text:
    EMMETT KELLEY v. STATE.
    No. A-7803.
    Opinion Filed June 5, 1930.
    (288 Pac. 1001.)
    Kirt G. Logsdon, for plaintiff in error.
    J. Berry King, Atty, Gen., for tbe State.
   EDWARDS, P. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted of robbery with firearms, and sentenced to life imprisonment.

The record discloses a state of facts about as follows: At the time charged, defendant, a tubercular ex-service man, with his wife, was traveling from the state of Ohio to Arizona in a Ford car. They arrived at Tulsa in destitute circumstances. He solicited and received some assistance from some persons on the street, deriving about $2.25 from this source. A part of this was spent for food. Defendant with his wife then drove to a filling station and bought oil and gas to the amount of $1.55. This was more than defendant had, and a controversy arose with the person operating the filling station which ended by defendant pointing, a pistol at him and telling him he would get nothing. He drove away, but was soon apprehended, lodged in jail, and a charge of robbery with firearms filed. While in jail and before he was arraigned, the jailer advised him that if he would plead guilty he would receive a lenient sentence. On one occasion the jailer in the presence of an assistant county attorney made a promise of leniency if he would plead guilty, and the assistant county attorney said in substance if a plea of guilty should be made with an explanation of the circumstances to the court, it was his opinion that a light sentence would be given, but that he could not officially promise it. It appeal’s that the jailer also talked to the wife of defendant-, making the same promise of leniency, and she also pleaded with defendant to enter a plea of guilty. At that time defendant was not represented by counsel. Counsel was appointed for defendant about 3 o’clock in the afternoon, and at 4:30 he was brought into court and the plea of guilty was entered, and at the time a statement of facts was made to the court both by defendant and his counsel. The court took the matter under consideration until the following morning. On the morning following and before sentence had been passed, defendant, through his counsel, asked leave to withdraw the plea, stating, that counsel had not had time to investigate the matter fully at the time the plea was entered. The assistant county attorney argued that leave to withdraw the plea of guilty was discretionary with the court, hut that in his judgment to refuse the application was not an abuse of discretion. The application was overruled; the court in part said:

“The court will assess the punishment against the defendant at this time. It appears, gentlemen, that the offense in this instance was not as aggravated as would justify, perhaps, the extreme penalty. There is some doubt whether the extreme penalty of death ought to be assessed against the defendant, in view of the circumstances surrounding the commission of the offense and other circumstances in the case. It will be the judgment and sentence of the court that the defendant be confined to the penitentiary at McAlester, Oklahoma, for the rest of his natural life.”

Thereafter defendant filed a written application for the setting aside of the judgment and sentence and to withdraw his plea, which was supported by affidavits of defendant, his wife, and his counsel, setting out the circumstances above detailed. No countershowing was made, but some weeks after judgment and sentence, while the application was pending, the court took the testimony of three witnesses as to the commission of the offense charged.

Robbery with firearms is defined by section 1784, Comp. St. 1921, as amened by chapter 85, Sess. Laws 1923, and chapter 44, Sess. Laws 1925, and by section 1785, Comp. St. 1921. It is extremely doubtful if the evidence discloses an offense greater than larceny. Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 653; Jackson v. State, 114 Ga. 826, 40 S. E. 1001, 88 Am. St. Rep. 60; State v. Clark, 12 Mo. App. 593; 23 R. C. L. 1145.

But even if the facts shown constitute robbery with firearms, the punishment assessed is so grossly excessive under the circumstances as to constitute a miscarriage of justice. Defendant is guilty of a crime, but the sentence of life imprisonment is out of all proportion to the offense. It cannot be permitted to stand. Bridges v. State, 39 Okla. Cr. 183, 264 Pac. 640; Brown v. State, 40 Okla. Cr. 1, 266 Pac. 491.

An application to withdraw a plea of guilty is addressed to the sound discretion of the trial court, and where there is an abuse of such discretion an appellate court should reverse the judgment and grant a new trial or modify the judgment to prevent injustice. The law favors trials of criminal cases on the merits, and where a defendant under the circumstances recited in the record enters his plea of guilty and before or after sentence malees application to withdraw his plea, supported as was the application in this case, it is an abuse of discretion to refuse to permit the plea to be withdrawn and to allow him to submit his case to a jury. Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298; Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194; Hart v. State, 29 Okla. Cr. 414, 233 Pac. 1095; Cook v. State, 45 Okla. Cr. 69, 281 Pac. 819; Longenbaugh v. State, 47 Okla. Cr. 392, 288 Pac. 611.

