text:
    BEN BOWDRY v. STATE.
    No. A-10542.
    March 6, 1946.
    (166 P. 2d 1018.)

      R. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Randall S. Cobb, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Ben Bowdry, was charged in the court of common pleas of Oklahoma county by information, with the crime of unlawful possession of intoxicating liquor. A jury was waived, the defendant was tried to the court, found guilty, and sentenced to serve a term of 30 days in the county jail and pay a fine of |50 and costs, and has appealed.

Before the trial of this case, the defendant filed a motion to suppress the evidence obtained by the officers in a search of defendant’s premises. Evidence was introduced at the hearing on this motion. After the motion was overruled, the parties stipulated that the evidence introduced at the hearing on the motion to suppress could he considered as the evidence in the case. In addition, it was stipulated that the search and seizure of the whisky in this case was in Oklahoma county and that the officers found 840 pints of whisky.

It is first contended that no venue was proved. Counsel who filed the brief for defendant in this court did not appear as counsel for defendant in the trial of the case, and in making this assignment of error evidently has overlooked the stipulation entered into at the time the case was submitted on its merits. It is true that there was no testimony showing venue at the hearing on the motion to suppress, but the stipulation specifically stated that the seizure of the intoxicating liquor was made in Oklahoma county.

It is next contended that the court erred in overruling the motion to suppress evidence on three grounds: First, the search warrant was void because it was not directed to and served by any proper peace officer in Oklahoma county. Second, the search warrant is void because it was a “John Doe warrant,” and did not sufficiently and particularly describe the place to be searched. Third, the search warrant did not authorize the search of the automobile trailer where the liquor was found, but was limited to the search of “a one story yellow frame dwelling house and out buildings.”

The search warrant is directed to “any sheriff, constable, marshal, or policeman, or state investigator in the county of Oklahoma.” The proof showed that two investigators working out of the Department of Public Safety secured a search warrant out of the justice of the peace court of Otis D. James, justice of the peace, in Oklahoma City, and that these two investigators, armed with the search warrant, made a search of the premises occupied by the defendant and described in the search warrant as “a one story frame yellow dwelling house and out buildings located approximately % mile North of N. W. 23rd and Meridian street and being the first house North on East side of Meridian from 2430 N. Meridian, Adj. to Oklahoma City, in Oklahoma County, Oklahoma.”

C. C. Crabb, one of the investigators, testified that he did not know the occupant of the premises and that the name “John Doe” was inserted in the search warrant for that reason. The intoxicating liquor seized by the officers was found in an automobile trailer by the side of an old garage or chicken house on said premises.

In Mitchell v. State, 74 Okla. Cr. 416, 127 P. 2d 211, this court had occasion to discuss the validity of search warrants served by investigators out of the Department of Public Safety. In that case, it is stated:

“A search warrant is process within the meaning of Const, article 7, § 19, and Title 12, § 51, O. S. 1941, and must run in the name of the State of Oklahoma, and under thé provisions of Title 37, § 84, the warrant must be directed to a peace officer in the county in which it is issued for service.”
“Under 74, O. S. 1941 § 149, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have the authority of other peace officers, including the right and power of search and seizure, but excluding the service of civil process.”
“In order for an investigator appointed by the Commissioner of Public Safety to make a lawful search under the above statute, there must be a specific designation in the search warrant directing him to serve the same or if the warrant is specifically directed to a named officer in a certain county, he may assist such officer if the officer is present and requires his aid.”

Since the search warrant -specifically designated a State Investigator as one of the officers who might serve it, it is our opinion that this contention of defendant can not be sustained.

In Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196, this court held that it was not reversible error when the name “John Doe” is inserted in the search warrant if the name of the party residing on the premises to be searched is unknown.

This would be especially true where the warrant is for the search of premises and not that of a person and the premises are sufficiently described in the warrant by other allegations than the name of the owner. Quick v. State, 75 Okla. Cr. 176, 129 P. 2d 604.

The defendant further contends that since the search warrant was for the search of “a one story frame yelloAV dwelling house and out buildings located * * * ,” that it did not authorize the search of the trailer in which the Avhisky Avas found. The proof showed that the whisky Avas found in an old trailer sitting behind the garage about 30 feet from the defendant’s house. The garage had been converted into a chicken house and there were chickens living in it.

The case of Perry v. State, 72 Okla. Cr. 149, 114 P. 2d 185, is cited by defendant to sustain this proposition. However, in the Perry Case, the automobile searched by the officers was not on the premises described in the search warrant. Here, the trailer in which the Avhisky Avas cached Avas within the curtilage of the dAvelling house and we think properly an object that could have been searched under the warrant. If the trailer had been sitting in the garage or in the house, it could have been searched the same as a trunk, a box, or any other object which might have been within the enclosure of the house or any of the outbuildings. The fact that the trailer had been rolled out of the garage so that the garage could be converted into a chicken house does not make a search of it invalid where it remains within the curtilage.

If there would be any reason at all for a reversal of this conviction, it would be solely because the punishment pronounced by the trial court was far too lenient, in considering that the defendant was an old offender and was caught with an enormous quantity of whisky.

The minimum punishment which was assessed in this case could certainly not be said to be discouraging to those who might wish to engage in the liquor traffic. We are quite sure that counsel for defendant would not want this court to reverse the case and send it back for another trial for fear that his client would get all of the punishment which he deserves.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    F. T. STROUD v. STATE.
    No. A-10533.
    March 13, 1946.
    (167 P. 2d 80.)

