text:
    WILSON PHILLIPS v. STATE.
    No. A-9428.
    April 21, 1938.
    (78 P. 2d 828.)

      Wylie Snow, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

An information was filed in the district court of Coal county, charging that Wilson Phillips did in said county on or about the 5th day of March, 1987, commit the crime of operating and conducting a gambling game, in manner and form as follows:

“Did then and there, wilfully, unlawfully, wrongfully and feloniously conduct a certain gambling game, to wit: Poker, upon which money, checks or other evidences of value were bet and wagered by participants invited to said game by said defendant, and the said defendant was in charge of and did carry on the said gambling game aforesaid in the residence of John Phillips, in the city of Coalgate, Coal county, contrary to,” etc.

There was indorsed on the back of the information the names of witnesses, Milton Brown, Lee Pebworth, Bob Adams, and W. F. Gammon. Upon a plea of not guilty a trial was had and a verdict of “guilty as charged in the information and assess his punishment at a fine of $500 and one year in the state penitentiary” rendered.

He has appealed from the judgment rendered upon such conviction.

The errors assigned question the sufficiency of the evidence to sustain the conviction, and that the court erred in admitting incompetent evidence over defendant’s objections and exceptions.

The state relied for this conviction upon the testimony of Lee Pebworth, Bob Adams, and W. F. Gammon.

The complaining witness, Milton Brown, did not testify.

Lee Pebworth testified that he was at the residence of John Phillips, father of this defendant, on the 5th day of March, 1937; that Milton Brown, Ray Smith, Wilson Phillips, and witness were playing cards; that he was there for about 30 minutes, and when he left the card game was going on.

He further testified as follows:

“Q. What were you playing? A. We were playing a little poker. Q. Did you buy any chips over there in that game? A. Fifty cents worth. Ray Smith got a dollar’s worth. Q. From whom did you buy those poker chips? A. Wilson Phillips. Ray Smith bought a dollar’s worth. I don’t know how he got them. Q. Did he pay him with a dollar bill? A. Yes, sir. Q. Who was taking off for the house? A. I don’t know. Q. How often would he take off? A. I don’t remember. Q. You made a statement in this case to me, and I will ask you if you didn’t make this statement: By Mr. Snow: We object to his leading the witness. By the Court: You can impeach him if you plead surprise. (Exception allowed.) Q. This is your handwriting (hands witness paper) ? A. Yes, sir. Q. You made that statement? A. Yes, sir. Q. How often was he taking off? A. I don’t remember how often. Q. Didn’t you tell me that this defendant was taking off on every pot? Objection overruled. Exception allowed. A. Yes, sir.”

Cross-examination:

“You bantered him for a poker game, didn’t you? A. We first started playing cards. Q. Did you have any money? A. No, sir.”

Bob Adams testified:

“Q. Are you acquainted with the defendant, Wilson Phillips? A. Yes, sir. Q. Do you remember being over to his place on or about the 5th day of March, last spring? A. I don’t remember the date. Q. Do you remember when Ray Smith and Milton Brown were over there and Lee Peb-worth? A. I don’t remember seeing him. Q. You know Milton Brown? A. Yes, sir. Q. Was he there? A. Yes, sir. Q. What were they doing over there? A. They were gambling a little. Q. What kind of game was going? A. I really don’t know whether it was poker or not. Q. Did you see Milton buy any chips? A. I think I seen him get $1.00 worth. Q. Who did he buy them from? A. From Wilson.”

Cross-examination:

“Q. You don’t know what they were playing? A. No, sir. Q. You wasn’t in the game? A. No, sir. Q. Was John Phillips there? A. He was out the other way. We were in the kitchen at the time. He gave him a dollar. Q. You don’t know what he gave him a dollar for? A. No, sir.”

W. F. Gammon testified:

“Q. Do you remember the occasion about March 5th, 1937, being over at John Phillips’ house? A. Yes, sir. Q. Tell the jury what happened over there? A. Well, I seen a card game and four playing. Q. Who were there ? A. Milton Brown, Lee Pebworth, Wilson and another fellow I didn’t know. Q. How long did you stay there? A. 20 or 25 minutes. Q. Did you see any chips on the table? A. Yes, sir.”

Cross-examination:

“Q. You didn’t see anybody buy any chips? A. I saw the chips and cards there. Q. No money at all? A. No, sir.”

On the part of the defense Raymond Smith testified that about the 5th of March Milton Brown, Lee Pebworth, Wilson Phillips, and he were at John Phillips’ house. He further testified as follows:

“Q. Did you play any poker over there? A. We played with cards and chips, but we did not gamble. Q. Did you buy any chips from Wilson? A. No, sir. Q. Did you see anybody else buy any? A. No, sir. Q. When you got through with the game did you cash any chips you had left? A. No, sir. Q. Wasn’t any money in that game at all? A. No, sir. Q. You didn’t see anybody have any? A. No, sir.”

On cross-examination he was asked:

“Q. And you didn’t buy a dollar’s worth of chips from Wilson? A. No, sir.”

As a witness in his own behalf Wilson Phillips testified that he lives in Coalgate, on Broadway; that on the 5th day of March, this year, he was over at John Phillips, his father’s home. He then testified as follows:

“Q. Tell the jury just what happened? A. Well, sir, Lee came in and some chips were laying on the table and a deck of cards and Lee said, ‘let’s play some poker for pastime, and we were sitting there and Milton Brown and Ray came in and Ray Smith said ‘What does it cost to get in?’ and I said, ‘Nothing’ and he said ‘give me a hand’, and we fooled around there I guess 15 or 20 minutes and quit. He just reached over and got some of the chips that were laying there. There was not any money in the game at all ? A. No, sir. Q. Did Lee have any money? A. If he did I didn’t see it.”

John Phillips testified that he remembers the occasion of Milton Brown, Lee Pebworth, Ray Smith, and his son Wilson being at his home about the 5th day of March, this year, and saw them playing cards there; that he played a few hands himself, but there was not any game played for money.

The information was filed under section 2190 of the Penal Code, Okla. St. 1931, 21 Okla. St. Ann. § 941. Under this section, before there can be a conviction for conducting a gambling game played with cards, “for money, checks, credits, or any representatives of value,” it must be shown that the defendant opened up or conducted such a game, “or who either as owner or employee, whether for hire or not, deals for those engaged in any such game.”

While it is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon his trial for an offense. Benson v. State, 10 Okla. Cr. 16, 133 P. 271; Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914.

The defendant in this case is entitled to the same presumption of innocence which prevails in other cases, and we are constrained to say that the testimony quoted in full is insufficient to rebut that presumption. We are clearly of the opinion that the verdict is not sustained by sufficient evidence. Ferguson v. State, 52 Okla. Cr. 264, 4 P. 2d 696; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634; Noll v. State, 10 Okla. Cr. 157, 135 P. 287.

Because the verdict is contrary to the evidence, the judgment of the lower court is reversed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    JOHN KIZER v. STATE.
    No. A-9288.
    April 21, 1938.
    (78 P. 2d 831.)

      O. A. Brewer, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Ralph K. Jenner, Co. Atty., of Hugo, for the State.
   BAREFOOT, J.

The defendant, John Kizer, and his brother, Joe Kizer, were charged with the crime of murder. They were charged with killing Jordan Swink, on or about the 29th day of April, 1936. A severance was granted, and the defendant was placed upon trial, was convicted of manslaughter in the first degree and sentenced to serve a term of 25 years in the penitentiary, and has appealed.

The second assignment of error in this case is that defendant was deprived of a substantial right by being tried by a jury whose names were not drawn from the jury box, and who were summoned as talesmen by the sheriff of Choctaw county, whose name was indorsed on the information, and who was a material witness against him.

It is disclosed by the record that when the regular panel of jurors were impaneled for the October, 1936, term of court of Choctaw county, that by reason of a number of jurors being excused, the court considered it necessary to have 20 additional jurors. Forty-eight jurors were summoned and seven were excused. Instead of having the names drawn from the jury box, the court issued an order directing the sheriff of Choctaw county to summon 20 talesmen. When they reported they were sworn in as a part of the regular panel for the regular term. This was done over the objection and exception of defendant, and when his case was called for trial, he made a motion requesting the court to discharge the panel, and objected to being tried by the talesmen who were summoned by the sheriff. After exhausting the nine challenges allowed him by the law, eleven of the talesmen were called to the jury box, and of the jurors before whom he was tried, eleven of them were talesmen who had been summoned by the sheriff, whose name was indorsed on the information as a witness for the state, and who testified for the state in the trial of the case on rebuttal, but to facts which were very material in the trial of the case.