For the reasons assigned, the case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    WALTER OGLE v. STATE.
    No. A-7499.
    Opinion Filed June 5, 1930.
    (288 Pac. 1000.)

      J. G. Harley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of having possession of a compound mixture fit for distillation and manufacture of whisky, and was sentenced to pay a fine of $100 and to be imprisoned in the county jail of McIntosh county for a term of sixty days. From the judgment, the defendant has appealed.

The state used one witness. The defendant did not introduce any testimony, but read into the record a statement that there was so little testimony of the state against him he stood on his plea of not guilty, and relied upon his constitutional rights that the state before a conviction can be had must prove him guilty beyond a reasonable doubt.

The officer testifying claimed he had a search warrant to search the premises. The defendant objected to the introduction of the testimony, for the reason that all the testimony of the state was secured by an unlawful search and seizure of his residence. For the purpose of ascertaining whether or not the affidavit for the search warrant and the search warrant was sufficient, the court examined the same, and overruled the objections of the defendant.

The defendant in his fourth assignment urges that the court erred in permitting the witness to testify over the objections of the defendant as to what he found on the premises of the defendant, for the reason that all evidence secured was secured under an invalid search warrant.

The description in the affidavit is as follows:

“That in McIntosh county, state of Oklahoma, on the 9th day of February, 1928, the above named defendant, Walter Ogle, at his residence and premises and on land farmed and controlled by him located about four miles west and about one mile south and about one-half mile west and about one-fourth mile south of Eufaula, McIntosh county, Oklahoma.”

Without considering further the testimony introduced by the state, the only error we deem necessary to consider is the fourth assignment which goes to the description in the affidavit for the search warrant as to the location of the defendant’s home. The description in the search warrant is the same as in the affidavit for the search warrant.

Section 30, art. 2, Bill of Rights, Const., is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

By reference to the affidavit for the search warrant and the search warrant, it will be noted that the description in the affidavit and the search warrant does not describe the premises of the defendant by any subdivision of land surveys, and only in an indefinite way places the same somewhere south and west of Eufaula, McIntosh county, Okla. This court has repeatedly held that the description in the affidavit and the search warrant shall be sufficiently definite that no discretion is left to the officer making the search. The description in the affidavit and warrant before us is not sufficient under any authority we have been able to find, all the evidence having been obtained under an invalid affidavit for the search warrant.

The case is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    HERBERT SCOTT v. STATE.
    No. A-7415.
    Opinion Filed June 5, 1930.
    (288 Pac. 999.)
    A. J. Stevens, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

Tlie plaintiff in error, hereinafter caller the defendant, was convicted in the county court of Woods county, on a charge of conveying and transporting intoxicating liquor, and sentenced to pay a fine of $50 and costs, and be imprisoned in the county jail for 30 days. From which judgment the defendant has appealed.

The state, to sustain the allegations, called Charles Johnson, who was a deputy sheriff. He stated that “about the middle of the afternoon on January 26, 1929, I drove out near the Hatfield Dam and stopped; there were three or four cars there; I saw the defendant Scott coming from down below the dam.” The record further discloses that the witness Johnson stated, “When Scott tells you that I shot at him, he lied, and that is all there is to it.” Further in his testimony he states: “I knew he was a bootlegger, has been a bootlegger all his life, that is all he has done.” This statement disclosed the feeling of the deputy sheriff toward the defendant, and was an improper statement. The defendant objected to the statement of the witness, and the court stated the jury will disregard this statement, but in view of the fact that the jury heard the statement of the officer, it is difficult to believe that the jury would disregard such a statement.

It is only deemed necessary to consider the testimony of the witness Johnson wherein he put the character of the defendant in issue. It has been repeatedly held by this court that the state cannot attack the character of the defendant in the first instance, but where the defendant puts his character in issue by introducing evidence of his good character, the state may then offer rebuttal evidence to impeach his good character. Pitcher v. State, 32 Okla. Cr. 322, 241 Pac. 199; Morris v. State, 26 Okla. Cr. 399, 224 Pac. 377; Harris v. State, 39 Okla. Cr. 4, 262 Pac. 700.

In this case the defendant had not introduced evidence of his good character, and the statement of this witness put in issue the defendant’s reputation as a bootlegger, and was prejudicial to the rights of the defendant.