      Utterback & Utterback, of Durant, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Douglas Garrett, County Atty., Muskogee County, of Muskogee, for defendant error.
   BAREFOOT, J.

Defendant, F. T. Stroud, was charged in the county court of Muskogee county with the crime of leaving the scene of an accident and failing to stop and give information, as required by the laws of the State of Oklahoma. He was tried, convicted, and sentenced to pay a fine of $50 and costs, and has appealed.

Five assignments of error are presented:

“ (1) Error in overruling defendant’s demurrer to the evidence.
“(2) The verdict is not sustained by sufficient evidence.
“(3) The court erred in admitting hearsay evidence on behalf of the state.
“(4) The court erred in giving certain instructions to the jury.
“(5) Because of the above, it was error for the court to overrule defendant’s motion of new trial.”

This cause arose by reason of charges that defendant drove his automobile against the body of J. M. Coates, a flagman for the M. K. & T. Railroad Company, on January 20, 1944, at the intersection of Okmulgee street and the “Katy” tracks, in the city of Muskogee. Mr. Coates was knocked down by an automobile about 7 o’clock in the evening as he was attempting to cross the street at the intersection.

The state introduced the testimony of J. M. Coates, the party who was struck; J. R. Rowden, another flagman for the railroad company, C. E. Thomas who was driving his car immediately behind that of the defendant, and three police officers.

Mr. Coates testified that he was on duty at the time he was struck; that he did not see the car before he was hit, and did not know who struck him. He was unable to identify either the car or the driver. He was knocked unconscious, suffered a cut on his head, and was skinned and bruised. He was taken to the hospital where he remained until the next afternoon, and was confined to his home for ten days thereafter.

Mr. Rowden testified that he .was crossing the street with Mr. Coates at the' time he was struck; that he was seven or eight feet in front of him and did not see the car until after it struck Mr. Coates. He did not get the license number, but a soldier who witnessed the accident took it down and gave it to him, and he in turn handed it to the police when they arrived at the scene. He heard the impact, looked around, and saw Mr. Coates rolling, and the car driving away. The car did not stop, and he could not identify it or the driver.

C. E. Thomas testified that on the night of the accident he drove up immediately behind the defendant; that traffic had been blocked by a switch engine; that he did not see defendant’s car strike Mr. Coates, but saw him fall, arid learned that-he had been struck by defendant’s car. His daughter, who was in the car with him, wrote down the license number of the car, and witness followed several blocks before overtaking it. He stopped defendant, and told him that he had struck someone and that he had better go back. He testified that defendant answered, “Allright,” and thanked him, but turned and drove off in another direction. Mr. Thomas followed him to his home, and then went into the home of a neighbor and telephoned for the police. He waited until the officers arrived, turned over to them the license number which his daughter had written down at the scene, told the officers all he knew about the occurrence, and went home.

Jim Leninger, a member of the Muskogee police, testified that he received a call about 7 o’clock, and with Houston Johnson went to Okmulgee avenue and the ICaty tracks, where they found Mr. Coates, who had been knocked doAvn by an automobile; that the license number of the car Avas given to him by Mr. Rowden, and acting upon this information an investigation was made and the defendant Avas later arrested, and charged, as above stated.

Aubrey Chambers, a police officer, testified that he was at the police station when a call came in reporting an accident at the railroad crossing; that he remained at the police station and a short time thereafter they received a call from a party later identified as C. E. Thomas; that witness and another officer answered the call and met Mr. Thomas, who furnished them with the license number of the car involved in the accident; that they found the car in the garage of defendant, and after investigation the defendant was arrested. He testified that the defendant stated he did not know he had hit anyone, but admitted that someone had stopped him and told him that he had struck someone, and when asked why he did not go back to the scene of the accident after being told about it, he answered that he thought if he had done any damage they could look him up.

Defendant, testifying in his own behalf, gave a detailed statement of his route home, and testified that he did not strike anyone. He admitted that Mr. Thomas had stopped him, and that: “He said I hit a man, and I said I had not hit anyone, that I had been driving a car for 30 years and never hit anyone.”

It is contended by defendant that hearsay testimony was introduced which deprived him of a fair trial. This contention is based upon the testimony of the witness Thomas, who testified that the license number of defendant’s car was written down by his little girl, who was in the car with him at the time of the accident; and the testimony of the police officers that they were given the license number by Mr. Thomas; and by the other flagman at the scene of the accident.

This all happened at the time of the accident, and such spontaneous actions by eyewitnesses were admissible as a part of the res gestae. Under the circumstances here, it was the only way to identify the car and the one driving it. However, irrespective of this, we think the evidence of the witness Thomas alone was sufficient to justify the jury in finding the defendant guilty.

The contention that the evidence is insufficient to sustain the verdict and judgment cannot be upheld. It is at the best conflicting, and the evidence of the state, if believed by the jury, as the verdict indicates, was sufficient for them to reach the conclusion that the defendant was the driver of the car that struck and injured Coates. The undisputed testimony was that the party who struck him did not stop and give the. information as required by Oklahoma statutes. This statute, 47 O. S.1941 § 104, is as follows:

“Whenever an automobile, motorcycle, or other motor vehicle whatsoever, regardless of the power by which the same may be propelled, or drawn, strikes any person or collides with any vehicle containing a person, the driver of, and all persons in control of such automobile, motor vehicle or other vehicle shall stop and such driver and person having or assuming authority of such driver shall further give to the occupants of such vehicle or person struck, if requested at the time of such striking or collision or immediately thereafter, the number of such automobile, motorcycle or motor vehicle, also the name of the owner thereof and his address, and the names of the passenger or passengers not exceeding five in each automobile or other vehicle, together with the address of each one thereof.”