The question here raised is an important one, as it affects the procedure to be followed in the selection of jurors in this state. There is no more important feature in the trial of a case, both from the standpoint of the state and the defendant, than the selection of a fair and impartial jury. Our Legislature has written into the laws of this state just how jurors may be selected, and has placed around it every precaution to the end that a fair and impartial jury may be had to protect both the rights of the state and the defendant. A jury commission is appointed by the district judge, and after taking an oath to faithfully perform their duty, they select the names of citizens from the body of the county, all of whom are taxpayers of the county. 38 Okla. St. Ann. § 1 et seq. These names are placed in a box which is securely locked and from which, at the proper time, certain county officials draw the names for the purpose of securing the jury for a term of court. The law also provides that under certain circumstances, the district judge shall have the discretionary power to issue an order directing the sheriff “or some other suitable person” to summon tales-men or a special venire when certain conditions demand it. It should, however, be kept in mind that the real purpose of the law, and especially in the trial of criminal cases, is that all trials shall be by jurors whose names have been selected by the jury commission, and drawn in the regular manner from the jury box, and that the other mode of selection is an exception to the general rule, and only to be used when the facts warrant it, in the discretion of the district judge. This discretion should not be abused, for it will readily be seen that it may be used to the advantage or disadvantage either of the state or the defendant. Okla. Stat. 1931, § 2987, Okla. St. Ann. tit. 22, § 639, p. 356, provides :

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

The question here raised is not new in this state, and as we review the authorities it has been definitely settled by many decisions of this court. The question first came before the court in the case of Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, 844, Ann. Cas. 1916A, 689. In this case the regular panel drawn from the jury box was exhausted before the regular number of jurors had qualified on their voir dire, and the court issued an order-commanding the sheriff to summon 12 talesmen. The defendant objected to the sheriff, whose name was indorsed upon the information as a witness for the state, being permitted to summon the talesmen for the reason of his bias and prejudice against the defendant, which said motion was by the court overruled, and the defendant then demanded the right to examine the sheriff in support of the said motion which was by the court overruled. Before the jurors were sworn a challenge to the panel was made by the defendant. The challenge was disallowed. These various motions of the defendant were not controverted by the state. The court, in deciding this case, says:

“We think the court erred in overruling the motion to disqualify the sheriff, and in refusing to permit the sheriff to be sworn and examined in support of the motion and challenge to the panel, and in disallowing the challenge to the panel the court erred. Section 5848 (Rev. Laws 1910 [22 Okla. St. Ann. § 639]) Procedure Criminal, provides:
“ ‘When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.’
“The language of the statute is so plain that no room is left for interpretation. It authorizes a challenge to the panel on account of the bias of the officer who summons a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because he was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by him.
“If he would not be qualified as a juror because of actual or implied bias, as defined by sections 5858 and 5859 (Rev. Laws 1910 [22 Okla. St. Ann. §§ 659, 660]), he would also be disqualified for the same reason to summon a jury, in whole or in part, whose names are not drawn as jurors from the jury box.
“The precise question has been considered by the Supreme Court of Idaho, upon a similar statute, in the case of State v. Jordan, 19 Idaho 192, 112 P. 1049. Chief Justice Stewart, delivering the opinion of the court, used the following language:
“ ‘There is a very strong reason for the rule announced by the statute. _ The officer having the order for the special venire in serving the same would have power to exercise his judgment partially, and to summon jurors whom he might think would favor the prosecution, and thus return a jury wholly favorable to the prosecution, and it is because such power might be executed partially that the statute makes the fact that the officer is a witness for the prosecution a cause for challenge to the panel thus selected by him on the ground of implied bias. For this reason we think the court erred in denying the challenge to the jury panel.’
“And see, State v. Kent, 4 N. D. [577], 601, 62 N. W. 631, 27 L. R. A. 686.
“It is essential to the fair and impartial administration of justice, that an open or special venire shall be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice. Harjo v. U. S., 1 Okla. Cr. 590, 98 P. 1021, 20 L. R. A., N. S., 1013.”

This case has been followed in a later decision by this court, being Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 54, 16 A. L. R. 405. In this case the court exhausted the regular panel of jurors before the special venire of 40 men, summoned by the sheriff, had been sworn. (But in the case at bar the regular panel of jurors were not exhausted before the talesmen were called to the box, but their names were drawn along with the names of the regular panel.) The defendant interposed a motion to quash the special venire on two grounds: (1) Because said special venire was summoned by F. N. Smith, sheriff of Love county; the said F. N. Smith being a material witness for the state in said cause, and biased and prejudiced against defendant. (2) Because the said venire was not drawn from the body of the county. Counsel for the state, in its answer to said motion, admitted that F. N. Smith was sheriff of the county and was a witness for the state and did serve said process as alleged in said motion. Nine members of the special venire served by the sheriff became jurors and sat in the trial of the case. The court, after quoting from the case of Koontz v. State, supra, said:

“We think it not necessary to support with the citation of authority the proposition that, if a juror was called to serve in the trial of a criminal case, who was challenged by defendant upon the ground that he was a material witness for the state in the prosecution, whose name was indorsed upon the indictment or information, and that fact should be admitted by the county attorney, and the challenge to such a juror should be overruled, over the exception of defendant’s counsel, and said person should serve as a juror in the trial of the cause, the action of the trial court in overruling the challenge and permitting the said juror to serve under such circumstances would be clearly prejudicial to the substantial rights of defendant, and such action of the trial court would be reversible error, and not harmless in any cause where a substantial defense was interposed to the charge. It is absolutely inconsistent with the administration of justice that a jury composed of witnesses against a defendant can render a fair and impartial verdict. The impartiality of the jury goes to the very foundation of the accused’s liberty. Without an impartial jury, the accused cannot be accorded that fair trial guaranteed to him by the Constitution and laws of this state. It requires the unanimous consent of the jury to return a verdict in a felony cause, and if the trial court should permit a witness for the state to sit in the trial of one charged with a felony, there could, under such circumstances, be no fair and impartial trial, because an impartial jury is not had by 11 impartial men and 1 shown to be prejudiced against the defendant’s cause by reason of knowledge of material facts against him. It follows, therefore, that if a witness for the state may not serve as a juror, when challenged by defendant, such a witness, by reason of the statute above set out, cannot serve a special or open venire of jurors to serve in the trial of a criminal cause in which he is a witness, and that, when such fact is made to appear to the trial court upon a challenge to the panel of an open or special venire, it would be a denial of a statutory right and safeguard for the trial court to overrule such challenge.
. “It is apparent that in the service of an open or special venire the officer would have the power to exercise his judgment and discretion in the service and summoning of such jurors, and the fact that the officer might exercise such power to the detriment of defendant is a sufficient reason for the enactment of section 5848, supra. Under such statute, a witness for the state may not serve an open or special venire of jurors even though he be the sheriff of the county, and a special or open venire served by such a disqualified officer should be quashed upon proper motion. Likewise should a special or open venire served by a witness for defendant be quashed upon proper motion by the state. This has become the established practice in this jurisdiction since the rule was first announced in the case of Koontz v. State, supra; the opinion in that case having been published long prior to the time of the trial of this cause. The doctrine established in the Koontz Case has been adhered to in the recent case of Shepherd v. State, 17 Okla. Cr. 630, 192 P. 238, and in the opinion of this court, it is essential to the fair and impartial administration of justice that an open or special venire of jurors must be summoned by one who is not a witness against the party interposing the challenge to such a panel, and where a substantial defense is made to the charge, as was done in this case, it is reversible and prejudicial error to overrule a challenge by defendant to the panel of an open or special venire served by an officer or person who is a witness for the state.
“In this case it was admitted in the answer to the motion to quash the panel that the sheriff who served the same was a witness for the state, and the record shows that the said officer’s name was indorsed upon the information filed in this cause, and that he testified as a witness for the state, both in chief and in rebuttal. For the reasons stated, the trial court erred, to the substantial prejudice of defendant in this cause, in overruling defendant’s motion to quash the panel of the special venire of jurors served by the sheriff.”

These decisions have been followed by this court in the following cases: Leigh v. State, 34 Okla. Cr. 338, 246 P. 667; Sheppherd v. State, 35 Okla. Cr. 405, 192 P. 235; Welch v. State, 36 Okla. Cr. 298, 254 P. 503; Hammock v. State, 52 Okla. Cr. 429, 6 P. 2d 16.

The state, in its brief, does not cite any authority upon the questions of law raised by the defendant, but is content to quote the harmless error statute of this state, being Oklahoma Statutes 1931, § 3206, Okla. St. Ann. tit. 22, § 1068, which provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

This court, from its earliest history and decisions, has recognized and applied the harmless error doctrine, but it has been careful to state in those decisions that if a defendant has been properly indicted or informed against, and fairly tried, and the evidence clearly shows that he is guilty, then a conviction should not be set aside on account of any mere matter of form, or any exceptions which did not deprive the defendant of a substantial right, but it has always declared in those opinions that when the record revealed that a defendant has been deprived of a substantial right, then the error would not be harmless, and that while it was the duty of the court to adhere to the rule in proper cases, it was also its duty to see that in the application of the rule, we do not wipe out and destroy every constitutional and statutory right of the defendant on trial, and therefore establish a rule which would result in “arbitrary punishment in the name of the law; a consummation dangerous to liberty and innocence, and utterly inconsistent with the perpetuity of our free institutions.” Scribner v. State, 3 Okla. Cr. 601, 108 P. 422, 428, 35 L. R. A., N. S., 985; Dupree v. State, 10 Okla. Cr. 65, 134 P. 86; Hager v. State, 10 Okla. Cr. 9, 133 P. 263; Watson v. State, 7 Okla. Cr. 590, 124 P. 1101.