For the reasons stated herein, the judgment is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    T. F. VARNER v. STATE.
    No. A-7395.
    Opinion Filed June 5, 1930.
    (288 Pac. 998.)
    Waldrep & Haight, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of transporting intoxicating liquor, and was sentenced to be imprisoned in the county jail for three months and pay a fine of $500, from which judgment the defendant appeals.

The testimony on behalf of the state is as follows: Al Foraker testified he saw the defendant drive up in an automobile near the Junior High School, in the city of Shawnee, about 8 o’clock p. m., on the 19th day of February, 1929. When defendant stopped his car, witness Vas about 75 yards from the defendant. A man by the name of Allen came across the street and took a package from the car and went back across the street. Bryant ran Allen down and searched him, and found that the package he was carrying contained liquor or whisky.

Frank Bryant testified he was with the witness A1 Foraker, and in substance gave the same testimony as did Foraker; that he chased Allen, and, when he came back with Allen, he brought with him some bottles containing whisky. Foraker testified he stayed there at the car, and kept the defendant until Bryant came back to the car with Allen. The defendant was then taken to the sheriff’s office and a charge preferred against the defendant and Bi ownie Allen. Later an amended information was filed, in which Allen’s name does not appear.

The defendant demurred to the information on the ground that the information did not state sufficient facts to show the commission of a public offense, or a violation of the prohibitory laws, or the infringement of any criminal statute of the state; second, that said information is wholly insufficient in form and substance; third, that the said court had no jurisdiction to hear and determine said cause.

After an examination of the information, we hold the information stated sufficient facts to place the defendant on his trial for the offense charged in the information, a ad that the demurrer was properly overruled.

At the close of the state’s testimony, the defendant demurred to the evidence offered by the state, on the ground, first, the evidence introduced is incompetent, irrelevant, and immaterial; second, that facts sufficient to prove this defendant guilty of the charge alleged in the information have not been proven, and there is not sufficient evidence to sustain the cause of action against this defendant, which demurrer was overruled and the defendant duly excepted.

The defendant assigns 18 errors alleged to have been committed in the trial of his case; the first assignment being the court erred in overruling plaintiff in error’s motion for a new trial. This assignment practically covers all the other assignments in defendant’s petition in error. The defendant in his argument insists that in this case the officers had no search warrant, and could not tell what the defendant had until they had searched the car and searched the party whom they saw take the package away from the car.

The defendant further urges that the court, in overruling his objection to the introduction of the testimony at the commencement of the trial, committed reversible error. Further in his argument he presents the question that the testimony was incompetent, irrelevant, and immaterial by reason of the unlawful search and seizure. After a careful reading of the record, we fail to find any objection of the defendant to the introduction of the testimony on the ground that it was procured by unlawful search and seizure. The defendant did not file a motion to suppress the testimony on the ground that it was procured by an unlawful search and seizure. When the state called its first witness, the defendant objected to the introduction of any testimony, on the ground that the information did not state facts sufficient to constitute a cause of action against him. This objection was overruled, and the defendant reserved an exception. The court did not commit error in overruling this objection, for the reason that the information stated facts sufficient to advise the defendant of the crime charged against him.

The testimony in this case shows that the defendant drove his car up to a designated point near the Junior High School building in the city' of Shawnee, and that Brownie Allen came up to the car and took a package out of the car; that the witness Frank Bryant called to Allen, and Allen started to run, and Bryant followed him and caught him, and took from him the package the witness had seen delivered to him by,the defendant from the car; and that the package contained a half gallon and a pint of whisky.

No testimony is offered on behalf of the defendant. The defendant urges that the testimony of the state was improperly admitted, and was not sufficient to sustain the conviction, and insists that his demurrer to the evidence, when the state rested its case, should have been sustained. We cannot agree with this contention, for the reason that the proof is positive that the defendant delivered the package to Allen and Allen started to run, and Frank Bryant testifies he followed him and took the package away from him and found it contained whisky. The defendant had not left his car at the time he was taken into custody. One of the witnesses testified that the defendant got out of his car and stated something was wrong with it. Considering all the testimony in this case in the most favorable light, and giving the defendant the full benefit of the doubt, we hold that the evidence is amply sufficient to sustain the conviction.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., conur.


author: PER CURIAM.

text:
    MELTON MOORE et al. v. STATE.
    No. A-7286.
    Opinion Filed June 5, 1930.
    (288 Pac. 997.)
    Rummons & Hughes, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The petition in error, with case-made attached, was filed in this court on February 11, 1929. No brief has been filed in support of the errors assigned, nor has there been any personal appearance for the defendant or oral argument submitted in support of their assignments.

