There is no circumstantial evidence which tends to connect the defendant with committing any offense against the person of the prosecuting witness Howry, nor is there any testimony which places the defendant and Howry together or near each other at the time of the alleged offense. On the contrary, the defendant testified he was not in the building; that when he left it he left Howry in the building with other parties; and that he was in the Henderson Restaurant when advised that Howry had been injured.

After a careful examination of the record, it is the opinion of the court that the proof of the corpus delicti in this case does not meet the requirement of the statute, and that there is no competent evidence sustaining the judgment, and, for this reason, the cause is reversed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    BEN ROLAND v. STATE.
    No. A-8226.
    Nov. 21, 1931.
    (5 Pac. [2d] 402.)

      Bishop & Banta, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Seminole county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of flOO and imprisonment in the county jail for 30 days.

Judgment and sentence were pronounced on the 7th day of April, 1931. The appeal was filed in this court on the 6th day of August, 1931. The trial court made several orders extending the time to make and serve case-made, but made no order extending the time in which the appeal should be filed in this court.

Where no order is made extending the time to perfect an appeal to this court, the petition in error must be filed within 60 days from the date of judgment, and, if not done, this court obtains no jurisdiction.

The appeal not having been filed until 121 days after the rendition of judgment, the attempted appeal is dismissed.


text:
    BENNIE SANGO v. STATE.
    No. A-8203.
    Nov. 21, 1931.
    (5 Pac. [2d] 400.)

      P. A. Chappelle and A. G. W. Sango1, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted on the 22d day of May, 1931, in the district court of Tulsa county of the murder of one Chester Toney, and his punishment fixed by the jury at death. The appeal was filed in this court on the 10th day of July, 1931.

The evidence of the state was that the defendant shot the deceased twice in the back as he walked away from defendant; that deceased staggered into a restaurant and defendant followed him in and shot him again; that deceased died from the effect of these wounds a short time afterward.

Deceased’s son, testifying for the state, said that deceased invited defendant to- come into the restaurant, and opened the door and started to go in; that defendant drew his gun and the witness struck him, but that defendant immediately fired the shots into his father’s hack and followed him on into the restaurant.

Defendant claimed that he fired the shots in his own self-defense; that deceased threatened him and deceased’s son made an attack on him.

Defendant contends that this evidence is insufficient to support the verdict of the jury.

From a careful reading of the record we are unable to see how an honest jury could, arrive at any other verdict except murder.

Defendant next contends that he did not have a fair trial, because he was compelled to defend the case twice in one week.

It appears from the record that the information was filed on the 25th day of March, 1931, and defendant’s first trial began on the 18th day of May, 1931. When the case was called for trial, the state and the defendant announced ready. For some reason not appearing in the record the jury disagreed. The trial court immediately set the case for retrial on May 21, 1931. No objection was made by defendant and no> motion for continuance was ever subsequently filed by his attorneys. When the case was called for trial on May 21st, defendant and his attorneys being present in open court, both sides announced ready for trial and agreed to a jury of twelve men. This jury found the defendant guilty, and he now complains that he was not given sufficient time to prepare for his second trial.

Section 2733, C. O. S. 1921, provides:

“In all cases where a jury are discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment or information, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct.”

It was not error for the trial court to bring the defendant to trial again at the same term of court.

Defendant next complains that the court erred in admitting incompetent evidence, but a careful examination of the record reveals that there is no merit in this contention.

Defendant next contends that the court erred in allowing the introduction in evidence of defendant’s written and signed statement which he made to the police immediately following the shooting.

In Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, in paragraph 2 of the syllabus, this court defined “confession” :

“A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it.”

In paragraph 5 of the syllabus of the same case, this court said:

“Where the competency of a confession is challenged on the ground, that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

Defendant next contends that the court erred in allowing testimony concerning defendant’s shooting of Lillian Toney.

It appears from the confession of the defendant that he admitted the whole trouble was over this woman. The evidence discloses that defendant followed Lillian Toney across the street, and that she went into a cafe; that as deceased started to go into the cafe, defendant shot him twice in the back, and shot him again as he was falling to the floor, and then with the same pistol and with the two remaining bullets in this pistol he turned upon Lillian Toney and killed her at the same time — clearly a part of the res gestae — and tends to throw light upon the killing of the husband.

In Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088, this court held that any evidence tending to show defendant’s guilt is admissible although it also tends to prove a separate and distinct crime.

To the same effect are: Cross v. State, 11 Okla. Cr. 117, 113 Pac. 202; McLaughlin v. State, 18 Okla. Cr. 627, 197 Pac. 717.

Defendant next contends that the court erred in permitting the assistant county attorney to make certain improper remarks to the jury over the objection of defendant.

The remarks complained of are:

“Mr. Hanson: * * * The attorneys for tbe defendant in this case were present at the preliminary hearing in the court of common pleas, were likewise present at the trial of this case had in this court room two days ago, but they did not have certain witnesses testify for the defendant, and they would have had more witnesses perjure themselves but their money must have given out. Mr. Chap-pelle: Comes now the defendant and objects to the remarks of the assistant county attorney for the reason same are not proper; that it is improper argument in the trial of this case and prejudicial to the rights of the defendant. The Court: Overruled. Mr. Chappelle: To which the defendant excepts.”