While the record in this case may not reveal it, who can say that this defendant was not deprived of a substantial “statutory” right. The statute provides that a jury should be drawn from the jury box which contains names selected by the jury commission from the body of the county. There are many qualifications provided by the statute. It is required that the names be taken from the tax list thus securing the most substantial citizens of the county for the trial of criminal cases. The defendant had the right to expect that if he was charged with crime, he would be tried by a jury selected in the manner provided by law. These safeguards were enacted for the very purpose of correcting evils which had heretofore existed in our jury system in the selection of jurors, yet at the very outset of this case the court, when he found that he needed 20 additional jurors to serve on the regular panel for the October term of his court, instead of drawing them from the jury box which had been prepared and selected for that purpose, issued an order for the sheriff to summon 20 talesmen. Under the law, the court in its discretion has the power to order tales-men or an open venire in the sound discretion of the court, but we do not believe it was the intention of the Legislature, when it enacted this statute, that the court should use it in such a manner as to nullify its very terms. In the instant case when the court found that he was in need of 20 additional jurors, he should have ordered the sheriff and the court clerk to draw the names from the jury box, and with the means of travel and service now in existence, these jurors could have reported in a very short time. The record reveals that the court had present about 40 regular jurors, and with this number present, the business of the court could have been promptly dispatched until service was made upon the others regularly drawn. The record further reveals that all of those who were on the regular panel were not called and examined until the talesmen were called to the jury box in this case; they being jurors who were summoned by an officer whose name was indorsed on the information as a material witness for the state, and who testified in the case. This is contrary to the holdings of this court in the many cases heretofore cited. We do not think that the statement made by the trial court into the record, that they were summoned by the sheriff from a different part of the county than that in which the defendant lived, is a sufficient answer to this important question. The court gave as a further reason that the sheriff had no idea in anyway of knowing that these talesmen would be retained by the court, and for the further reason that the sheriff might have to serve subpoenas and select talesmen in any case where he might be used as a witness. A sufficient answer to this reasoning is that the sheriff knew when he summoned them that they would in all probability be retained as jurors. The fact that the sheriff might have to serve subpoenas and select talesmen in any case where he might be used as a witness does not nullify the statute nor the reason for the rule that he should not be permitted to do so where he is a material witness in the case. The reason for the rule is stated in the opinions of this court heretofore cited. If the procedure heretofore suggested in the case at bar, and the 20 additional jurors’ names had been drawn from the jury box, they would have been served by the sheriff, and he or his deputies would have been paid their mileage for their services. It is an entirely different question in permitting him' to summon the jurors who have been regularly selected from the jury box, and giving him the right to summon those of his own choosing. We recognize the right of the district court in its discretion, under the law, to order the selection of talesmen and an open venire; but under the facts in this case we think the court erred in filling the regular jury panel with talesmen instead of having their names drawn from the jury box in the manner provided by law.

From the above finding it becomes unnecessary to review the evidence offered, or to pass upon the other assignments of error, as they will not occur in a retrial of this case.

The judgment of the district court of Choctaw county is, therefore, reversed.

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


author: PER CURIAM.

text:
    JOHN BINNS v. STATE.
    No. A-9296.
    April 21, 1938.
    (78 P. 2d 837.)
    Ernest R. Brown, of Pryor, and E. H. Beauchamp, of Grove, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

John Binns, the defendant in the trial court, was by information charged with the crime of murder, by beating Norman Sager with a dangerous weapon; was tried, convicted of manslaughter in the first degree, and sentenced to be imprisoned in the state penitentiary for a term of five years. The record was properly saved, and the defendant John Binns has appealed to this court.

The state to maintain its allegations called Leona Hen-dren, who in substance stated she lived about 14 miles southeast of Jay, on Spavinaw creek, in Delaware county, Okla.

“On the 22nd day of October, 1932,1 was keeping house and taking care of Carl Reeser’s children; during the afternoon and evening Norman Sager and Jesse Hanna was at the Reeser home; the Reeser children and my brother Blue Hen-dren were also there. Norman Sager and Jesse Hanna came in about 4 o’clock in the afternoon.
“John Binns came to the Reeser home about 9 o’clock that night; when John Binns came Norman Sager was there but Jesse Hanna had gone to town to a dance. Jim Kelly came with John Binns to the Reeser home. I had written John Binns a letter that week telling him to come over Saturday night. I had only gone with Norman Sager once after John Binns and I had busted up. I and Alice and Norman Sager and Jesse Hanna were talking about going to the dance. Alice and Jesse Hanna went to the dance and came back after a while to stay with the children until we went over. Norman Sager decided he would stay until John came; a short while after Alice went to the dance she came back to the house and told me John was down at the dance.
“I advised Norman Sager that John Binns would be there after me, and he replied, ‘Let him come, I will take care of him,’ that he wasn’t running from anybody. Alice started back to the dance and about that time a car drove up, and Alice told me John was in the car; John came to the porch and saw Norman sitting there and asked Alice to tell me to come out there, he wanted to tell me something, and I told Alice to tell him to wait a minute, and he replied, ‘Come on, now.’ I told him we had quit anyway and if he was in such a hurry to go ahead.
“In a few minutes Tobe came and asked me if we had a tire pump, that John wanted to borrow it, and I replied that it was out in the car; he got the pump for John, and John came in and told me he had a letter he wanted me to read; I took the letter and went up to the dresser, John was standing behind me; I do not know whether he had the pump in his hand at the time or not. He got me by the hand to go into the kitchen, he wanted to talk to me and we went on back. Norman was sitting on the foot of the bed when John struck him with the pump. John said, ‘Hello, Norman, how are you?’ and Norman said, ‘Just fine, how are you.’
“John and I came into the room from the west and Sager’s back was to us; when we came into, the room Sager was just sitting up with his arms in front of him (indicating) ; nothing further was said after we came in from the kitchen between the deceased and John Binns. I could not say how many licks John hit Norman with the tire pump, it was more than one I am sure; I grabbed hold of John and asked him what he meant, and he ran over there in the kitchen and went out of the kitchen door, running as he left. The tire pump was a heavy pump; I don’t know whether I would know it or not. I put three marks, these three X marks, like this on the pump. I would identify this as being the pump. John Binns gave this pump to me about three months before this trouble.
“I did not see the defendant any more that night; after the licks were struck I got a pan of water and commenced bathing Norman Sager, he was rolling on the bed; when I was bathing him I said, ‘Norman, are you hurt ?’ but he never did answer me. I did not see the wounds but there was blood running down his face and out of his ear. The wounds were on his head. I sent Blue Hendren, Rose and Tobe Reeser after Alice Reeser, and the Doctor, and also the law. Norman Sager’s mother and brother came and got him and took him to the hospital at Miami. I did not go to the hospital. When the licks were struck Jim Kelly, Blue Hendren, Tobe and Rose Reeser and some other children were in the room.”

On cross-examination witness stated:

“Jim Kelly was sitting over on the east side of the room in front of the door in the north end of the south room; Kelly was drunk at the time; when I came in from the kitchen I saw the deceased, Jim Kelly and John Binns; I kinda fussed with John for bringing Kelly with him and he said he would take him home. The next morning when I swept I found a knife and an iron, the iron was a long car spring like. The knife was kinda back under the foot of the bed. I don’t know whether I would recognize the knife or not. The knife was open when I found it; I gave the knife to my sister Beulah Starr.
“No one had been in the house that night excepting the family and myself. That night when I was setting supper Norman was in the kitchen and I wanted to open a can of condensed cream, and Norman pulled out his knife and opened it and handed it to me. All I can say I know he used it to open the can, it was a black handled knife. I did not pay much attention to it.
“The defendant John Binns and I have been friends for some time but had been at outs for about three weeks; I had gone with Norman Sager once in the meantime. I had gone with Binns before our falling out for about 13 months. He had visited me often. I saw Binns on Sunday before this difficulty and had a conversation with him. It was about 5 o’clock in the afternoon when I told Mr. Sager that John Binns was coming that night; I told him I had written John and was looking for him to come down that afternoon or evening. I do not remember that John ever left the house from the time he came in until he left after the trouble.”

Dr. M. M. DeArman, of the Baptist Hospital, at Miami, testified to the official records of the hospital, which show that Norman Sager died at 11:40 a. m. Wednesday — October, 1932.

Mrs. J. D. Sager, the mother of Norman Sager, testified that on the 22nd day of October, she lived about 12 or 14 miles west of Jay, off highway No. 29; on that date she had three children, Ray, Norman, and Leonard Sager:

“On the 22nd day of October, 1932,1 went to Southwest City, Mo., and Norman came back with me as far as Jay and stopped there. The next time I saw him was about 11 or 12 o’clock that night at Mr. Reeser’s house in Jay. I know Leona Hendren, she was at the house where Norman was when I arrived.
“When I arrived at Reeser’s home Norman was lying as though he was sleeping; I went in and called him and he did not answer; his brother Ray shook him and he did not answer; he had wounds on his head and his ear was bleeding; the wounds were bleeding a little and blood was coming out of his ear quite a bit; we removed him to the hospital at Miami about 3 o’clock Sunday morning; he stayed there until about 11 o’clock on Wednesday morning; during all this time he was unconscious; he was in a raving condition, did not know anyone, we had to hold him all the time; he did not know me. About 11 o’clock Wednesday morning he passed away at the hospital.”

Leona Hendren and several other witnesses testify as to the defendant being at the Reeser home, and also that the deceased was there. All of the witnesses testify in substance as did Leona Hendren.

The defendant, John Binns, testifying in his own behalf stated:

“I live four miles west of Gentry, Ark.; on October 22, 1932, I was 19 years old; I know Leona Hendren; have known her practically all my life; had been keeping company with her about 18 months. I saw her on Sunday before the 22nd of October, 1932; I know Lafe and Beulah Starr; I was at their home the week before this trouble I think.
“Norman Sager had some conversation with me as I started in on the porch of the kitchen; he was standing near Lafe Starr, cursing and telling what he was going to do; I went on past them and into the front room where the women were. Lafe told him he was not going to have any trouble there; he got Joe Duncan and Mr. Patterson to take him off. This was about two weeks before the trouble.
“I saw Mrs. Starr subsequent to that; she said Norman Sager told her that inside of three weeks she would hear of Norman Sager killing me. I arrived at the Carl Reeser home about 9 o’clock in the evening; I did not have a weapon of any kind; I got out and went into the house. Leona Hendren, Norman Sager and the children were there; as I went in I called Leona into the kitchen, and while I was there talking to Leona, Blue Hendren told me Norman went and got the iron, which I saw him get; Tobe Reeser told me the same thing; the iron he got was a car spring; I saw he had a pocket knife; I talked with Leona a few minutes, she said Norman was mad, and had told her he would take care of that s-o-b-; she told me to get Jim Kelly and leave and save having any trouble, and I told her I would. As I went in to get Jim Kelly, Leona was in front of me and Norman Sager; Sager raised up and struck at me with his pocket knife; I hit him twice with the tire pump. I did not use any more force than was apparently necessary to defend myself. I told Jim Kelly to come on and Jim went out ahead. I did not see Norman Sager any more.
“This is the first time I have ever been arrested for any trouble. The tire pump belonged to my father, Miss Hendren knew that; I did not tell anyone I had a flat; the only time I hit him we were standing face to face. I never made a statement to anyone that I would do any violence to Norman Sager. Norman was standing when I hit him; as Leona walked round him, where he was sitting on the bed, he raised up with his pocket knife facing me, and he said T will kill the s-o-b.’ He tried to step back and I hit him with the pump.”