The record in this case has been carefully examined, and we find the information was sufficient to charge an offense; that the testimony is sufficient to show the defendants guilty; and that the defendants were accorded a fair and impartial trial.

Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.


text:
    R. L. SNOW v. STATE.
    No. A-7290.
    Opinion Filed June 5, 1930.
    (288 Pac. 997.)
    E. V. Rakestraw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having in his possession intoxicating liquor, to wit, 20 gallons of beer, and was sentenced to pay a fine of $125, and be confined in the county jail for 30 days. From which judgment he appealed.

The defendant was convicted on the 20th day of October, 1928, and his petition in error, with case-made attached, was filed in this court on the 16th day of February, 1929. No brief has been filed in support of the errors assigned, nor has there been any personal appear-anee for the defendant, or oral argument submitted in support of the assignments.

Where no brief is filed and no personal appearance is made, the court presumes that the appeal is without merit or has been abandoned. We have examined the record and find the information properly charges an offense. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.

EDWAEDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    LESTER NICHOLSON v. STATE.
    No. A-7164.
    Opinion Filed June 5, 1930.
    (288 Pac. 996.)
    John V. Boberts, for plaintiff in error.
    The Attorney General and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county of the crime of robbery with firearms, and his punishment fixed at imprisonment for a term of 15 years in the state penitentiary.

Andy Reed, the prosecuting witness, testified that he was robbed of $263 to $273 at his residence in the town of Covington on the night of January 10, 1928; that the defendant had a pistol and had the lower part of his face covered; that he kept sizing him up and trying to figure out who he was; that, after robbing him, the defendant and the man who helped Mm walked to the corner, got in a Ford coupe, and left; that the moon was shining bright, and that he heard defendant’s voice; that next day he saw the defendant in company with Frank Groom at Enid, and recognized him as the man who had robbed him; that he identified the pistol taken from the defendant when arrested as the one used in the robbery; that he examined the automobile tracks at the corner where the defendant had robbed him, and that they were the same tracks as those at the Barnes place where defendant admitted he was that night; that he knew defendant by his voice and general appearance. The facts and circumstances in the case, together with other testimony offered by the state, tended to corroborate the complaining witness except as to what actually occurred at the time of the robbery.

Defendant admitted at the trial that he was at the Barnes place near where prosecuting witness was robbed at about the time of the robbery, and that he was riding in a Ford coupe and stopped at the Barnes place to get, as he says, some whisky.

Defendant raises but one question, and that is the sufficiency of the evidence to support the verdict of the jury. This court has uniformly held that it will not set aside the verdict of the jury where there is competent evidence tending to support the same. A careful examination of the record discloses that the evidence, while conflicting, was sufficient to justify tbe jury in finding tbe defendant guilty.

Por tbe reasons stated, tbe cause is affirmed.

EDWARDS, P. J., and DAVENPOBT, J., concur.


text:
    W. M. BASS v. STATE.
    No. A-7243.
    Opinion Filed June 5, 1930.
    Rehearing Denied June 14, 1930.
    (288 Pac. 991.)
    Cbam Jones and E. L. Dillard, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Jefferson county of tbe crime of pointing a weapon at another, and bis punishment fixed at a fine of $50 and confinement in the county jail for a period of 90 days.

Tbe evidence of the state was that Dorance Clifton, Bill Holcomb, and Buck Moore, employees of the Community Natural Gas Company, were driving one of the company cars in the vicinity of Waurika during the noon hour; that the sheriff and the defendant were on their way to Waurika with a prisoner and observed these parties driving in the car. After the prisoner had been taken to jail the defendant returned following these parties for some distance in the car; that defendant drove his car up beside these parties and ordered them to stop; that after some conversation between them the defendant told them that he wanted to search their car and the parties got out of the car, stood to one side, and told him to search it; that no liquor or any unlawful object was found in the car; that some blueprints lying on the seat in the car were either blown or thrown out by the defendant and fell into the mud; that Clifton ordered the defendant to pick the blueprints up and put them back in the car, and, when defendant failed to do so, stepped up toward the car and defendant for the purpose of picking up and caring for these blueprints; that defendant struck Clifton in the mouth with his fist and jerked his pistol out and pointed it at Clifton and the other two parties and said: “Stay back or I’ll beat your G— D— head off.”