When the case was orally argued, there was some dispute as to whether this was a correct statement of what Mr. Hanson, the assistant county attorney, said. An examination of the record discloses that Mr. Hanson and Mr. Chappelle stipulated that the language above set out was used by the assistant county attorney in his argument to the jury, and this stipulation is incorporated into and made a part of the case-made.

It is not every misconduct in examination of witnesses or argument that requires a reversal of the case. Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518; Bainum v. State, 45 Okla. Cr. 330, 282 Pac. 903.

In the case at bar, the record leaves no doubt of the guilt of the defendant. No honest jury in the light of this evidence could have returned any verdict except that of murder. This court believes that this misconduct of the county attorney may have influenced the jury in fixing the penalty at death, and for that reason we are modifying the judgment and reducing the punishment from death to life imprisonment in the state penitentiary.

For the reason stated, the judgment is modified from death to life imprisonment in the state penitentiary, and, as modified, the cause is affirmed.

DAYENPORT, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    HENRY THOMPSON v. STATE.
    No. A-7775.
    Nov. 21, 1931.
    (5 Pac. [2d] 398.)
    J. M. Roberts, O. H. Whitt, and C. B. Mitchell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Latimer county of the theft of live stock, and his punishment fixed at imprisonment in the penitentiary for a term of three years.

Defendant was jointly charged with Bob Simpson. A severance was had, and Simpson was convicted and appealed to this court, and judgment was affirmed. Simpson v. State, 52 Okla. Cr. 311, 4 Pac. (2d) 126.

The first contention is that the court erred in overruling the demurrer to the information on the ground that defendant had not had nor waived a preliminary examination for the charge upon which he was tried. Defendant in the preliminary complaint before the magistrate was charged with the larceny of live stock. A preliminary examination was had.

The record of the proceedings before the magistrate is incorporated in the case-made, hut not the order of the magistrate to hold defendant for the district court. This record of proceedings states in substance that defendants are charged with the larceny of domestic animals, and that the magistrate, after hearing all the evidence, and on consideration, finds from the evidence that there is sufficient cause to believe defendant guilty as charged in the information, and orders them held for the crime of grand larceny. The record of proceedings clearly shows that the magistrate used the words “grand larceny” as equivalent to a “larceny of domestic animals.” It was not necessary that the magistrate incorporate his order holding defendant in the record of the proceedings provided for by section 2509, Comp. Stat. 1921. The order to hold defendant should be indorsed on the complaint. Section 2497, Comp. Stat. 1921. There is no showing that the order was not properly indorsed on the complaint. The presumption is that it was correctly indorsed thereon. Raleigh v. State, 52 Okla. Cr. 388, 4 Pac. (2d) 1078.

It is argued at some length that the court erred in overruling defendant’s motion and amended motion for a continuance. The motion is based on the absence of three of the material witnesses. One of the witnesses appeared and testified. The application does not disclose with certainty the place of residence of the other two witnesses, or that there is any likelihood that defendant Avould be able to procure their attendance at a subsequent term. The supplemental application sets out that J. M. Roberts, attorney for defendant, is ill with “flu,” and unable to assist in the trial. This is supported by an affidavit of a physician who states that said attorney “is under his care and treatment and suffering from influenza and that he is not now and will not be for several days able to participate in the trial of any case in court, that to do so would injure his physical system.” This physician’s affidavit was made on September 24th. The trial was on September 28th. Defendant at that time made a further affidavit that his attorney was unable to be present. On the 26th, the court appointed G. B. Mitchell, a member of the bar of Latimer county, to conduct the defense; he did so very ably. Under the holding of this court in Anderson v. State, 21 Okla. Or. 177, 204 Pac. 132, and authorities therein cited, there was no abuse of discretion in denying the application.

Upon a consideration of the entire record, we are convinced defendant had a fair trial, and that the record is free from material error.

The case is affirmed.

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


text:
    JOHN ROBERTSON v. STATE.
    No. A-8105.
    Oct. 24, 1931.
    Rehearing Denied Nov. 21, 1931.
    (5 Pac. [2d] 185.)
    White & White, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

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

The evidence of the state was that complaint was made to the officers of Le Flore county that Frank Harper, the deceased, was drunk and creating a disturbance, and that they went out into the neighborhood where he lived looking for him; that they found him and a woman, Rachel Bledsoe, sitting in a car on the highway; that they had been drinking, and that there was a jar with some whisky in it in the car; that, when the officers were unable to start deceased’s car, they had him drive it to the place where he stayed; that deceased was permitted to go into the house and put on a clean shirt; that thereafter defendant and Henry Falconer, the other officer, started to take deceased and the woman to jail at Spiro; that defendant was driving the car, with the Bledsoe woman sitting- next to him and the deceased on the other end of the seat; that Falconer stood up behind; that deceased became abusive, and, after cursing the defendant for some time, defendant stopped the car, stood up and struck the deceased on the side of the head with a billy or black-jack; that defendant had borrowed the black-jack from Charley Tobler, an officer in Spiro; that this black-jack was carried on the seat in the car while defendant and the other officer were taking the deceased to jail at Spiro; that blood came out of the nose and mouth of deceased, and that he was rendered practically helpless; that deceased was taken to the jail in .Spiro- and left there by the defendant and Falconer, and that he died the next day; that death was caused by an eggshell fracture on the left side of the head, made by some blunt instrument; that the next morning defendant said deceased had undertaken to curse him, and he had busted him out.