On cross-examination defendant stated:

“When I come in the house I told 'Norman Sager hello, and asked him how he was; he said, ‘All right.’ He was up off the bed before I came in from the kitchen to the room where he was; I could see him; I don’t remember talking to Jim Kelly; there were several children in the room and around the house; the licks I struck Sager took effect in the left side of his head; I don’t remember that Leona grabbed my arm. Sager had the knife in his right hand when he got up and was kindly facing northeast; I was close enough for him to reach me with his knife and I hit him with the pump; he was probably 18 inches from the bed at the time. I hit right handed and he went back toward the bed and wall. I was at the foot of the bed. When I hit him the first time I did not stop him, he kept coming on, then I hit him again; he had a knife; he did not have the iron in his hand when I hit him. When I left the house I went east up through the woods, I was driving slow, after I had the wreck and the other car came up I walked away.”

Alice Dunham testified in behalf of the defendant as to the statements made by Norman Sager at the Reeser home when Leona tried to get him to leave, in which she says Norman Sager stated, “Let the s-o-b come I will take care of him, if that is the way he feels about it.” Leona had tried to get Norman to leave the Reeser home.

Other witnesses testified in behalf of the defendant and to different facts surrounding the visiting of the parties and leading up to the killing, which it is not deemed necessary to set out in detail. The foregoing is the substance of the testimony deemed necessary to set out and the fact the defendant has not deemed it necessary to file a brief in support of his assignment of errors.

Eight errors have been assigned by the defendant which he alleges are sufficient to reverse his case. The only error this court will consider will be the first assignment, which is as follows: “Said court erred in overruling the motion of the plaintiff in error for a new trial.”

The record has been carefully read and examined, and discloses a sad condition of affairs in which one citizen of the county takes the life of another at the home of a neighbor and friend. It is undenied by the defendant that he inflicted the wounds upon the head of Norman Sager, the deceased, with a tire pump, from the effects of said wounds Norman Sager died. The defendant insists the. deceased struck at him with a knife when he hit him with the pump, and that the deceased also had a broken ear spring in the corner near where he was sitting.

The fact that the defendant left and was not taken into custody for some time after the killing is immaterial so far as the record in this case shows. When the defendant took the stand in his own behalf, he admitted the part he had taken in the fight which resulted in the death of Norman Sager.

The record has been carefully examined-; no brief has been filed in support of his assignment of errors; and there is nothing in the record to show that the court committed error in overruling the defendant’s motion for a new trial. There was no appearance made for oral argument when the case was assigned for hearing.

An examination of the record discloses no jurisdictional or fundamental errors. The defendant was accorded a fair and impartial trial. The instructions of the court correctly advised the jury as to the law applicable to the facts in the case. The evidence is sufficient to sustain the judgment.

The judgment of the trial court is affirmed.


author: BABEFOOT, J.

text:
    MELVIN PHELPS v. STATE.
    No. A-9298.
    April 29, 1938.
    (78 P. 2d 1068.)

      Billingsley & Kennerly and Hill & Hill, all of Wewoka, for plaintiff in error.
    Mac Q. Wiliamson, Atty. Gen., Tom Finney, Asst. Atty. Gen., and Tom Huser, Co. Atty., of Wewoka, for the State.
   BABEFOOT, J.

An information was filed in the district court of Seminole county charging the defendant with the crime of murder. He was tried, convicted, and sentenced to serve a term of seven years in the penitentiary, and has appealed.

The first two assignments of error were: (a) That the court erred in refusing to sustain a demurrer to the evidence; and (b) that the evidence was insufficient to sustain the verdict.

The evidence revealed that on the 17th day of May, 1936, the deceased, Burford White, about 12:30 or 1 o’clock in the morning, came to the home of Anna Mae Horton, who lived about a mile west of Wewoka. He remained there about ten minutes and left. He had been keeping company with Anna Mae Horton. He had returned to her home about 1:30 or 2 o’clock a. m. Had been in the kitchen and was preparing to leave when the defendant, Melvin Phelps, and his companion, Bill Downing, came to the porch and hollered and wanted something to drink.

Anna Mae Horton testified that she told them she did not have anything to drink; that they wanted to come in and talk a while; she told them she did not want to get up and it was too late. She heard Bill Downing say to defendant, “I guess you are needing a drink after using that blackjack like you were over there a while ago,” and the defendant answered, “Yes.” That just at this time deceased, Burford White, who had been in the kitchen, came around the house on the outside, and stepped upon the porch where defendant and Bill Downing were at that time. Witness had gotten up and came to the door which was facing the east, standing inside the screen door. She testified that she asked the boys to go and get in their car and leave, and they would not do it, and she asked Burford to come in the house, and he said, “You go in there and I will be in in a minute,” and then Bill Downing hit Burford. She saw something black in his hand, but she could not tell what it was. It was the theory of the state that he was hit by a blackjack, which was afterwards found by one of the officers on the ground at the scene of the difficulty. She further testified that just at this time “they all three went together there and went to fighting.”

“Did you see Melvin Phelps standing on the porch when Bill Downing struck Burford? A. Yes, sir. Q. What did Melvin do when Bill Downing struck Burford? A. He just jumped on Burford too and they kinda fell off the porch together.”

In the fight which ensued both defendant and deceased were severely cut. The deceased had 18 cuts on his body, and the back of his head was bruised. From the wounds received the deceased died while being taken to the doctor’s office in the city of Wewoka.

The undertaker, testifying as to the wounds on the body of deceased, said:

“Q. Where were the cut places on the body, Mr. McConnell? A. Well, there were about five or six underneath the left arm, one severe cut underneath the ear to the middle of the throat, about eight inches long; one cut about ten inches long on the left thigh; about four or five cuts on the small of the back, and of course, there was one cut on the stomach. Q. You say there were 18 cut places in all? A. About 18, yes. Q. Were there any wounds in the abdomen or stomach? A. There was one. Q. Can you describe to the jury on your own body where that wound was? A. On the left side, ranging downward, about ten inches, which exposed the intestines. Q. How deep was that wound, if you know? A. It was deep enough for the intestines to come out. Q. How many of those wounds would you say were fatal wounds, Mr. McConnell? A. Oh, approximately three or four. Q. Mr. McConnell, from your examination, could you tell what caused those cut places or wounds? A. Well, they were caused by a knife. Q. Can you tell, as to the bruises, as to what caused them? A. Well, they could have been caused either by fists or some blunt instrument. Q. Could a blackjack have caused those bruises, Mr. McConnell? A. Could have.”

Alberta Harrison, for the state, testified that she was a sister-in-law of Anna Mae Horton, and was staying at the home of her sister-in-law, with two small children, on the night of the difficulty, and was in bed in the southwest room adjoining the porch where the difficulty was had. She corroborated the testimony of Anna Mae Horton in full. Upon hearing the controversy she arose from her bed and went to the door where Anna Mae Horton was standing; she saw the parties just as Anna Mae Horton had seen them. She testified as follows:

“Q. What did you hear next ? A. Anna Mae, she started hollering and going on. She called me and I heard scuffling like and whenever she called me, I jumped up then and ran to the door and at the time them men was off the porch. They were standing off to one side. Q. What were they doing, if you know? A. Well, I guess they were fighting, but they were just standing grabbed in each others arms, and one of them had his arm raised above his head with something in his hand. Q. Did you know what that was in his hand? A. I couldn’t tell. Q. What was Anna Mae doing? A. She was pushing Mr. Downing away from the other two men. Q. Pushing this other man away? A. Yes, sir. Q. Now, could you tell who the two men were that were locked together there off the porch ? A. Well, it was Burford and Mr. Phelps. Q. Melvin Phelps, the defendant here? A. Yes, sir. Q. You went back and put your shoes on, I believe? A. Yes, sir; I did. Q. When you went back, did you go back on the porch? A. Yes, sir. Q. Did you see these men when you got back on the porch? A. Yes, sir. Q. Where were they then? A. Anna Mae still had Mr. Downing pushed away and she was standing there hollering and Mr. Phelps and Burford were on the ground fighting. They were lying down. Q. Did you see them fight or scuffle there on the ground? A. Yes. Q. How long did that fight or scuffle take place, if you know? A. About three to five minutes.”

She further testified to the fact of the officer finding a blackjack with the handle torn off, a small pocket knife, a sack of Bull Durham smoking tobacco, and a black hat with blood in the crown, at the scene of the difficulty.

Allen Whitworth, a deputy sheriff, testified to seeing and talking to the defendant at the doctor’s office, and at the county attorney’s office. He testified that he admitted fighting with the deceased, who he claimed struck him, and that he cut the deceased; that he examined the premises early the next morning; that defendant had several cut places on his face and body, but none of them were serious.