As to whether or not defendant knew at the time he had struck anyone was a question for the jury, under all the facts and circumstances. This conflict in the evidence was decided by the jury against the defendant, and should not be set aside by an appellate court.

The assignment of error with reference to the instructions of the court is that the court referred to the facts as if there had been a collision between two automobiles, while the evidence did not show a collision between two automobiles, but that a party was struck by an automobile while walking across the street. From reading the instructions, it seems that the court had used a “stock” instruction, and where the word “vehicle” appeared therein, it had been stricken out and the word “F. T. Coates” had been inserted; but the expression “containing any person and failed to stop and give the occupant of the automobile struck,” etc., was left in the instruction.

We have examined the instructions as a whole, and there is no doubt but that they clearly conveyed the issue of “striking one” as provided by the statute. The statute hereinbefore quoted was set out in full in the instructions, and while the instruction complained of may not have been as well worded as it might have been, there can be no question, from a reading of all the instructions, that the defendant was not prejudiced in any way by the instructions given.

From a careful examination of the record, we are of the opinion that the judgment of the county court of Muskogee county should be affirmed. It is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    ROY McGUGAN v. STATE.
    No. A-10531.
    March 13, 1946.
    (167 P. 2d 76.)

      John W. Tillman and Fred A. Tillman, both of Paw-huska, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Roy McGugan, was charged in the district court of Osage county with the crime of rape in the first degree; was tried, convicted, and sentenced to serve 15 years in the State Penitentiary, and has appealed.

The brief of defendant is devoted mainly to the contention that the evidence is insufficient to sustain the conviction. However, in connection with this assignment of error, counsel argue that the defendant was denied a fair and impartial trial because of the admission of certain evidence over the objection of counsel for defendant.

The prosecuting witness was a young Indian woman. She testified that on June 1,1943, she was standing on the highway leading from Fairfax to Pawnee, trying to catch a ride to Pawnee. That the defendant came along in his automobile, stopped, and she got into his car. She then testified as follows:

“A. Well, when I was in the automobile he asked me where I was going and I told him Pawnee and he said, ‘Well, how much would you give me if I was to take you clear down to Pawnee,’ I said, ‘Well, I am a poor girl, I don’t have no kind of money. I said if I had I would not start walking and he said, ‘Well,” he said, ‘haven’t you got anything else,’ and I said, ‘No, sir, I don’t have anything else.’ ‘Well,’ he said, ‘We will make a deal on that,’ he said, ‘I said, ‘Well’- — and then he said I have to go up here to a house and see a fellow,’ he said, ‘and then from there I will take you on.’ I said, ‘No sir, I would rather stay on the- — excuse me — people, but I stutter — you will have to overlook it; and said, ‘Well, I said, ‘ I would rather stay on the paved, road.’ I said, ‘You let me off on the corner;’ and he started turning off. * * * Q. How far did you ride with him on the main highway? A. I don’t exactly know the length, but it was about — well, about two miles and a half or something like that. And he wasn’t driving fast either. Q. Now tell the jury and the court if he turned his automobile off the highway. A. He did, he turned his automobile off the highway and went west. Q. Did you do anything or say anything to him when he turned off the highway? A. Well, I told him I was going to get off there and when I insisted he kept saying no, ‘No, I will take you on after we get there;’ but anyway, I turned the key off, and then after the car would not stop I threw the key on the — I jumped up and said there is your key and run; and then he tackled me from behind.”

The witness further testified that she and the defendant started scuffling and he twisted her arm and made her return to the car with him. That he drove the car down near a creek and forced her to get out. That he continued to hold her arm and made her cross a barbed wire fence which he held down with his foot. That they went around a little grove of trees and up by some high weeds where he accomplished the act of sexual intercourse with her. That after he had finished he went to the creek to wash and she went back to his car and got her package and went to the highway. That shortly after she got to the highway, she flagged down a pick-up truck with a boy and an old man in it and had them take her to town. That she went to the police station and reported what had occurred.

Over the objection of counsel for defendant, the prosecuting witness testified that she had married one Lawrence Hawkins in '1938, and that at the time of the alleged commission of the crime, he was serving overseas with the armed forces, and further testified that at the time of the trial he was a patient in the Bane Hospital at Washington, D. O.

Jim Ivastl, a Fairfax policeman, testified that the prosecutrix came into the police station during the noon hour on June 1, 1943, and said she had been' raped. Over the objection of counsel' for defendant, the officer was allowed to detail the conversation which he had at that time with the prosecutrix. His testimony as to the statements made by the prosecutrix to him and another policeman on that occasion covered about three pages in the record and was admitted by the trial court on the theory that it was a part of the res gestae.