Defendant defended on the ground that he was suspicious of these parties and was in the legal discharge of his duty in searching the car with their permission, and that at the time he struck Clifton he thought they were about to- commit an assault upon him; that he did not point his gun at Clifton or either of the other parties but only pointed his finger for the purpose of compelling them to desist from the assault they were about to commit upon him.

Defendant in his brief says:

“Various errors are listed by the assignments of error some of which question the qualification of the court to try this case and the case-made shows the proof of proceedings relative to this phase of the case, but we think that the only assignments of - error necessary to urge in this appeal are numbers 13, 14, and 18, which raise the question of the sufficiency of the evidence.”

In the case at bar the defendant makes no claim that a public offense had been committed or attempted in his presence, nor that the parties had committed a felony out of his presence, nor that he had a reasonable cause for believing they had committed it, and does not seek to justify the following of the parties nor the searcn of the car upon these grounds. The defendant was therefore without any authority to follow after these parties or to search their car merely on suspicion. The mere fact that the parties had, on the officer’s demand, consented to a search of the car gave defendant no legal authority to commit an assault upon Clifton nor to draw his pistol and point it at them even under the circumstances as detailed by defendant. While section 1994, C. O. S. 1921, authorizes the carrying of weapons by public officers in the discharge of their duties, it does not authorize the carrying of weapons nor the use of the same under the circumstances revealed by the evidence in this case. Therefore the claim of defendant that he was in the lawful discharge of his duty as an officer must be rejected as without any merit.

The defendant next contends that even if the court should hold that the defendant was not in the discharge of his lawful duties at the time of the commission of the offense, that the evidence on the part of the state was wholly insufficient to establish the offense of pointing a pistol and wholly insufficient to justify a conviction of the offense charged in the information.

Section 1999, C. O. S. 1921, provides:

“It shall be unlawful for any person to point any pistol or any other deadly weapon, whether loaded or not, at any person or persons, either in anger or otherwise.”

The defendant, testifying in the case, denied that he drew his pistol or pointed it at Clifton, but testified that he pointed his finger at them to intimidate them. Clifton, Holcomb, and Moore testified positively that the defendant did draw his pistol and did point it not only at Clifton but at all three of them and ordered them to stay back or he would beat their heads off. Each of these witnesses testified that they were unable to tell how long a period of time the pistol was pointed but fixed the time as varying from ten seconds to two or three minutes. Whether defendant pointed the pistol as charged in the information was a question of fact to be determined by the jury from all the evidence in the case. The jury having found the defendant guilty, and there being competent evidence to support the same, this court is bound by such finding.

A public officer in the discharge of his lawful duties is entitled to the protection of the courts and should always receive the same. In the case at bar the officer was proceeding without any legal authority against innocent and inoffensive citizens and committed the offense charged while engaged in such illegal enterprise. Under such circumstances the officer can no more claim protection for his acts than could a private citizen under like circumstances. Officers of the law should themselves respect and obey the law before claiming protection under it.

The defendant has had a fair trial, the jury found him guilty on competent evidence, and substantial justice seems to have been done in the punishment to be administered. For the reasons stated, the cause is affirmed.

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


text:
    ELMER BAILEY v. STATE.
    No. A-7531.
    Opinion Filed June 5, 1930.
    Rehearing Denied June 21, 1930.
    (288 Pac. 991.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of having possession of intoxicating liquor, in the county court of Noble county, and his punishment fixed at a fine of $300 and costs and imprisonment in the county jail for a period of 60 days.

The appeal in this case was filed in this court on the 30th day of August, 1929. No briefs have been filed on behalf of the plaintiff in error and no appearance made for oral argument. We have carefully examined the record and find that the information properly charged an offense; that the defendant was accorded a fair and impartial trial. No errors being apparent depriving the appellant of any substantial right, the judgment is affirmed.


text:
    R. E. VAN VALKENBERG v. STATE.
    No. A-7529.
    Opinion Filed June 5, 1930.
    Rehearing Denied June 21, 1930.
    (288 Pac. 990.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of selling one-half pint of whisky to one G. E. Thompson, and his punishment fixed at a fine of $50 and cost, and confinement in the county jail for a period of 30 days. Prom which judgment the plaintiff in error appealed to this court.