“Q. Just tell what was said? A. He said that they had a fight out there and that he had cut Burford White. He admitted taking part in the fight and told how White had hit him and knocked him back against the porch and they went together on the ground and how they fought.”

The above constituted the direct evidence of the state. A reading of the same clearly shows that the court did not err in overruling the demurrer to the evidence of the defendant. Defendant cites the case of Jones v. State, 20 Okla. Cr. 233, 202 P. 187, as upholding his contention. A careful reading of that case reveals an altogether different state of facts than is shown in the case at bar. While the court holds that where the homicide is admitted and proved there is no shifting of the burden of proof where the circumstances as proven on the part of the state reasonably tend to show that the fatal acts may have been done in self-defense, the court announces the law to be that even though the evidence on the part of the state may not be convincing, if there is any substantial evidence tending to prove the guilt of the accused, the question is properly for the jury, and a demurrer to the evidence, under such circumstances, is properly overruled. A reading of the Jones Case, supra, will reveal a very different state of facts than the case at bar. Fixico v. State, 39 Okla. Cr. 95, 263 P. 171; Hunt v. State, 29 Okla. Cr. 255, 233 P. 506; Whisenhunt v. State, 40 Okla. Cr. 50, 266 P. 792.

The defendant, testifying in his own behalf, corroborated the state’s witnesses as to being at the home of Anna Mae Horton with Bill Downing on the night of the difficulty; that he went there for the purpose of buying a half pint of whisky. He testified that when Anna Mae Horton informed him that she did not have any whisky, she said: “You’d better go; Burford is here drunk and you will have trouble.” He then testified that Burford, who had come around the house on to the porch where he was standing, said, “What in hell are you sons-of-bitches doing here,” and he said: “Nothing, Burford, just talking a little bit,” and he says, “If you have got any talking to do, talk to me”; that when he said this Anna Mae jumped to the door and grabbed his hand and said, “Don’t do that Burford, don’t do that”; and he told her to go back in the house and he would be in there in a minute; that about this time Bur-ford raised his hand and Bill Downing hit him with his fist and the fight started; that he tried to separate them and pushed deceased back, and that the deceased struck him in the head with a knife; that deceased cut both him and Bill Downing; that Burford White was a man who weighed 175 or 180 pounds; that he was drunk and that he knew he was a dangerous man; and that anything he did was in self-defense, believing that he was in danger of great bodily harm at the time.

Bill Downing testified in the case, but nothing in reference to matters surrounding the difficulty, only to one question of minor importance.

Several witnesses testified to the quarrelsome nature of the deceased while drinking, and several witnesses testified that he was drunk on the night of the difficulty.

On cross-examination the defendant testified that he had taken two drinks of whisky and two bottles of 3.2 beer just prior to the difficulty, and also testified to going with Bill Downing to several Choctaw beer joints and drinking Choctaw beer at different times, and also to having trouble with a negro and knocking him down with his fist. This was just prior to the time that they went to the home of Anna Mae Horton. Under this statement, and taking into consideration all of the evidence in the case, we do not think the court erred in refusing to instruct the jury to return a verdict of not guilty in this case.

The third assignment of error is:

“The killing with a knife being admitted, and the question of self-defense having been raised; it was reversible error to permit the state to prove that the defendant, some three or four hours before the fatal difficulty, assaulted W. S. Chain at another place with a blackjack; and was looking for negro women.”

This assignment has reference to the evidence of a witness who was placed upon the stand on rebuttal by the state. An information was filed jointly against the defendant and Bill Downing. It was the state’s theory that the difficulty was brought about by Bill Downing making an assault upon the deceased, and that he struck him with a blackjack. There was evidence to substantiate this, and a blackjack was found by the officers near the scene of the difficulty. The defendant denied either of said parties had a blackjack, and we do not think that under these circumstances it was error to permit the state to prove that a few hours prior to the fatal difficulty, that defendant had struck another with an instrument of the same general character claimed to have been used at the time of the difficulty. This witness also testified that defendant asked him, “Did you know where any girls are?” This evidence was given in detailing the circumstances under which the witness claimed to have seen the defendants just prior to the difficulty, and while it had nothing to do with the case, it is not such a statement as, in our opinion, causes prejudicial error. It is not at all probable that it would have had any weight with the jury in determining the guilt or innocence of the defendant. The record also fails to show where defendant saved any exceptions to the introduction of this evidence, nor was any motion made by defendant to strike the same from the record. Keeler v. State, 24 Okla. Cr. 206, 217 P. 228; McCollum v. State, 57 Okla. Cr. 381, 48 P. 2d 872; Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467; Williams v. State, 4 Okla. Cr. 523, 114 P. 1114; Tallon v. State, 22 Okla. Cr. 89, 210 P. 309.

The fourth assignment of error was:

“It was reversible error to exclude the evidence of the witness, David Wells, that the deceased, some 50 minutes before the fatal difficulty, on the road to the place where the difficulty occurred, was drunk; and said that he was drunk, and that he was after some son-of-a-bitch, and that hell would be popping pretty soon.”

A sufficient answer to this assignment of error that deceased was drunk would be that this evidence, if admitted, would only be cumulative. Graham v. State, 25 Okla. Cr. 372, 220 P. 967; Addington v. State, 8 Okla. Cr. 703, 130 P. 311. Not only several witnesses for the defendant testified that deceased had been drinking and others that he was drunk, but the chief witness for the state, Anna Mae Horton, testified:

“Q. The first time Burford came out was he drinking or intoxicated ? A. He was drinking some. Q. He was drinking some? A. Yes, sir.”

In the case of Rogers v. State, 8 Okla. Cr. 226, 127 P. 365, cited by defendant in error, it is shown that at the time of making the threats the deceased called Rogers by name and that they were clearly directed toward and against Rogers. The same is true in the case of Burroughs v. U. S., 6 Ind. T. 164, 90 S. W. 8. In the case at bar, the threat, and it could hardly be termed a threat, was made by deceased prior to the time he had gone to the home of Anna Mae Horton, and according to the testimony of the defendant himself, he at that time had no reason to know that he would meet or see the defendant. There is nothing in the record to show that this threat, if made, was directed to the defendant or Bill Downing, and was clearly inadmissible. The general rule is announced by Wharton on Homicide, 3d Ed., § 253, p. 415:

“Vague, indefinite threats of the deceased, not mentioning the accused, nor shown to have reference to him, are inadmissible in evidence in a prosecution for homicide upon the question of self-defense. And threats made by the deceased against one person are not admissible in evidence in a prosecution against another person for killing him.” Wireman v. Commonwealth, 206 Ky. 828, 268 S. W. 586.

The fifth assignment of error is that the court erred in giving to the jury an instruction on mutual combat. There is no complaint that the instruction did not properly state the law as to mutual combat, and therefore it is unnecessary to quote it. We have examined the instruction, and in our opinion it is in proper form and was justifiable under the facts in this case. Wharton on Homicide, p. 538, § 334, in stating what constitutes mutual combat, says:

“One who enters willingly into a combat and fights willingly, not for his own protection, but to gratify his passion by inflicting injury upon his adversary, engages in a mutual combat, which will prevent him from invoking the doctrine of self-defense.”

The evidence of the defendant himself was that when his companion struck the deceased that the fight began and that he entered, voluntarily and willingly. The evidence on the part of the state was to the same effect. Under this evidence the court was justified in giving this charge. But the court also instructed the jury upon the law of self-defense, and in this charge the defendant was given every protection afforded him under the law. So if the defendant at any time, either before entering the difficulty, or after entering the same, acted in self-defense, the jury were given the opportunity under a fair instruction to so find. Wharton on Homicide, p. 269, § 171, says:

“If two persons fight and a friend of one of them comes in and takes part against the other and kills him, however, it is only manslaughter in the slayer, where he acted from passion aroused by the fight, and not from malice, though there may have been malice between the original parties.”

Under the evidence in this case, we find no error in the instruction upon mutual combat.

The sixth assignment of error is:

“It was reversible error to refuse to give the defendant’s requested instruction on the evidence as to who was the aggressor:
“ ‘Gentlemen of the Jury, you are instructed that should you believe or find from the evidence, or have a reasonable doubt thereof, that the defendant, Melvin Phelps, sought to separate Bill Downing and the deceased while they were fighting, and that he did not strike the deceased first, then Melvin Phelps would not be the aggressor,’ arising from the 11th assignment of error.”

Under this contention defendant cites the cases of Brock v. State, 6 Okla. Cr. 23, 115 P. 1026, and Smith v. State, 51 Okla. Cr. 292, 1 P. 2d 814. We have read these cases and we do not think they sustain this contention. The facts in those cases are entirely different from the facts in the case at bar. Defendant contends that by reason of the court giving instruction No. 21, that it was error to fail to give the requested instruction heretofore quoted. Instruction No. 21 simply told the jury if they entertained a reasonable doubt as to whether the defendant was guilty of murder they should next inquire as to whether he was guilty of manslaughter in the first degree, which was followed by a proper charge upon manslaughter in the first degree. We fail to see how this charge could have prejudiced the rights of the defendant, and it is conceded in the brief of the state that it is the duty of the court to instruct upon the defendant’s theory of the case, and this rule has been upheld by this court from its earliest days. Payton v. State, 4 Okla. Cr. 316, 111 P. 666; McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735; Crittenden v. State, 13 Okla. Cr. 351, 164 P. 675; Davis v. State, 20 Okla. Cr. 203, 201 P. 1001; Miles v. State, 41 Okla. Cr. 283, 273 P. 284; Johnson v. State, 59 Okla. Cr. 283, 58 P. 2d 156.