Defendant, testifying for himself, said that deceased had cursed and abused him for some time and tried to grab the steering wheel and tried to strike him, and that he struck deceased with his fist; he admitted that he had a billy or black-jack with him, but denied that he had struck deceased with it. Defendant also sought to show that the Avound that caused deceased’s death might have been produced by falling from his bunk in the jail house and striking his head on a post or concrete floor.

There is a sharp conflict in the evidence; the Bledsoe woman testifying positively that defendant struck deceased on the side of the head with the black-jack or billy. She is corroborated by the witness Brown, who testified that he met the car driven by defendant and occupied by Falconer, the Bledsoe woman, and deceased; that, as he approached, the car driven by defendant was stopped, and, after some controversy, a man stood up, and he heard a lick as though some one was struck, and heard a woman say, “My God, you have killed him,” or something to that effect.

Defendant testified positively that he did not strike the deceased with anything except his fist. Falconer is not so positive, but leaves the impression that he is trying to evade the question of what defendant did strike deceased with. This conflict was for the jury.

This court has repeatedly held that the jury are the exclusive judges of the weight of the evidence, and, if there is a clear conflict in the evidence, and it is such that different inferences can properly be drawn from it, this determination will not be interfered with, unless it is clearly against the weight of the evidence, or appears to have been influenced by passion or prejudice. Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

Defendant complains of instructions numbered 10, 11, 12, 13, 14, 15, and 18, which, because of their length, are not set out in this opinion.

The defendant’s particular contention is that the court erred in instructing the jury upon the law of self-defense, since the defendant relied upon the fact that he did not strike the deceased with anything except his fist, and offered evidence to show that the death of deceased might have been caused by a fall from his cot in the jail.

While defendant contends here that his defense was not self-defense, that contention is inconsistent with the position he took in the trial court, because there defendant himself testified that deceased tried to grab the steering wheel and tried to' strike him, and that he struck deceased with his fist because of the abuse and assault deceased was making on him. In the trial, defendant was permitted to introduce evidence of the bad reputation of deceased as being a quarrelsome violator of the law. This evidence was only admissible on the theory that the deceased was the probable aggressor in any affray that he may have had with defendant.

The instructions complained of are those usually given in a case where self-defense is interposed. Defendant’s own evidence fairly raises the issue of self-defense, and it was not error for the trial court to give the instructions complained of.

It was up to the jury to determine whether the blow was inflicted in the manner that the state’s evidence showed, or whether the defendant hit him merely with his fist. The trial court instructed the jury that the burden was upon the state to prove the defendant guilty beyond a reasonable doubt, and that the presumption of innocence attended him throughout the trial until this presumption was overcome by evidence that showed his guilt beyond a reasonable doubt. An examination of the record discloses that the defendant had a fair trial and that the evidence supports the verdict of the jury.

For the reasons stated, the cause is affirmed.

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

On Petition for Rehearing.

Since the filing of the original opinion, counsel for defendant has filed a petition for rehearing, in which it is earnestly contended that this court overlooked the complaint of the defendant that the court erred in its instructions, in that the instructions assumed that the blow struck by defendant was the one that caused the death of deceased. It is also urged that the defendant does not rely entirely on the plea of self-defense, but, in addition, denies that he caused the death of deceased, and cites Stanfield v. State, 30 Okla. Cr. 82, 235 Pac. 256, and Walls v. State, 32 Okla. Cr. 108, 240 Pac. 146, in support of the contention that the instructions are erroneous.

We have carefully examined the record and find no testimony that deceased received any injury other than the blow from defendant. The argument is advanced that possibly deceased may have fallen from a cot in the jail and struck his head upon the concrete floor or come in contact with a post, sustaining injuries from which he died. This is a mere theory, not supported by the testimony nor the physical facts. The court is not to indulge in suppositions, but is to be governed by the evidence in the record, and particularly are the physical facts to be given weight. Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923.

We have carefully re-examined the instructions of the court, and find that the contention of defendant that the court took from the jury the question of whether the blow struck by defendant was fatal is without any merit.

For the reasons stated, the petition for rehearing is denied and mandate ordered to issue immediately.


text:
    JOHN SHIPMAN v. STATE.
    No. A-8219.
    Nov. 21, 1931.
    (5 Pac. [2d] 397.)
    Claude A. Niles, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was charged by information with having unlawful possession pf one gallon and one pint of whisky with intent to barter, sell, give away, transport, carry, convey, and otherwise sell and dispose of said liquor; was convicted by a jury of a violation of the prohibitory liquor laws as charged in the information, and sentenced to serve a term of imprisonment in the county jail for 30 days and pay a fine of $50 and costs, and has appealed.

When the case was called for trial and the jury was impaneled, the defendant objected to any testimony on the part of the state, for the reason that the testimony about to be offered was obtained by means of an illegal search warrant, and moved to quash the search warrant and suppress the testimony obtained by reason of the search warrant. In the absence of the jury testimony was taken on the defendant’s motion to quash the search warrant, and in support of the motion to suppress on the hearing it was disclosed that one of the officers arrested the defendant and took him to1 jail and secured a search warrant and searched the defendant’s house and smokehouse and found about a pint of whisky.