Lee Reddick, another police officer of Fairfax, testified to substantially the same facts as related by the witness Kastl. The officers testified on cross-examination that they arrested the defendant there in Fairfax shortly after they had returned from making an examination of the place where the act is alleged to have occurred. The officers further testified that, at the place where the act is alleged to have occurred, some twigs had been broken from some bushes and a “sort of bed had been made.” In further testifying about this particular point, the officers said that it looked as if some one had broken some twigs or had pulled up some little bushes and had laid them on the bare ground where the prosecutrix said the act occurred.

The defendant testified in his own behalf and admitted picking up the prosecutrix at the place which she had testified. He admitting committing the sexual act Avith the prosecutrix, but stated that it Avas done with her consent and was purely a commercial proposition. He SAVore that after he picked up the prosecutrix she said she Avanted him to drive her to PaAvnee and told him she had everything but money to give him to take her to Pawnee. That he turned off on the dirt road and she objected to committing the act at that place, but Avanted him to take her on to Pawnee first. That they had an argument there and she grabbed the keys from his car and started to run. That he caught her and took the keys away from her. That she got back into the car with him and he drove on down the road about one-quarter of a mile, across a creek. That she then agreed to commit the act Avith him if he would pay her for it, to which he agreed. That he then held up the barbed Avire fence while she went under it. That they walked a little way around the edge of the creek to some high weeds where they would be out of sight of the highway and that she broke some twigs to make her a bed before she lay down, so that she would not get dirty.

There were several witnesses Avho testified to the defendant’s good reputation in the community. Also, there were some witnesses who testified concerning conversations had with the prosecutrix in which it was alleged that she agreed not to appear if the defendant would pay her some money.

Counsel contend that the testimony of the prosecu-trix to the fact that she had a husband who was overseas at the time the act occurred was a determining factor and weighed heavily with the jury in their consideration of the guilt or innocence of the defendant. In their motion for new trial, the defendant alleged that prosecutrix had sworn falsely about being married to Lawrence Hawkins and introduced testimony by a brother-in-law of the alleged husband of the prosecutrix, who testified that the prosecutrix married Lawrence Hawkins, in South Dakota, on the Indian Agency, in 1938, and that they lived together about two months, at which time she ran off with another man and never lived with the said Hawkins after that date. That Hawkins was not in a government hospital in Washington as testified by prosecutrix, but was in Italy. That, later, after she separated from Hawkins, she commenced living with an Indian by the name of Franklin No Ear, and, while living with him in 1941, gave birth to a son. Another Indian, DeMoin Feathers, swore that he had lived with the prosecutrix as husband and wife for a time after January 1, 1939. There was considerable testimony offered in support of the motion for new trial, on the ground of newly discovered evidence, to show that the prosecutrix had lived with various men and was receiving a government allotment of pay for her child from a man other than the man Hawkins, who she testified was her husband. Also included in the evidence was testimony concerning her being drunk the night after the act is alleged to have occurred, in which she made statements concerning the alleged crime different from her testimony at the trial.

Ordinarily, we would say that the testimony concerning the fact that the prosecutrix was married and the whereabouts of her husband would be admissible, or, at least, it would be so immaterial that it could not vitally affect the issue of the guilt or innocence of the defendant, but, when considering all of the peculiar circumstances surrounding this alleged incident, it is easily seen that such evidence might have weighed heavily against the defendant in this case.

We think the testimony of the officers in which they detailed all of the statements made to them by the prose-cutrix was inadmissible as hearsay.

In the recent case of Frazee v. State, 79 Okla. Cr. 224, 153 P. 2d 637, this court held:

“The term ‘res gestae’ is not subject to any exact definition which will fit all cases, but in a general way it may be defined as the circumstances, facts, and declarations that grow out of' the main facts, and shed light upon it and tend to explain it and made at a time so near, either prior or subsequent to main act, as to exclude idea of deliberation or fabrication.”
“A fixed measure of time or distance from main occurrence cannot be established as a rule to determine what should be part of res gestae, but each case must necessarily depend upon its own circumstances to establish whether facts offered were a part of same continuous transaction.”
“Whether hearsay evidence is admissible as a part of res gestae is a matter within trial court’s discretion, and trial court’s ruling will be upheld on appeal unless there appears an abuse of discretion.”

In the body of the opinion, this court quoted from the case of Cook v. State, 27 Okla. Cr. 215, 226 P. 595, as follows:

“Hearsay evidence may be admissible as a part of the res gestae. One of the recognized exceptions to the rule that hearsay evidence is not admissible is where spontaneous statements or exclamations are made by an injured person, declaring the circumstances of the injury, where such statements are made immediately after the injury or during such indefinite time thereafter as the stress of pain, fear, or excitement prevents the reflective faculties of the narrator to control, so that the utterances are spontaneous and in direct response to the sensations produced by the physical shock or mental excitement. The utterances, to come within the exceptions to the rule, must be under the uncontrolled domination of the senses, so near in point of time that considerations of self-interest and reflection could not have been fully restored.”