In the case at bar, the defendant’s theory was that he acted in self-defense, and the court gave an elaborate instruction covering the law of self-defense, and defendant was protected in every way and given every instruction to which he was entitled. But it was not necessary for the court, after giving instructions covering his theory, to particularize defendant’s evidence, as was suggested by the requested instruction above quoted. The court did not in its instructions at any time attempt to limit the defendant’s right of self-defense on the theory that the defendant was the aggressor. The jury, after a careful consideration of the case, found the defendant guilty, and left his punishment to the court, who sentenced him to seven years in the penitentiary. He has been ably represented in this court. The briefs of both the state and defendant have been well prepared. We find no error in this record which justifies a reversal of this case, and the judgment of the district court of Seminole county is therefore affirmed.

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


author: DAVENPORT, P. J.

text:
    H. H. PIERCE v. STATE.
    No. A-9363.
    April 29, 1938.
    (78 P. 2d 1073.)
    John W. Whipple, of Stillwater, for plaintiff in error,

      Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, H. H. Pierce, was convicted upon an information charging the possession of 85 pints of spirituous liquor, being charged as a second offense, and in accordance with the verdict of the jury was sentenced to be confined in the state penitentiary for a term of 2 years and to pay a fine of $200.

At the beginning of the trial counsel for the defendant and the state stipulated that the defendant had heretofore been tried and convicted in the county court of Payne county, on the 23d day of December, 1932, for the crime of the possession of 12 gallons of whisky, and had served his sentence in the Payne county jail and paid a fine.

The undisputed facts are that the deputy sheriffs W. K. Belknap and George Harlson went to the residence of the defendant, about a quarter or half'mile north of the city of Cushing, Okla., armed with a search warrant, and searched the home of the defendant, and found in the attic about 85 pints of whisky.

At the close of the testimony on the part of the state, counsel for the defendant interposed a demurrer thereto, and moved the court to direct the jury to return a verdict of not guilty, which demurrer and motion was overruled and exceptions duly saved.

Eleven errors have been assigned by the defendant. The motion of the defendant for a new trial and in arrest of judgment embrace all the other errors assigned and they will be considered jointly.

The court did not err in its instructions nor does the defendant in his argument urge there are any errors in the court’s instructions sufficient to warrant a reversal of his case. The testimony is uncontradicted that the officers went to the defendant’s home with a search warrant and searched the same and found in the attic of his house 85 pints of different brands of whisky. No testimony was offered on the part of the defendant to contradict the state’s testimony. The quantity of whisky found in the possession of the defendant is sufficient to make a prima facie case of intent to barter, sell, give away, and otherwise furnish to others, in the absence of any testimony on the part of the defendant to contradict the testimony of the state.

The term “prima facie evidence” as used in the statute, 37 Okla. St. Ann. § 82, is that degree of proof which unexplained or uncontradicted is sufficient in the absence of evidence to the contrary to establish unlawful intent if it be credited by the jury. Hargis, Jr., v. State, 33 Okla. Cr. 283, 243 P. 986; Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671.

It is apparent from the quantity of whisky found in the defendant’s possession that he had it for the purpose of bartering, selling, giving away, or otherwise furnishing to others. The evidence shows that on the 23d day of December, 1932, this defendant was convicted of the crime of possession of whisky and sentenced to pay a fine of $50 and serve 30 days in jail, which fine was paid and the defendant served the jail sentence.

There is no evidence showing that from the time of the first sentence up to this time the defendant had been engaged in the whisky business.

The defendant complains that the county attorney in his closing argument made an improper statement to the jury when he stated, “He heard a statement of the officers this morning that the defendant was selling this liquor to 18 and 19 year old boys and girls”; which statement of the county attorney was objected to by the defendant, and the court replied, “Yes, gentlemen of the jury, you will disregard any statements in the arguments of the attorneys unless the same is based upon the evidence or is a fair inference from the evidence.”

The statement made by the county attorney was improper and outside of the record, and there is nothing in the testimony in the record to justify the county attorney in making the statement shown by the record to have been made by him, and the court did not advise the jury that the statement of the county attorney was improper and order the jury to disregard any statements in the argument of the county attorney unless the same is based upon the evidence or is a fair inference from the evidence.

This statement of the court was probably interpreted by the jury that the statement made by the county attorney was a proper statement in his argument notwithstanding there is no evidence in the record warranting the county attorney to make such a statement, and the court should have specifically advised the jury that it should pay no attention to that part of the county attorney’s argument. However, considering the evidence, we do not feel the statement of the county attorney is sufficient to warrant a reversal, but it did in all probability cause the jury to impose a greater punishment upon the defendant than it otherwise would have done.

The evidence is sufficient to sustain a verdict. After a careful consideration of the record in this case and the statement made by the county attorney we feel that the jury fixed an excessive punishment for the offense the defendant was charged with, and that the ends of justice will be properly met by a modification of the sentence from two years in the state penitentiary and a fine of $200, to 1 year in the penitentiary and a $100 fine, and, as modified, the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J.

text:
    ROBERT RIGGS v. STATE.
    No. A-9355.
    April 29, 1938.
    (78 P. 2d 1075.)
    D. H. Wilson and Perry Porter, both of Miami, for plaintiff in error.
   DOYLE, J.

The information in this case charged that Robert Riggs did in Ottawa county, on or about the 13th of February, 1937, have possession of intoxicating liquor with the unlawful intent to transport, sell or otherwise furnish the same to others. The jury returned a verdict finding him guilty as charged in the information, fixing his punishment at six months in the county jail and a fine of $500.

To reverse the judgment rendered on the verdict, April 17, 1937, he prosecutes this appeal.

The errors relied on for reversal are: Error in overruling motion to suppress the evidence; error in overruling defendant’s demurrer to the evidence, on the ground that the same was obtained under an unreasonable search and seizure; and error in overruling defendant’s challenge to certain jurors.

This conviction rests upon evidence obtained by means of a search and seizure under a John Doe search warrant issued upon an affidavit reciting that affiant:

“Has probable cause to believe and does believe that intoxicating liquors are being unlawfully kept, stored upon the following described premises.”

The search warrant was addressed as follows:

“To any sheriff, Constable, Marshal, or Policeman in this state.”

By numerous decisions of this court, it is held that an affidavit or complaint for a search warrant, made upon information and belief, is invalid, and a search and seizure made upon a search warrant issued upon it is illegal. Garrett v. State, 40 Okla. Cr. 195, 267 P. 683; Sprinkle v. State, 36 Okla. Cr. 36, 251 P. 614; Hancock v. State, 35 Okla. Cr. 96, 248 P. 1115; Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106; Hall v. State, 34 Okla. Cr. 334, 246 P. 642; Magin v. State, 25 Okla. Cr. 361, 220 P. 666.

In Bishop v. State, 47 Okla. Cr. 249, 288 P. 363, this court held:

“A search warrant is process within the meaning of article 7, § 19, and section 862, C. O. S. 1921 [12 Okla. St. Ann. § 51] and must run in the name of the state of Oklahoma, and under the provisions of section 7009 [37 Okla. St. Ann. § 84] the warrant must be directed to a peace officer in the county in which it is issued for service.”

And see Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135.

It is also contended that the court erred in overruling defendant’s challenge to the special venire of jurors summoned on the ground that the same were selected by Milton McCullough, undersheriff, one of the witnesses for the state, upon an open venire.

Upon the hearing Mr. McCullough testified that he summoned the jurors named. That the sheriff was also a witness for the state. At the conclusion of the hearing the challenge was overruled.

It has been repeatedly held by this court that it is essential to a fair and impartial administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.

Under the provisions of section 2987, Procedure Criminal 1931, 22 Okla. St. Ann. § 639, when a panel is formed, or in part formed, from jurors whose names are not drawn from the jury box, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A. L. R. 405; Lyde v. State, 21 Okla. Cr. 426, 209 P. 226; Welch v. State, 36 Okla. Cr. 298, 254 P. 503.

On the authority of the cases cited it was prejudicial error to overrule defendant’s challenge to the special venire of jurors served by the undersheriff.

For the reasons stated the judgment of the lower court is reversed and the cause remanded, with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    HARDIN N. BOYDSTUN v. STATE.
    No. A-9354.
    April 29, 1938.
    (78 P. 2d 1076.)
    D. H. Wilson and Perry Porter, both of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that Hardin N. (Jack) Boydstun did in Ottawa county, on or about the 26th day of February, 1937, have possession of intoxicating liquor with the unlawful intent to transport, sell or otherwise furnish the same to others. The jury returned a verdict finding him guilty as charged in the information and fixing his punishment at six months in the county jail and a fine of $500.

To reverse the judgment rendered on the verdict, April 17, 1937, he prosecutes this appeal.

The errors relied on for a reversal are: Error in overruling motion to suppress the evidence; error in overruling defendant’s demurrer to the evidence, on the ground that the same was obtained under an unreasonable search and seizure; and error in overruling the defendant’s challenge to certain jurors.

This appeal presents the questions decided in the opinion in the case of Riggs v. State, 64 Okla. Cr. 255, 78 P. 2d 1075, opinion this day handed down.

The issues in these cases have heretofore been before this court in an indirect manner, in that much of the procedure on the trial was referred to and reviewed in the case of Fisk v. Venable, 61 Okla. Cr. 360, 68 P. 2d 425.

For the reasons stated in the case of Robert Riggs v. State, 64 Okla. Cr. 255, 78 P. 2d 1075, the judgment of the lower court is reversed and the cause remanded, with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    FRANK RUCKER, JR., v. STATE.
    No. A-9305.
    May 6, 1938.
    (79 P. 2d 629.)

      W. M. Hall, of Claremore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment rendered upon the verdict of a jury finding the defendant, Frank Rucker, Jr., guilty of the crime of larceny of livestock and fixing his punishment at imprisonment in the state penitentiary for two years.