It is further disclosed that, when the officer made his return on the search warrant under which he secured the information, the warrant was held to be invalid, as it did not correctly describe the property. The officer, acting upon the information he had secured by reason of the invalid search warrant, secured another search warrant describing the premises to be searched as lots 4 and 5, in block 153, of the city of Checotah, Okla. These lots were searched, and nothing was found, but they searched lot 3, upon which was a bam, which lot was alleged to be owned by the defendant, and the testimony tends to show they found a gallon of whisky in the barn. Lot 3 is not described in the last search warrant, and one of the witness admit they got the information for the last search warrant by reason of the first search, which was decided to be illegal.

The state’s witnesses had no knowledge of any violation by the defehdant of the prohibition laws until they went upon the premises of the defendant to search under what they admit to have been a void search warrant.

A search warrant must describe the place to be searched with such reasonable certainty that the officers to whom it is directed can ascertain from it the place to be searched and no discretion as to the place is left to such officer. Smith v. State, 40 Okla. Cr. 366, 269 Pac. 376; Shanafelt v. State, 36 Okla. Cr. 345, 261 Pac. 380.

In this case it is shown that the officers operating up-der a void search warrant made an unlawful search, and by reason of that unlawful search they went upon the premises of the defendant and searched his home. When it was discovered that the search warrant under which the officers acted was invalid, then, by reason of the information gained by reason of the unlawful entry upon the defendant’s premises, they made affidavit and secured another search warrant to search lots 4 and 5, in block 153, of the town of Checotah. Acting upon that search warrant to search lots 4 and 5, they searched lots 4 and 5, and then searched lot 3, which was not included in the search warrant. A search warrant authorizing officers to search lots 4 and 5, in block 153, does not authorize them to search lot 3.

It is clear from the record that the search Avarrant in this case does not authorize the officers to search lot 3. The search is in violation of the provisions of section 7012, Comp. St. 1921. The motion of the defendant to suppress the evidence secured by reason of the search warrant was well taken and should have been sustained.

For the error of the court in overruling the defendant’s motion to suppress, the cause is reversed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    W. P. COTTRELL v. STATE.
    No. A-7999.
    Aug. 28, 1931.
    Rehearing Denied Nov. 21, 1931.
    (5 Pac. [2d] 178.)

      W. D. French, E. A. Pruitt, V. 0. Phillips, W. E. CJtterback, Allen, Underwood & Canterbury, and Paul Pinson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Johnston county of the crime of embezzlement, and his punishment fixed by the jury at a fine of $24,000 and imprisonment in the state penitentiary for a period of three years.

The evidence of the state was that on and for a long time prior to the 7th day of December, 1926, Anna L. Campbell, a daughter of J. C. Dodd, was the treasurer of the board of education of school district No. 29 in Johnston county; that J. C. Dodd, Mrs. J. W. Hopkins, and Charles L. Hulsey constituted the board of education of said district; that J. 0. Dodd was president of the First National Bank of Milburn, in Johnston county; that Anna L. Campbell was cashier, and W. P. Cottrell, J. T. Gardner, and W. E. Utterback were the board of directors; that Anna L. Campbell, while treasurer of the board of education of said school district and cashier of the First National Bank of Milburn, received $12,000 from the county treasurer belonging to the sinking fund of said school district, and deposited the same in the First National Bank of Milburn; that on May 5, 1926, she was issued a certificate of deposit for $12,000 which was charged against her credit as school treasurer in her account in said bank, thus reducing the demand deposit account of said district $12,000; that on December 7, 1926, a resolution was adopted by the board of education of said school district authorizing the treasurer thereof to loan to the defendant, W. P. Cottrell, a sum not in excess of $12,000 of its sinking fund due July 1,1928, at 4 per cent, interest from date, upon a promissory note to be executed by the defendant and secured by the personal indorsement of J. T. Gardner and sixty shares of the capital stock of the First National Bank of Milburn; that defendant executed the note for $12,000, the same was indorsed by J. T. Gardner, and there was attached to the note sixty shares of the capital stock of the First National Bank of Mil-burn; that thereupon Anna L. Campbell, as treasurer of the board of education, assigned and delivered the certificate of deposit to defendant; that defendant deposited this certificate of deposit for $12,000 in the First National Bank of Milburn, and was given credit for that amount in the bank in an account entered “W. P. Cottrell, Special.”

That the board of directors of the First National Bank of Milburn had voluntarily assessed themselves 50 per cent, of the capital stock of the bank in order to make good its capital stock and surplus and prevent the bank being closed by the comptroller of the currency. That by reason of said assessment W. E. Utterback paid the bank $950 in cash in full of his assessment, and that he is not further in any wise connected with any of the things complained of by the state in the information.