In determining whether the court abused its discretion in admitting the testimony of the officers concerning the statements by the prosecutrix, the evidence shows, after the act was committed, the prosecutrix returned to defendant’s automobile, took a package therefrom, and went to the highway over a quarter of a mile away where she caught a ride two and one-half or three miles back to Fair-fax. The owner of the truck which carried her back to town testified at the trial that he picked up the prosecu-trix about 125 yards north of the crossroad on the highway. The man testified that she sat in front with him and he did not pay very much attention to her. That she was awfully quiet and he did not notice anything unusual about her conduct or her appearance. That she did not say a half dozen words on the way to town and did not say anything at all about having been raped. This witness was subpoenaed to appear by the state, and we think his testimony shows that, if the prosecutrix had been outraged, that she had recovered control of her feelings, and that anything she said after she was taken back to town could not be said to have been a spontaneous utterance produced by the physical shock or mental excitement of the alleged crime. If the prosecutrix had run to the highway and had stopped the car immediately after the act is alleged to have occurred, had given the appearance of being in a shocked condition, and had related the circumstances of the crime, such testimony would probably have been admissible as a part of the res gestae, but, instead of doing that, she had walked 125 yards up the highway, after she had arrived at the highway from the place where the crime is alleged to have been committed. She got into the automobile to ride to town, and made no mention of having been attacked. Under such circumstances, we think the admission of this evidence by the police officers as to her statements was an abuse of discretion on the part of the trial court. When it is considered that this is a case depending entirely for a conviction upon the fact that the prosecutrix resisted to the utmost, but that her resistance was overcome by the force of the defendant, this court must necessarily weigh all of the circumstances in determining whether the court erred in the admission of certain testimony. The jury itself was undecided for a long period of time. Twice they reported to the court they they were dead-locked, but, after having the testimony of the prosecutrix read to them, they finally returned a verdict of guilty and assessed the minimum punishment.

Upon a consideration of all the facts and circumstances in this case, including the admission of the evidence herein above discussed, and further considering the facts disclosed in the evidence introduced in support of the motion for new trial, this court feels that the evidence is such' that the defendant is entitled to a new trial, where the hearsay testimony of the officers will not be admitted in evidence and the evidence will be confined to facts which are material only to the guilt or innocence of the accused.

For the reasons herein above stated, the judgment of the district court of Osage county is reversed and remanded for a new trial consistent with the views herein expressed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    In re JACK DAY.
    No. A-10500.
    March 20, 1946.
    (167 P. 2d 380.)
    John L. Ward, of Tulsa, for petitioner.
    Randell S. Cobb, Atty. Gen., for respondent.
   JONES, P. J.

The petitioner, Leo Day, acting by and through his father, Jack Day, instituted this original proceeding in habeas corpus to secure his release from confinement in the county jail of Tulsa county.

The principal contention of this petitioner was that he was a minor and that the evidence introduced at his preliminary examination before the court of common pleas of Tulsa county was wholly insufficient to show that any crime had been committed, and, also, that there was no probable cause to show that the petitioner had committed a crime. At the request of counsel for petitioner, the hearing on said petition was continued from time to time on accoqnt of the illness of said counsel. Counsel for petitioner did not recover from his illness and passed away during the pendency of this action. Thereafter, said cause was set for hearing and submitted upon the petition and demurrer thereto presented on behalf of respondent.

There is not attached to the petition a certified copy of the transcript of the evidence taken at the preliminary examination, so we are unable to determine just what proof was introduced at that time. There is, also, no allegation nor proof as to whether an information had been filed in the district court of Tulsa county against the petitioner.

This court has held that, after an indictment or information has been filed in the district court, the question of guilt or innocence will not be inquired into on habeas corpus. Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461, following Ex parte Patman, 20 Okla. 846, 95 P. 622.

Before an indictment or information is filed, the duty of a court in a habeas corpus hearing is similar to that of a magistrate in a preliminary examination and determines only the particular restraint complained of. If the court hearing the matter discharge the accused, its order would not be final, as the prosecutor could again file a complaint and have another preliminary examination. Ex parte Johnson, supra; Ex parte Beville, 6 Okla. Cr. 145, 117 P. 725, 726.

In Ex parte Beville, supra, it is held:

“The courts exercise a supervising jurisdiction over the proceedings of an examining magistrate by means of habeas corpus, and inquire into the legality of the commitment and the question of probable cause.”

An examination of the petition shows that it pleads only conclusions of law. Since there is no mention in the petition as to whether an information was filed in the district court, and, since there is not attached a transcript of the evidence taken before the magistrate at the time of the preliminary examination, the petition is insufficient for this court to determine whether the petitioner is deprived of his liberty without due process of law. Since the burden in a habeas corpus proceeding is on the petitioner to show his unlawful restraint, it follows that the petition for writ of habeas corpus be and the same is hereby denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    STANLEY STEEN v. STATE.
    No. A-10517.
    March 20, 1946.
    (167 P. 2d 375.)

      E. P. Hill, W. J. Hulsey, and Geo. L. Hill, all of McAlester, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Tom G. Haile, Co. Atty., Pittsburg County, of McAlester, for defendant in error.
   BAREFOOT, J.

Defendant, Stanley Steen, was charged jointly with Mose Johnson with the crime of murder, in Pittsburg county; was granted a severance, tried, convicted and sentenced to death by electrocution. From this judgment and sentence, he has appealed.

The Governor of the state, in compliance with 22 O. S. 1941 § 1003, requested of this court an advisory opinion of the Judges in this case. Thereafter, and on April 18, 1944, defendant filed his appeal in this court. Subsequent thereto, the case was set for oral argument; was argued, and briefs for both the defendant and the state have been filed. It now becomes the duty of this court to pass upon the appeal. In re Opinion of the Judges, 54 Okla. Cr. 103, 14 P. 2d 956; In re Opinion of the Judges, 35 Okla. Cr. 39, 248 P. 350.