Motion for a new trial, duly filed, was on November 16,1936, overruled. Thereupon the court rendered judgment on the verdict.

The charge was the larceny of “one white-faced Hereford calf, weight about 325 pounds, the personal property of R. M. McFarlin.” Said larceny was alleged to have been committed in said county on or about the 6th of September, 1935.

The errors assigned are: That the verdict of the jury is not supported by the evidence and is contrary to law, and that the court erred in overruling the defendant’s motion for a continuance.

Curtis Still testified that he lives about nine miles south of Claremore, on the McFarlin ranch, and had charge of that ranch and the cattle and other livestock on it, owned by R. M. McFarlin; that on the date alleged there was 1,022 head of cattle, including 375 calves, all white-faced Herefords; that the ranch was a little more than four miles square; that on September 6,1935, he missed a white-faced yearling, weight about 325 pounds, a baby beef; that the evening before the defendant drove up in a truck to the ranch house, and in a conversation with him, the defendant said that he was hunting for a lost dog. The defendant then drove into the pasture, but did not come back by the ranch house; that the next day he was out in the pasture, and went up to where a cow was bawling and found that an animal had been butchered there. This was about two miles from the ranch house. He followed the defendant’s truck tracks from the ranch house to the place where he found a pool of blood, about two feet across, nearby were the car tracks of the defendant’s truck; there were no other car tracks in the pasture except those made by the defendant’s truck, the day before, 8 o’clock in the evening. He notified the sheriff.

He further testified that with the sheriff and others he followed the tracks to where the truck had been driven out of the pasture; they then went to Claremore and in the Safeway Butcher Shop they saw a carcass that looked like the size and the weight that the McFarlin yearling would dress out.

The testimony of Mrs. Curtis Still was to the effect that she knew the defendant; that he was at the ranch house on September 5th, about 8 o’clock in the evening; that she heard a part of the conversation between her husband and the defendant; that the car tracks that the Rucker truck made going into the pasture and the tracks at the cattle guard on the east side where the truck went out were the same.

Four or five other witnesses testified in substance the same as to the truck tracks.

O. 0. Oliver testified that he was a meat cutter, employed by the Safeway at Claremore; knew the defendant in business dealings; that his record shows that on September 6th, near 7 o’clock in the morning, he weighed up a yearling beef, 157 pounds, and paid the defendant for it; that a calf that dressed this weight would weigh between 310 and 325 pounds on foot; that the meat was cool, had not been killed that morning, and had not been in refrigeration; that he paid the defendant $12.56 for the beef; that a day or two before that he had given the defendant an order for that kind of a beef.

John Goodwin testified that he lived on Otter creek, near the McFarlin ranch; went with the sheriff in making the search; that they followed the car tracks from the blood pool in the McFarlin pasture to the town of Claremore, where they found the defendant had sold a carcass, fitting in size to that of the yearling killed in the McFarlin pasture on the night of September 5, 1935.

As a witness in his own behalf, the defendant testified that he lived at Radium Town, at the Cottage Hotel, and did butcher work for the butcher shops around town in Claremore; that on the 5th of September he had an order to fill for the Safeway Store; that he saw Stonewall Jones two or three days before that and bought a little calf from Jones for $10; that he had been to Inola that afternoon looking for and inquiring around for a little dog that he had lost, and was told that it was seen on the McFarlin ranch; that he drove up to the Curtis Still house, and Still told him that he had seen the dog over in the pasture eating a dead calf; that it was then between sundown and dark; that he talked to Still thirty or forty minutes before leaving, and went east into the pasture trying to find his dog; that when he left the pasture he followed the old road from the McFarlin pasture to the Berry Hill pasture and drove up the road to a filling station, turned a mile east, and on to the Stonewall Jones place for the little bull calf that he bought from him two or three days before, and they caught it, hog tied it, and put it in the back seat, and that was the calf that he sold and delivered to the Safeway store; that he got something over $12 for it; that he sold the calf hide to Jack Archer, and offered in evidence the sale ticket; he denied that he had stolen the McFarlin calf.

He further testified that he had made a diligent search to have Stonewall Jones present at the trial, but could not find him, and did not know where he was.

On cross-examination he admitted that he had been convicted of bank robbery, pleaded guilty, and was sentenced to serve a term of 25 years, served about 28 months and was then paroled, and is on parole at this time.

It follows from the foregoing review that the sufficiency of the evidence to support a conviction was for the jury.

Where the evidence is circumstantial, and the circumstances are such as to reasonably justify the inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence obviously does not warrant the inference of guilt that this court will interfere. Otherwise the weight of circumstantial evidence, and the inference to be drawn from it, in almost every case, would finally be determined by the appellate court. We think a verdict of a jury based upon circumstantial evidence comes to us as any other verdict, and unless we can say that the inference of guilt drawn from the evidence is wholly unwarranted, we cannot interfere.

This court has repeatedly held that all that is required of the appellate court in determining the sufficiency of the evidence to support a conviction is to find that there is competent evidence in the record which forms a sufficient basis for the verdict of the jury. Wainscott v. State, 8 Okla. Cr. 590, 129 P. 655; Whitten v. State, 25 Okla. Cr. 447, 221 P. 115; Jamison v. State, 59 Okla. Cr. 62, 56 P. 2d 905; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191.

The refusal of the court to grant a continuance asked on account of an absent witness is assigned as error. The motion and affidavit alleges that Stonewall Jones is a material witness for the defendant; that defendant caused a subpoena to be issued October 5, 1936, ordering his attendance. That:

“He expects to show by the said Stonewall Jones that on or about September 3, 1935, he bought from said Jones a pale red calf, which was delivered to the defendant late in the evening of September 5, 1935.
“Affiant further states that if this case is continued until the next regular term of this court that he will have the said Stonewall Jones present to testify in his behalf; that this application for continuance is not made for delay, but that substantial justice may be done.”

An application for continuance on account of the absence of a witness must show diligence has been used to procure the witness or his testimony. When this is not made to appear, it is not error to overrule such application. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Hunt v. State, 38 Okla. Cr. 294, 260 P. 512.

Under our statutes, the granting or refusing of such application is a matter within the judicial discretion of the trial court. In reviewing the refusal of a continuance, on account of an absent witness, the testimony taken in the trial is considered by this court for the purpose of determining whether the absent testimony was probably true, as well as whether it was material, if true.

The affidavit does not show the exercise of proper diligence to procure his attendance, and there was no showing of any probability of securing his attendance at a future date. The information was filed September 27, 1935, and the case was called for trial October 13, 1936, more than a year thereafter.

The trial court was probably of the opinion that the motion for continuance grew out of a desire for delay rather than for evidence.

In conclusion we simply add that it appears the trial was eminently a fair one. The jury were fully and carefully instructed as to the law and they found the defendant guilty of the offense charged, and we find no reason for disturbing their finding.

The judgment appealed from herein is accordingly affirmed.

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


text:
    OTTO THOMAS v. STATE.
    No. A-9435.
    May 6, 1938.
    (79 P. 2d 625.)

      Meacham, Meacham & Meacham, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Milton Keen, Co. Atty., of Clinton, for the State.
   BAREFOOT, J.

The defendant was charged by information in the county court of Custer county with the crime of having unlawful possession of three gallons of intoxicating liquor with intent to sell the same. He was tried, convicted, and sentenced to pay a fine of $100 and serve 90 days in the county jail. From this judgment and sentence he has appealed.

The overruling of defendant’s motion to suppress the evidence by reason of the service of an illegal search warrant is the first issue presented. A hearing was had upon this motion before the trial of the case. The court, after hearing the testimony, overruled the motion and defendant excepted. It was shown that a search warrant was issued, based upon an affidavit of J. R. Greer, chief of police of the city of Clinton, in which it was stated that certain intoxicating liquor was being manufactured, sold, and otherwise furnished, contrary to law, by one Otto Thomas, “On the following described premises, at and in the residence, * * * situated upon the real estate located in Custer county, state of Oklahoma, described as follows: lots 21 and 22 in block 1, Lincoln addition to the city of Clinton, Oklahoma. That said residence * * * are used as a place of public resort, and for the storage and furnishing of intoxicating liquors.” The search warrant issued in pursuance of said affidavit, among other things, stated:

“That said liquor was being disposed of and kept in the manner aforesaid by Otto Thomas, at and in the residence * * * situated in and upon real estate located as follows : Lots 21 and 22 in block 1, Lincoln addition to the city of Clinton, Oklahoma.”

It also directed the officers to seize any liquor found on said premises, and to make a return of the warrant within three days, etc. One of the officers to whom the warrant was directed made a return showing that the warrant was served upon Otto Thomas and there was found in his possession “six half gallon fruit jars of whisky, canyon run,” at his place of residence, lots 21 and 22 of the Lincoln addition, under the floor of the house at the southwest corner.

The defendant, in support of his motion to suppress the evidence, testified that he and his wife lived in the south room of the two-room house, located upon the said above-described lots; that his sister and her husband, Jim Henry, lived in the north room; and that there was a door and wall between them. On cross-examination he testified that “Jim Henry had been with me for a long time and after the raid he was there a week and a half I should think,” but later stated that he was separated from his wife and remained there and was there at the time of the raid. He further testified that there were two cookstoves, one in the south room and one in the north room, and testified that he had the place rented and that he paid $7.50 per month, and was paying the gas and water bills; that his brother-in-law was paying him $1.25 a week for the north room. His wife corroborated this testimony. Neither Jim Henry nor the sister of the defendant appeared as a witness.