That W. E. Utterback owned 19 shares of the capital stock of the bank, defendant 27 shares, J. T. Gardner 10 shares, Anna L. Campbell 5 shares, J. C. Dodd 161 shares, Ella and Bessie White 6 shares, Mrs. Bessie White 10 shares, Demitt D. Hayden 10 shares, and J. Henry Johnston 5 shares; that under the special assessment voted, the stockholders above named would have to pay in cash to the bank $12,500; that on the 31st day of December, 1926, the bank took credit for $12,500 due from its stockholders and entered it as an asset of the bank; that on the 4th day of January, 1927, $10,800 was charged into the special account of defendant as having; been paid on the assessment of defendant, of J. C. Dodd and of J. T. Gardner; that $250 in cash was paid in by J. Henry Johnston, and that this payment so made purported to pay in full the special assessment of 50 per cent, of the par value of the capital stock; that defendant’s share of the special assessment was $1,350, which he purported to pay out of the $12,000 borrowed from the school district; that the assessment of J. C. Dodd was $8,050; which purported to be paid out of the $12,000 borrowed from the school district; that, Ella and Bessie White, Mrs. Bessie White, and Demitt T. Hayden being unable to pay the 50 per cent, assessed to their 26 shares, defendant became the owner of those shares and purported to pay the assessment out of the $12,000 borrowed from the school district; that, when demand was made on defendant to pay the note, he refused to do so and later was adjudged a bankrupt; that most of the property defendant was supposed to own was found to be in his wife’s name.

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

Defendant contends first that no crime was committed because the certificate of deposit had no value; that the transaction was one merely of paper and no addition was made to the assets of the bauk by the transfer of credit. That because of the fact that it was necessary for the stockholders to levy the 50 per cent, assessment on the capital stock, and because of the fact that there was only a little more than $10,000 in the bank and with its de-' positories, and because of the further fact that the bank had deposits at that time of $125,622.59, it was insolvent; that therefore the certificate of deposit had no value.

The record discloses that on December 7, 1926', the date the certificate of deposit in question was turned over to Cottrell and deposited in the bank, the individual deposits subject to check totaled $113,015.29, certificates of deposit $12,525, and cashier’s checks $82.30, making a total of $125,622.59. That at the time the doors of the bank were closed, the personal deposits amounted to $12,362.34 and the public deposits amounted to $55,000. That after this certificate of deposit transaction occurred the liabilities of the bank were reduced more than $55,000 by payment to its depositors out of its assets. That the receiver had paid a dividend of 17 per cent, to depositors in the failed bank.

Section 2132, C. O. S. 1921, provides:

“Any person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled. And where the property embezzled is an evidence of debt or right of action, the sum due upon it, or secured to be paid by it, shall be taken as its value.”

In State v. McCray, 15 Okla. Cr. 374, 177 Pac. 127, this court said:

“Section 2660, Rev. Laws 1910, construed, and held not to define any material ingredients of the crime of larceny of a written instrument, but merely to establish a rule of evidence whereby the value of the written instrument is to be determined in a prosecution for the larceny thereof.”

In Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L. R. A. (N. S.) 444, 131 Am. St. Rep. 1022, that court said:

“If a person deposits in a bank for his credit a check, and it is presently treated between such person and such bank as money, the former obtaining credit upon which he may, at his pleasure, draw for money, section 4541, St. 1898, is satisfied, as regards a deposit of money.”

In the body of the opinion the court said:

“True, the check, as it went over the counter, was not money, but it was treated as such between the bank and its customer. It was taken as the equivalent of money at the face value. The money equivalent was placed to the credit of the depositor the same, in all respects, as if legal tender money had been passed over the counter. The relation of debtor and creditor, as between the bank and the depositor, with the characterization of liability on the one side and expectancy on the other as to payment on demand at any time within the banking hours, was created. In short, the transaction in practical effect, was the same as if the bank had passed to its customer $1,000 for the check and he had immediately passed the same back for deposit and received credit therefor.”

The board of education recognized the certificate of deposit as having a value of $12,000 as shown by the resolution adopted by the board on December 7, 1926, when they authorized $12,000 of the sinking funds to be loaned to defendant; the defendant recognized the value of this certificate to be $12,000 by giving his note to the school treasurer in that amount, and the First National Bank accepted the certificate of deposit as being of the value of $12,000 by crediting defendant’s account with $12,000. The defendant and his confederates then canceled their obligation to the bank in the aggregate sum of $12,000, thus accomplishing everything with the $12,000 certificate of deposit that they could have accomplished with $12',000 in cash.

The contention of defendant that the certificate of deposit had no value is without any merit.

Defendant next contends that, because the school treasurer had deposited the $12,000 in the bank and taken a certificate of deposit for the same, that this constituted a loan, and that the money had already been embezzled.

The state is not reduced to the proposition of whether this transaction constituted a loan in good faith, and it makes no difference in this case whether it was a “loan” or an “exchange.” There was a misappropriation — whatever name it may be called by — which was not authorized by law. The school district had $12,000 in its sinking fund; it was used by this defendant and his confederates to cancel their personal obligations in that amount. The fact that others may have theretofore committed illegal acts did not authorize this defendant to come in with them and commit other illegal acts by whieli this sinking fund was entirely lost.

Defendant next contends that there is a fatal variance between the allegation of the information and the proof, in that the allegation was that the defendant embezzled $12,000 in good and lawful money, while the proof showed that it was a certificate of deposit.