The defendant was charged jointly with Mose Johnson by information with the killing of Pat Riley in the State Penitentiary at McAlester on December 13, 1943. The deceased was employed as a sergeant of the guard at the State Penitentiary, and the defendant was an inmate of the Penitentiary.

The facts with reference to the killing were as follows :

On December 13, 1943, the deceased, Pat Riley, was making an investigation of certain crimes that had been committed by inmates of the penitentiary within the walls, and one of which was reports that an inmate by the name of L. C. Smalley had been hijacked. There had been some indication that the defendant and his co-defendant, Mose Johnson, were involved. Between 2:30 and 3 o’clock in the afternoon, the deceased went to the compressor room of the ice plant, within the walls of the penitentiary, for the purpose of seeing the defendant and Mose Johnson. Several witnesses testified to what happened. There was some conflict of minor details, and some witnesses saw and heard statements made that others did not hear and see. But most of the testimony was uncontradicted, and each witness corroborated the other as to the main facts.

Deceased told the defendant and Johnson that he wanted them to go with him to the sergeant’s office, and the defendant said, “No, we are not going with you, you have made your last pinch here, you old flat-footed ., you have made your last pinch here.” The deceased was then attacked by both the defendant and Johnson. The defendant had a long-bladed knife that had been made in the penitentiary, and Johnson had some kind of an iron instrument, presumably a hammer. The deceased was hit by Johnson with the hammer, and cut and stabbed with the knife by the defendant.

Dr. E. P. Davis, who examined the body, testified as follows:

“Q. Later in the afternoon did you again see him (Pat Riley)? A. I saw his body in the afternoon. Q. Was he at that time dead? A. He was. Q. Where did you see the body? A. In the surgical room of the prison hospital. Q. Did you make an examination of the body to determine its condition? A. I did. Q. State what your examination showed? A. At that time I made a written description of the wounds. This was made at 3 p.m. Description of the wounds found on the body of Pat Riley, who expired at 3 p.m., this date. Two inch incised superficial wound at the junction inner third of left clavicle. Three inch— Q. Pardon me, Doctor, ‘clavicle’ means jaw bone? A. No, this bone is here, Judge (indicating). Three inch incised wound mid-chin extending into mouth, last three-fourths inch cut through. Bruise over right eye. Incised stab wound one inch in diameter, two inches deep, four inches from left spinal column at level of ninth rib. Heavy bruise and broken skin at mid-temple region just above nose. Incised wound to bone, palmar surface of left thumb. Slight incised wounds on palmar surface of third, fourth and fifth fingers left hand at the tips. Also slight incised wounds dorsal surface of left band just between thumb and index finger. Incised wound to bone on index finger and slight cut on fourth and fifth finger, palmar surface, right hand. And that was all.”

On cross-examination:

“Q. Doctor Davis, refer to your notes, if you please, and tell the jury how many knife wounds there were on the body? * * * A. I counted twelve incise wounds.”

After deceased had been cut and hit and was dead, defendant said, “Let’s put him in the boiler and burn him up.” They carried the body to the steps leading down to the boiler room, and Johnson said, “No, we can’t do that, he is too big”; and defendant said, “Let’s leave him here and go get the other.” Both the defendant and his codefendant Johnson left the compressor room and went to the canteen, which was about 75 feet distance. They entered the canteen, where L. C. Smalley, an inmate, was working. Two witnesses were in the canteen at the time and saw them enter in a hurry, and go to where Smalley was working. The clothing of both was bloody and a long knife was seen by the witnesses in the pocket of defendant. • They immediately attacked Smalley, and Mose Johnson hit him with an iron instrument which the witnesses could not describe, and defendant cut and stabbed him a number of times with the knife he had. Defendant stabbed Smalley after he had been knocked down by Johnson. Smalley died from the effects of the wounds inflicted. The defendant and Johnson immediately left the canteen by the door they had entered, and were encountered by the guards, who had been called to the scene. Johnson came out of the canteen fighting and was knocked down by one of the guards, and lay upon the ground, feigning death. The defendant was hit on the head by one of the guards with a walking stick, and the next lick liit him on the arm and knocked the knife which he had in his hand to the ground. The defendant said, as he came out of the canteen, “I’ll kill every God-damn one of yon.” Jnst at this time the guard at the east gate fired two shots, and the defendant gave up and was taken in custody by the guards. A hammer was found lying by the body of Johnson where he had dropped it when he fell to the ground.

It is unnecessary to give further details. A period of only a few minutes elapsed between the killing of Riley and the killing of Smalley. The distance from the compressor room to the canteen was about 75 feet. Defendant interposed a defense of insanity.

A number of witnesses who had known defendant while in the penitentiary, and some who had known him before, testified relative to his actions and conduct at different times, and on the date of the killing, and that from such actions he, in their opinion, was insane. Members of his family testified that his father had been subject to “spells,” and that when they began to come on him he would tell the members of the family to leave home, for fear he would Mil some of them. They would go into the woods and stay until they learned he had recovered. None of them had ever seen the father in one of the “spells.” It was also shown that defendant’s mother had been sent to the insane asylum at Vinita, Oklahoma, on June 17, 1936, and remained there for a period of ten months.

Dr. Herbert A. Wilson, called by defendant, testified in answer to hypothetical questions propounded by counsel for defendant and the state. His answers as to whether he was of the opinion that defendant was insane were not very satisfactory.