J. R. Greer, the chief of police of the city of Clinton, testified that there was no cookstove in the south room; that there was a sewing machine and a bed in the south room and that there might have been a radio. The witness testified that in the north room there was a bed, cookstove, cooking utensils, groceries, but testified that he found no groceries in the south room, and that it was in the south room where the officers made the search which resulted in finding the liquor, the liquor being found under the floor, and under the linoleum where was situated a trapdoor. This officer also testified to the finding of an empty fruit jar in the south room which had contained whisky, and that he asked the defendant in reference to this empty jar and that the defendant told him that he had sold that the night before. The testimony of this officer was corroborated by Officers Bill Armstrong and Jack Smith, who also assisted in the search of the premises. It is the contention of the defendant that the court erred in overruling the motion to suppress the evidence, and in support of this proposition counsel cites the cases of Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145; Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131; Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; Myer v. State, 34 Okla. Cr. 421, 246 P. 1105; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869. We have carefully read the above cases and we think the facts in those cases are clearly distinguishable from the facts in the case at bar. In the Stouse Case the affidavit and warrant described the person as “one Stout,” the name of the defendant was Stouse. The court held that these names were not idem sonans. The description described the premises as follows;

“Starting at Strother St. in the city of Seminole, Okla., going two miles north on Highway No. 48 thence west about % mile to Good Hope school house, thence south about three hundred yards, to a small unpainted house, in section 16 twp. 9, range 6 east, in Seminole county, Oklahoma.”

The evidence revealed that there were 17 two-room houses along the west side of the road south of the Good Hope schoolhouse, all facing east; that all of these houses, with the exception of one or two, were unpainted oil field shacks, and all of similar appearance and design. Under these circumstances the court held that the description was insufficient, and we think the facts in that case are entirely different from the facts in the case at bar.

In the Lucas Case the liquor was found in a kitchen that was jointly used by several people who lived in an apartment. The defendant lived in the northeast room and the whisky was found in the kitchen, which was another room and over which the defendant had no authority or control. He testified that he did not have any whisky in his possession and knew nothing about the whisky until the officers came there. The description in the search warrant called for a search, describing the premises as an apartment, upstairs, on lots 19 and 20, Elk City. It was shown that several parties used the kitchen in common. It will thus be seen that the facts in that case are entirely different from the facts in the case at bar.

The Wiese Case was reversed upon the questions propounded by the county attorney, and the argument of the county attorney, he having argued to the jury that the defendant was a farmer and had lived here twenty-five years without taking out naturalization papers. The search warrant and affidavit described the property as being a certain section of land. The defendant only owned a quarter section of the same and there were other houses located upon the section other than the one in which the defendant lived. The search warrant did not state that it was a place of public resort and was based upon information and belief. It will thus be seen that the reasons the court reversed this case were not such as is here urged.

In the Myer Case the court held (page 1106) :

“This writ was intended to operate and did operate as a blanket search warrant covering the private places of abode of several people, and was therefore void.”

And clearly does not fall within the facts of the case at bar.

In the Bryson Case, Bryson v. State, 59 Okla. Cr. 130, 56 P. 2d 1198, the warrant was directed to Louis Ogletree, who[ had a room and was employed by defendant. The officers searched the room of Louis Ogletree and also the room of defendant Bryson. The search warrant called for the searching of the northwest quarter of section No. 11, township 5 south, range 8 west. Other houses were located upon this quarter section, and the court held that under these circumstances the search was illegal. It will thus be seen that the facts in the instant case are very different from the cases cited by defendant.

It is contended by the defendant that the affidavit and search warrant do not state that defendant owned and occupied the place to be searched. We do not thihkthat the record bears out this statement. We have heretofore quoted from both the affidavit and search warrant, and it will be seen that the name “Otto Thomas” is mentioned both in the affidavit and in the search warrant. He was present at the time the search was made and was delivered the search warrant and testified that he lived on the property described both in the affidavit and search warrant. The defendant admitted that he had the entire place rented; that he was paying the water and gas bills, and that at the very most his brother-in-law merely had a room rented, and the whisky was not found in the room of the brother-in-law, but was found under a trapdoor under a floor of the room occupied by the defendant and his wife. We do not think there is any merit in the contention that this two-room house constituted two different homes.

It is further contended by defendant that the court erred in admitting testimony as to the reputation of defendant’s home as being a place where liquor could be obtained, and in support of this contention cites the case of Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869. This question has been before this court in different forms many times, and from a reading of the cases it appears at first blush that some of the decisions may be conflicting, but a careful reading of them will show that different questions were involved in each case, and that the facts were totally dissimilar in many instances. The ones that were reversed were generally where the evidence was weak and insufficient to support a conviction. Cases which have been based upon similar questions involved are: Proctor v. State, 8 Okla. Cr. 537, 129 P. 77; Thompson v. State, 9 Okla. Cr. 525, 132 P. 695; Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Hurst v. State, 25 Okla. Cr. 102, 219 P. 151; Williams v. State, 25 Okla. Cr. 284, 220 P. 667; Severns v. State, 31 Okla. Cr. 281, 238 P. 217; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869; Thornhill v. State, 58 Okla. Cr. 114, 50 P. 2d 415. And cases cited therein.

From a reading of the above cases it will be noted that many propositions of law have been firmly established. Among those propositions are:

First. That where a person is charged with the sale or conveying of intoxicating liquor by a specific transaction, and it is not necessary to prove intent, evidence of the reputation of the defendant as being a bootlegger, or evidence of the reputation of the place, is not admissible. Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Carroll v. State, 4 Okla. Cr. 242, 111 P. 1021; Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Ostendorf v. State, 8 Okla. Cr. 360, 128 P. 143; Putman v. State, 9 Okla. Cr. 535, 132 P. 916, 46 L.R.A., N.S., 593; Edmons v. State, 9 Okla. Cr. 603, 132 P. 923; Hurst v. State, 25 Okla. Cr. 102, 219 P. 151.

Second. In cases dealing with the question of houses of ill fame, or maintaining a place where intoxicating liquors are sold, amounting to a nuisance, the character of the house, or the place kept, is an element of the offense, and in such cases the general reputation of the house may be properly shown.

Third. Where a party is charged with the unlawful possession of intoxicating liquor, or where that possession is found in the home of defendant, evidence of the general reputation of the defendant’s home as being a place where intoxicating liquor is sold, or as being a place of public resort, is admissible when the proper predicate has been laid for such testimony. This predicate is laid by offering proof to show that it is a place of general resort. This doctrine was announced and upheld in the Eastridge Case, supra, which was cited by defendant.

Most of the cases above cited were decided prior to July 11,1933, when an act of the Legislature was approved by the legal voters of this state at a referendum election, making the possession of in excess of one quart of intoxicating liquor prima facie evidence of an “intent” to sell, convey, or otherwise dispose of such liquor found in one’s possession. Okla. Stats. Annotated, title 37, p. 567, § 82. In the instant case, the amount of liquor found in the possession of defendant was over three gallons, and the court instructed the jury that the having or keeping in excess of one quart of intoxicating liquor should be deemed “prima facie” evidence of an intention to sell, convey, or otherwise dispose of said liquor, but the possession of said amount did not make it obligatory upon them to convict after the presentation of such proof, but that if, after a consideration of all the evidence, they were satisfied beyond a reasonable doubt as to the guilt of the defendant, it would be their duty to convict. The jury, under this instruction, were given the right in determining the question of “intent” on the part of the defendant, to take into consideration this evidence along with all the other evidence in determining the guilt of the defendant. The officers who testified as to the reputation of defendant’s home as being that of a place where intoxicating liquor could be had or obtained previously testified that he “had seen a number of people going to and coming from there, especially at night.” The next question was:

“Q. What was his reputation in that regard? A. It had the reputation of being a place where intoxicating liquors could be obtained.”

No exception was taken to this question, and no motion to strike it out, and, while the testimony was not strong, we believe that under all the circumstances the court did not err in overruling the motion for a new trial on this ground.

It is well known that in the early days of this state intoxicating liquor was generally sold from a public place. These were known as “joints”; so the early cases, in many instances, dealt with questions where liquor was sold from these public places. With the more stringent enforcement of the prohibition laws, individuals began to sell by carrying bottles upon their person. In late years, under stricter enforcement, and under the protection of their homes, there were those who have sought to make their homes a place of storage, and in some instances a place of public resort, where individuals can go and congregate for the purpose of illegally purchasing intoxicating liquors, and there drinking and consuming the same. This court has always protected the home from illegal search and seizure. The many decisions of the court will reveal the sound reasons upon which these decisions are based. McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, and cases cited therein. But at the same time, when the prooí shows that it is being used as a place of public resort, for the purpose of storing intoxicating liquors, and for the further purpose of illegally selling the same, it then ceases to be entitled to the protection afforded under the Constitution, and the Legislature of this state has provided that, when certain fundamental conditions are complied with, the right of search and seizure of the home shall be upheld. Okla. Stats. 1931, § 2639, Okla. St. Ann. tit. 37, § 88. It follows, therefore, that, where the proper predicate is laid, showing that the home of the defendant was a place of general resort, it was permissible to prove its reputation, where the defendant was charged with the crime of unlawful possession of intoxicating liquor. This for the purpose of proving the “intent” for which defendant had said liquor.

It is next urged that the sentence in this case should be reduced. The defendant is a negro. The record does not disclose that he has ever had any previous conviction. There is no doubt that he had the three gallons of liquor found in his possession for the purpose of sale. From a consideration of all the facts in this case we have come to the conclusion that the ends of justice, both for the county and the defendant, would be best served by reducing the punishment in this case to a fine of $100 and 30 days in jail.

With this modification, the judgment of the county court of Custer county is affirmed.

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