In State v. Krug, 12 Wash. 288, 41 Pac. 126, 132, in the body of the opinion, that court said:

“In charge No. 6 the court instructed the jury that if they believed from the evidence that there was money deposited to the credit of the city in the Washington National Bank, and if the defendant drew an instrument, signing the same as city treasurer, directing Henry Fuhr-man to be paid $10,000, and that the Washington National Bank obeyed the direction, and charged on its books the money to the city, and lessened its credit $10,000, such was a payment of money, and that the jury should construe the check or instrument merely as the instrumentality by which the city of Seattle’s money was transferred from the possession of the defendant to Henry Fuhrman; and upon these facts, if the transfer was a profit, they must find the defendant guilty as charged. We think this instruction was exactly right.* * * Under these facts the appellant claims there was only an exchange of credits, and no money was paid. The instruction of the court is based upon the theory that, in contemplation of law, at least, this was money. It would be a travesty upon the administration of the law if treasurers who are the custodians of the funds of the people should be allowed to escape the penalty of embezzlement by any such subterfuge as this theory would protect. The treasurer, by law, is made responsible for all moneys which come into his possession. He is the custodian of those moneys. He can keep them in a safe under his own personal inspection and jurisdiction, or he can deposit them in the banks; but, whether kept in a personal safe or deposited in a bank, they are still, to all intents and purposes, the funds of the city. The practical result of the transaction in this case was that when this check was given to Fuhrman, and was paid to Fuhrman by the New York exchange, and that amount charged to the account of the city, the city of Seattle had its account decreased to the amount of the check, and it was just as much a disposition of that $10,000 by the treasurer as though he had gone to the bank and got the money himself, and paid it to Fuhrman, or had loaned him that amount of money out of the specie which he received, before it had been taken to the hank at all.” To the same effect are: Cunningham v. State, 115 Ark. 392, 171 S. W. 885; State v. Shove, 96 Wis. 1, 70 N. W. 312, 37 L. R. A. 142, 65 Am. St. Rep. 17; State v. Salmon, 216 Mo. 466, 115 S. W. 1106.

In Fulkerson v. State, 17 Okla. Cr. 103, 11? Pac. 1092, this court said:

“Where the defendant, as treasurer of a school district, is charged with the embezzlement of a certain sum of money belonging to the said district and the proof adduced upon the trial showed that the defendant received, as treasurer of said school district, a certain warrant issued to said school district by the county treasurer and deposited the same to his personal credit in a bank and afterwards checked against said fund for his personal use,, held there is no fatal variance between the allegations of the information and the proof.”

In the body of the opinion, this court said:

“In view of the fact that the charge here is the embezzlement of public funds, great latitude must be permitted in the description of the money or funds alleged to be embezzled, because the people exercise no close supervision over the acts of a public official and cannot, like private individuals, direct the custody of its funds at any particular moment.”

In French v. State, 37 Okla. Or. 350, 259 Pac. 162, this court said:

“An information charging the offense of receiving a deposit of cash and checks in an insolvent bank, under the provisions of section 4128, Oomp. St. 1921, is sustained by proof that cotton tickets showing the weight and price paid for certain cotton, with the name of the purchaser of the cotton indorsed thereon, were received by the bank as a cash item, and credit given to the holders of such tickets, and the account of the purchaser debited with the amount thereof.”

Under the facts in the case and the authorities above cited, the contention of the defendant that there is a fatal variance between the information and the proof is without any merit.

Defendant next complains of the instructions of the court given on its own motion.

The instructions, while brief, are sufficient to cover the law of the case.

Defendant next complains because the court refused to give certain requested instructions.

The particular complaint- is that the court erred in refusing to give requested instruction No. 1 on circumstantial evidence. This court has repeatedly held that it is only in those cases where the evidence is wholly circumstantial that the court must give the instruction. The other requested instructions were either given in substance by the court, or failed to correctly state the law.

The court has carefully examined the record and finds no substantial error. The evidence supports the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    J. C. DODD v. STATE.
    No. A-7998.
    Aug. 28, 1931.
    Rehearing Denied Nov. 21, 1931.
    (5 Pac. [2nd] 181.)
    W. L. Ratliff and W. E. Utterbaek, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called •defendant, was convicted in the district court of Johnston county of embezzlement, and his punishment fixed by the jury at a fine of $24,000 and imprisonment in the state penitentiary for a period of three years.

Defendant was jointly charged with Anna L. Campbell, Charles L. Hulsey, Mrs. J. W. Hopkins, J. T. Gardner, and W. P. Cottrell, with the embezzlement of $12,000 of the sinking funds of school district No. 29, in Johnston county, and on the 8th day of November, 1929, the state proceeded with the trial of the defendant. Thereafter, and on the 25th day of November, 1929, the state proceeded with the trial of the case against W. P. Cottrell, which resulted in a verdict of guilty.

The evidence in this case is practically the same as in Cottrell v. State, 52 Okla. Or. 375, 5 Pac. (2d) 178. For a full statement of the facts, see that case.

The defendant, testifying' for himself, made admissions which makes the case stronger against him, if possible, than against Cottrell. The defendant’s testimony only attempted to show that he did not commit the acts Avith a felonious intent, because he had consulted a lawyer prior to the transaction and was advised that it was legal.

Defendant contends first that the court erred in overruling his motion for a neAV trial for the reason that the evidence was insufficient to support the verdict of the jury.

There is no merit in this contention.

Defendant next contends that the court erred in giving to the jury instructions Nos. 3, 4, 5, and 6.