The state in rebuttal placed upon the witness stand a number of employees at tbe penitentiary who testified that from their observation of defendant, and his acts and conduct, that he was not, in their opinion insane at the time of the commission of the crime.

The court, by proper instructions, presented the question of insanity to the jury. No exceptions were taken thereto. The jury, after considering all of the evidence, found the defendant guilty and assessed the death penalty. They did not find the defendant insane, as they could have done under the instructions of the court. However, if there had been error in the instructions, we would not hesitate to consider them even though no exceptions were taken thereto.

It is contended by defendant that the admission of evidence of the killing of L. C. Smalley was error, for the reason that it permitted a crime other than the one for which defendant was being tried to be proven. It is contended that since the defendant admitted the killing of Riley, and entered a plea of insanity, that it was error to admit this evidence. The record does not reveal that the defendant admitted the killing of Riley. He entered a plea of not guilty, and upon this plea being entered, it became the duty of the state, under the law, to prove the commission of the crime as charged in the information.

The statement of the case, as above outlined, clearly reveals that the killing of Riley and of Smalley were so closely related that all of the facts in the killing of Riley necessarily involved proof of the killing of Smalley. It comes within the rule of being a part of the res gestae. The facts as above related show that the killing of Riley had hardly been consummated until defendant declared the intention to “get” Smalley, and they then proceeded in a run to the canteen where he was working, not to exceed a distance of 75 feet, and Smalley was attacked and killed in a very similar manner to the killing of Riley. These facts come clearly within the rule of res gestae as announced by this court in numerous decisions. Austin v. State, 28 Okla. Cr. 73, 228 P. 1113; Sango v. State, 52 Okla. Cr. 359, 5 P. 2d 400; Skelley v. State, 64 Okla. Cr. 112, 77 P. 2d 1162; Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 797; Frazee v. State, 79 Okla. Cr. 224, 153 P. 2d 637; Feil v. State, 81 Okla. Cr. 133, 161 P. 2d 770; Creen v. State, 81 Okla. Cr. 282, 163 P. 2d 554, 556; People v. Prantikos, 164 Cal. 113, 127 P. 1029; State v. Nordmark, 84 Kan. 628, 114 P. 1068.

In the case of Austin v. State, supra, the court said [28 Okla. Cr. 73, 228 P. 1114]:

“The cutting of the Gibson girl by the defendant occurred very shortly before deceased received his fatal stab. It was a part of the same transaction and explanatory of the motive of the defendant in cutting and killing the deceased. It is competent to shoAV the actions, conduct, and general demeanor of the defendant immediately preceding the killing for the purpose of proving that she was armed and in a vicious humor; provided that such conduct is so near to the time of the homicide as to tend to show the state of mind of the defendant at the time of the killing. In this instance, we think this evidence is clearly a part of the res gestae, and the mere fact that it incidentally tended to show the commission of another offense in the stabbing of the Gibson girl did not render it inadmissible if for other reasons it was competent. Williams v. State, 4 Okla. Cr. [523] 524, 114 P. 1114; Hampton v. State, 7 Okla. Cr. 291, 123 P. 571, 40 L.R.A., N.S., 43; McLaughlin v. State, 18 Okla. Cr. 627, 197 P. 717; 2 R. C. L. 21, p. 517.”

And in the case of State v. Nordmark, supra, the court said [84 Kan. 628, 114 P. 1070]:

“Nor was there error in admitting the testimony of Dr. Decker, the coroner, in regard to the condition of the bodies of Lindahl and his children. It is insisted that testimony as to tbe children had no bearing on the charge of killing Lindahl, and was necessarily prejudicial to appellant. The shooting according to the testimony was a single and continuous transaction, as all the Lindahls appear to have been killed at practically the same time and by the same means. The testimony as to the children not only assisted in showing how the killing was done, but ,it also tended to show the plan and purpose of the accused in committing the crime charged. The fact that evidence which tends toward proving an accused guilty may also tend to prove the commission of another offense does not render it inadmissible. State v. Calhoun, 75 Kan. 259, 88 P. 1079; State v. Hansford, 81 Kan. 300, 106 P. 738; State v. Chance, 82 Kan. 388, 108 P. 789, 27 L. R. A., N. S., 1003 [20 Ann. Cas. 164].”

Under these decisions this evidence was clearly admissible, as not only being a part of the res gestae, but as strong evidence as to the state of mind of the defendant and the existence of a scheme, plan or conspiracy to kill both of these parties.

We have re-examined the cases of Johnie Williams v. State, 68 Okla. Cr. 348, 98 P. 2d 937, and the case of State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69, cited in the Williams Case and relied upon by the defendant in this case. These cases are clearly distinguishable from the instant case. In the Williams Case, the offenses offered to be proven were over a year in one instance, and over seven months in the other, prior to the time of the alleged offense, and in the Lapage Case a difference of four years existed. In each of these cases, there was no connection between the two crimes. The Williams Case recognized the principle here announced, when it was said [68 Okla. Cr. 348, 98 P. 2d 939]:

“Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestae.
“Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.”

The same is true of the case of Byers v. State, 78 Okla. Cr. 267, 147 P. 2d 185, cited by defendant.

■ The contention of the defendant that the county at.torney should have, at the time of the admission of the testimony of the killing of Smalley, stated to the court the reason for the admission of this testimony, and that the court should have instructed the jury as to the purpose for which it might be considered, has to some extent heretofore been discussed. Defendant overlooks the fact that this testimony was a part of the res gestae, and for this reason admissible. It was not admitted to show the commission of another crime, but, as above stated, to show the state of mind of the defendant, and that he was in a vicious humor at the time of the killing of the deceased Riley, and as proof of a plan or scheme of defendant and his codefendant to kill both of these parties.

Counsel for defendant complains of error of the court in refusing to give certain requested instructions which contain the above contention. In the brief filed by the state, our attention is called to the fact that these requested instructions were not filed until February 22, 1944. The instructions of the court were given on February 3, 1944. These requested instructions were filed 18 days after the verdict had been rendered, and four days after sentence had been pronounced. The motion for new trial does not contain any reference to any requested instructions. However, .as these requested instructions appear in the record and are marked “Refused”, by the district judge, we have carefully examined the same, especially in view of tbe fact that this defendant was given the death penalty.

Requested instruction No. 1 was purportedly refused for the reasons heretofore stated. The evidence of the killing of Smalley was so closely related to the killing of the deceased Riley, that it was admissible as a part of the res gestae, as hereinbefore stated, and it was not necessary that an instruction be given explaining the reason for the admission of this evidence.

The contention that this evidence should only have been admitted on rebuttal, as covered by the second requested instruction, is untenable in view of what has heretofore been stated. This refused instruction directed the jury to disregard the evidence of the killing of Smalley because it was not introduced on rebuttal, but as direct evidence. It is our opinion that the court did not err in refusing this requested instruction.

The third requested instruction was with reference to the question of insanity, which was fully covered by the general instructions given by the court. We have carefully examined the instructions given by the court and they fully and fairly presented the issues as justified by the evidence of the state and the defendant, and no exceptions were taken to any of the given instructions.

The defendant having received a death sentence in this case, we desire to call attention to 22 O .S. 1941 § 1005, which provides:

“If, after his delivery to the warden for execution, there is good reason to believe that a defendant under judgment of death has become insane, the warden must call such fact to the attention of the county attorney of the county in which the prison is situated, whose duty it is to immediately file in the district or superior court of such county a petition stating tbe conviction and judgment and tbe fact that tbe defendant is believed to be insane and asking that tbe question of his sanity be inquired into. Thereupon, tbe court must at once cause to be summoned and impaneled from tbe regular jury list a jury of 12 persons to bear such inquiry.”

Under this section, provision is made for a proper investigation as to the sanity of one prior to bis execution; and as we stated in tbe recent case of Bingham v. State, 82 Okla. Cr. 5, 165 P. 2d 646, 656:

“The Governor of tbe state, likewise, has power to appoint expert alienists to observe the defendant and make an inquest into bis sanity.”

We now recommend such action be taken by tbe Governor before the execution of this sentence is carried out.

Finding no error, the judgment of tbe district court of Pittsburg county is affirmed.

Tbe original time for execution of tbe judgment and sentence having expired, owing to tbe pendency of this appeal, it is considered, ordered and adjudged that tbe judgment and sentence of the district court of Pittsburg county be carried out by the electrocution of this defendant on tbe 31st day of May, 1946.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    CLAUDE DAVIDSON v. STATE.
    No. A-10603.
    March 20, 1946.
    (167 P. 2d 381.)

      Wimbish & Wimbish, of Ada, for plaintiff in error.
    Rand ell S. Cobb, Atty. Gen., and Ewing C. Sadler, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Claude Davidson, was convicted in the county court of Pontotoc county of the crime of the unlawful possession of intoxicating liquor, and has appealed.

The Attorney General has filed a motion to dismiss the appeal which is as follows:

“1. The judgment and sentence in the aforesaid cause was entered in open court the 21st day of November, 1944, and filed in the office of the court clerk on the same date.
“2. The record fails to disclose any order by the court extending time within which to make and serve case made or time within which to file an appeal.
“3. The record shows further the petition in error and case made herein were filed with this court on January 22, 1945, which was 62 days after the rendition of said judgment and sentence, or two days after the expiration date within which said appeal could be filed, all of which is not in conformance with provisions of law and procedure as defined by 22 O. S. 1941 § 1054, and the decisions of this court.”

22 O. S. 1941 § 1054 is as follows: '

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

It has been uniformly held that the provisions of this section are mandatory, and not within the discretion of the court. In Fleetwood v. State, 16 Okla. Cr. 675, 676, 181 P. 157, this court in the syllabus said that the section “providing that an appeal must be taken within 60 days from judgment, unless the time is extended by the trial court or the judge thereof, is mandatory, and, where there was no extension, an appeal filed one day late would be dismissed.” To the same effect, see McAdams v. State, 17 Okla. Cr. 740, 192 P. 428; Demolan v. State, 5 Okla. Cr. 253, 114 P. 260.

This motion to dismiss appeal was set for hearing; no response was filed on behalf of the defendant and no appearance made at the time the case was set for oral argument. Under the record as herein above disclosed, it appears that the motion to dismiss the appeal should be sustained.

It is therefore ordered that the appeal is dismissed and the cause is remanded to the county court of Pontotoc county with directions to cause its judgment and sentence to be carried into execution.

BAREFOOT, J., concurs. DOYLE, J., not participating.