An examination of the instructions complained of discloses that, while they are informal, somewhat complicated, and not artistically drawn, yet, in substance, they correctly state the law of the case and are as favorable to the defendant as the facts would warrant.

Finally, defendant contends that the court erred in refusing- to give instructions Nos. 1, 2, and 3 requested by him.

Requested instruction No. 1 told the jury that they must find the defendant not guilty because there was a fatal variance between the allegation in the information and the proof.

Requested instruction No. 2 told the jury that there was evidence that the defendant had consulted counsel, and that they were to consider such evidence for the purpose of showing intent, and that before they could convict they must find that he entertained a criminal intent in the matter.

Requested instruction No. 3 was of like import.

Defendant’s contention under requested instruction No. 1 is disposed of in Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092.

Defendant’s contention under requested instructions Nos. 2 and 3 is disposed of in Hays v. State, 22 Okla. Or. 99, 210 Pac. 728; State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093; State v. Harris, 47 Okla. Cr. 344, 288 Pac. 385.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without substantial merit, the cause is affirmed.

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


text:
    J. B. RALEIGH v. STATE.
    No. A-7777.
    Aug. 15, 1931.
    Rehearing Denied Nov. 21, 1931.
    (4 Pac. [2d] 1078.)
    Claud Briggs, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Latimer county of theft of live stock and was sentenced to serve a term of 4 years in the penitentiary.

The principal contention made is that the district court was without jurisdiction for the reason that no transcript of the magistrate showing a finding of probable canse at the preliminary was ever filed in the district court. When defendant was arraigned in the district court, he filed a motion to quash the information, alleging that the transcript was wholly insufficient to give the district court jurisdiction. This motion was overruled and exceptions saved. The transcript shows the case came on for hearing before a magistrate, both parties announced ready; the complaint read; the state used three witnesses; the defendant waived; the court held defendant for the district court. The transcript does not disclose what offense was charged in the complaint, nor does it show for what offense defendant was held.

Section 2497, Comp. ¡Stat. 1921, is:

“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect: It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A B guilty thereof, I order that he be held to answer the same.”

Section 2509, Comp. St. 1921, is:

“When a magistrate has discharged a defendant, or has held him to answer, he must return immediately to the clerk of the district court of the county, the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses examined before him, the statement of the defendant, if he have made one, and all undertakings of bail or for the appearance of witnesses, taken by him, together with a certified record of the proceedings as they appear on his docket.”

The motion to quash does not allege that the proper order, as required by section 2497, Comp. St. 1921, was not indorsed on the complaint, and does not allege the magistrate failed to transmit the complaint so indorsed to the district court. The statute above quoted does not require that the record of the proceedings shall contain an order holding accused for the district court, but that the order shall be indorsed on the complaint and the complaint transmitted.

The record discloses that a complaint was filed; that a preliminary was held; that the complaint was read to accused at the beginning of the preliminary; that accused was held for the action of the district court. If there is any irregularity in this proceeding or in the order of the magistrate, the burden is on defendant to show it. The presumption is that the trial court correctly overruled the motion to quash. Walker v. State, 35 Okla. Cr. 314, 250 Pac. 539.

Since defendant has not incorporated the complaint and the order of the magistrate thereon in the record and has failed to show affirmatively any error or irregularity in the proceedings, he has failed to sustain the burden of showing, error. No other matter requiring discussion is presented in the briefs.

The case is affirmed.

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


text:
    WADE NOBLIN v. STATE.
    No. A-8154.
    Nov. 6, 1931.
    Rehearing Denied Nov. 28, 1931.
    (5 Pac. [2d] 187.)

      S. H. Davis, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, Avas convicted in the county court of Okfuskee county of the unlawful transportation of intoxicating liquor, and his punishment fixed by the jury at a fine of $200, and imprisonment in the county jail for 120 days.

The evidence of the state was that the defendant was driving a Buick roadster in Okfuskee county, near the town of Okemah, and that Ira Moose was riding in the car with him; that it had been raining and the road was slippery; that defendant attempted to pass a car going in the same direction that he was; that defendant’s car came in contact with the other car and was turned upside down in a ditch at the side of the road; that parties came and lifted up the car and defendant crawled out from under the wheel; that while Ira Moose was talking with the people gathered around, defendant broke a lot of bottles containing whisky; that defendant and Moose left the car and went to the Hinderliter Tool Company and got Dixie Helm to take the car and drive toAvards Henryetta; that the sheriff learned of the wreck and pursued this car, but that defendant and Moose were down out of sight in the car and the sheriff passed them; later, learning who they Avere riding with, he returned and pursued them, and on coming in sight of the car defendant and Moose abandoned the car and ran through the weeds and timber and were lost; that later they were arrested concealed in some weeds near a house in Henryetta; that defendant admitted the car Avas his; that the sheriff found a half-gallon fruit jar of whisky in the top of the car, and that there was whisky poured all around the car and in the top; the sheriff identified the half-gallon jar, and it was offered in evidence.

Ira Moose was jointly charged with the defendant and pleaded guilty to the charge; testified that he had bought this car a few days before from the defendant, and that defendant knew nothing of the liquor being in the car.

Defendant, testifying for himself, said that he did not own the car, and that he did not know anything about the liquor; that he did not know whether he broke any of the liquor in the car and did not know why he fled from the officers. It was admitted that the title to the car was still in the name of the defendant, although he claimed to have sold it to Moose.

Defendant contends that this evidence is insufficient to support the verdict of the jury.

All of the facts and circumstances in the case establish the guilt of defendant beyond a reasonable doubt.

For the reasons stated, the cause is affirmed.

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


author: PEE CTJBIAM.

text:
    Ex parte ED COLBERT.
    No. A-8305.
    Nov. 28, 1931.
    (5 Pac. [2d] 765.)
    J. W. Osmond and Bryan Phillips, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   PEE CTJBIAM.

This is an original proceeding in habeas corpus. Petitioner alleges: He was convicted in the county court of Caddo county of a violation of the prohibitory liquor law, and was sentenced to serve a term of 40 days in the county jail, and to pay a fine of $100 and costs; that he executed a stay bond for the fine and costs, and was released from jail; that thereafter, the fine and costs not having been paid under the terms of the stay bond, he is committed to jail for failure to pay the said fine and costs; that said restraint is illegal for the reason that the county court of Caddo county has forfeited said stay bond, and ordered suit to recover the penalty named therein.

By the terms of section 2998, Comp. St. 1921, if a defendant, on conviction of a misdemeanor, shall, after executing a bond to stay the fine and costs, fail to pay, he shall be committed until he shall have served out the amount thereof. Ex parte Bailey, 50 Okla. Cr. 53, 296 Pac. 998. The conditions here enumerated bring petitioner within the terms of this statute. The fact that the state may be endeavoring by civil suit to recover the penalty named in the bond is a matter with which we are not concerned.

The writ is denied.


text:
    HERSCHELL WRIGHT v. STATE.
    No. A-8159.
    Nov. 28, 1931.
    (5 Pac. [2d] 766.)

      Miles & Miles, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was by information jointly charged with Roy McKillips and William H. Stafford with transporting intoxicating liquor, was tried separately, convicted, and sentenced to' pay a fine of $50, and to be imprisoned in the county jail for 30 days. From the judgment, the defendant appeals.

Before the trial began, the defendant filed the following motion, omitting the caption and signatures:

“Comes now the defendant Herschell T. Wright, above named, and moves this court to' suppress the evidence in said cause in support of the charge filed against the defendant, and for grounds therefor alleges and states that said evidence was procured by an unlawful search and seizure, and in violation of the Constitution of the state of Oklahoma, and the statutes of the state of Oklahoma”— which motion was overruled, and defendant duly excepted.

The undisputed facts are that Fred Householder and J. M. Stevens stopped the car in which the defendant, William H. .Stafford, and Roy McKillips were riding, and searched the car, and claim to have found whisky in the back seat of the car where this defendant, together with William Stafford, was sitting. The officers admit they had no search warrant tO' search the car of the defendant, or for the arrest of the defendant or either of the other parties that were in the car with the defendant, and they further admit they did not see the whisky in the car when they stopped the car to search it.

Over the objections of the defendant, the whisky-clamed to have been found on the seat of the car where the defendant was sitting- was offered in evidence. We hold that the evidence challenged in this case was secured by the officers by an unlawful search and seizure, contrary to section 30, art. 2, of the Bill of Bights, and was improperly received in evidence against the defendant. Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631; Ingraham v. State, 48 Okla. Cr. 178, 290 Pac. 344; Bowen v. State, 50 Okla. Cr. 36, 295 Pac. 623.

In this case, the defendant timely ohjécted to- the testimony that was to be introduced against him by a motion to suppress the same, which motion was by the court overruled, and exceptions saved by the defendant. The motion of the defendant to suppress was well taken, and the court erred in not permitting the defendant to produce testimony in support of his motion to suppress, and in overruling the same.

The defendant’s conviction having no sufficient foundation to support it without the use of the evidence that had been unlawfully obtained must be reversed. The judgment of the lower court is reversed, and the cause remanded.

EDWABDS, J., concurs. CHAPPELL, J., absent, not participating.


text:
    C. C. BULLARD v. STATE.
    No. A-8130.
    Nov. 28, 1931.
    (5 Pac. [2d] 766.)

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

The plaintiff in error, hereinafter referred to as the defendant, was convicted of driving a motor vehicle while under the influence of intoxicating liquor, and was sentenced to serve a term of four months in the state penitentiary. From which sentence the defendant has appealed by transcript.

The defendant has assigned the following errors as grounds for reversal of the judgment:

“I. The court erred in its instructions to the jury.
“2. The court erred in refusing to give the requested instruction offered by the defendant below.
“3. The court erred in overruling defendant’s motion for a new trial.”

It is argued by the defendant that the court erred in giving its instruction No. 4, in which it defined to the jury what constituted intoxication, and under what circumstances the defendant would be guilty of the offense of operating a motor vehicle while under the influence of intoxicating liquor. No authorities are cited in the defendant’s brief to- support his contention as to the alleged error committed by the trial court in its instruction to the jury.

As there is no testimony in the transcript to show what the facts were, we have carefully examined the transcript, and hold that the defendant was accorded a fair and impartial trial; that there are no errors in the transcript sufficient to warrant a reversal.

The judgment is affirmed.

EDWARDS, J., concurs. CHAPPELL, J., absent, not participating.