Petition in error and case-made was filed in this court on the 30th day of August, 1929. No brief has been filed by the plaintiff in error, and no appearance made for oral argument.

Where no brief is filed and no- appearance made, this court will presume that the appeal is without merit or has been abandoned. A careful examination of the record discloses that the evidence is sufficient to support the verdict of the jury. No errors being apparent depriving the appellant of any substantial rights, the cause is affirmed.


text:
    CECIL PIKE v. STATE.
    No. A-7383.
    Opinion Filed June 5, 1930.
    (288 Pac. 1117.)
    Darnell & La Rue, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Custer county on a charge of transporting intoxicating liquor, and his punishment fixed at a. fine of $100 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 20th day of May, 1929. No briefs have been filed on behalf of plaintiff in error, nor was there any appearance made for oral argument.

A careful examination of the record discloses that the information charges an offense and that there is sufficient evidence to support the verdict.

There being no errors depriving appellant of any substantial rights, the cause is affirmed.


text:
    JESSE HARRELSON v. CITY OF CLINTON.
    No. A-7379.
    Opinion Filed June 5, 1930.
    (288 Pac. 1116.)

      Walter S. Mills, for plaintiff in error.
    W. P. Keen, for City of Clinton.
   PER CURIAM.

The plaintiff in error was convicted in the police court of the city of Clinton of the crime of being intoxicated on the streets of said city, and his punishment fixed by the court at a fine of $20.

The appeal in this case was filed in this court on the 20th day of May, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument.

Upon careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    W. R. WOMACK v. STATE.
    No. A-7253.
    Opinion Filed May 17, 1930.
    Rehearing Denied June 5, 1930.
    (288 Pac. 399.)

      E. B. McMahan, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cimarron county on a charge of having possession of intoxicating liquor, to wit, home-brew, with intent to violate the prohibitory liquor laws, and his punishment fixed by the jury at a fine of $50 and confinement in the county jail for 30 days.

The evidence of the state shows that they found two gallons of fermented and malt intoxicating liquor in defendant’s store, and that an analysis of two bottles of such liquid showed that one bottle contained 2.90 per cent, and the other 3.85 per cent, of alcohol. The defendant claimed to have this liquor for the use of himself and his family. Defendant first contends that the evidence is insufficient to support the verdict, but there is no merit in this contention. The jury were not bound to believe the explanation offered by the defendant, and since the evidence offered by the state made a prima facie case both as to quantity and volume of alcohol, the evidence sustains the verdict.

The defendant next contends that the court erred in instructing the jury upon the question of what constituted transportation, but since the question of transportation is not the offense charged, and since this evidence was brought out by the defendant in attempting to explain the use he intended to make of the liquor, the instruction complained of could not have been prejudicial to him. For the reasons stated, the cause is affirmed.

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


text:
    ARTHUR LEARY v. STATE.
    No. A-7175.
    Opinion Filed June 10, 1930.
    (289 Pac. 355.)
    Darnell & La Rue, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Custer county, on a charge of assault and bat tery, with intent to injure without intent to till, without justifiable or excusable cause, and his punishment fixed at imprisonment in the state penitentiary for a term of one year. From the judgment the defendant has appealed to this court.

The petition in error, with case-made attached, was filed in this court on September 28, 1928. No brief has been filed in support of the errors assigned. The record in this case has been carefully examined, and we find that the information was sufficient to charge an offense; that the testimony is sufficient to show the defendant guilty; and that the defendant was accorded a fair and impartial trial.

Where no brief is filed and no personal appearance made, this court will presume that the case is without merit or has been abandoned. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    H. R. WILSON v. STATE.
    No. 7401.
    Opinion Filed June 10, 1930.
    (289 Pac. 361.)
    Jesse J. Todd and Percy Powers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was convicted in the county court of Greer county, of having possession of mash fit to be used for the purpose of distillation of whisky, with the unlawful intent to distill and manufacture whisky in violation of the prohibitory laws of the state of Oklahoma, and was sentenced to pay a fine of $150, and be imprisoned in the county jail for 120 days. Prom the judgment, the defendant has appealed to this court.

Petition in error and case-made was filed in this court on the 27th day of May, 1929. No' further appear-anee has been made by the plaintiff in error, nor any further extension ashed for time to file brief in support of ■the assignments of error.

Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record and find the information properly charged an offense; that the defendant was accorded a fair and impartial trial; that no fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS, P, J., and CHAPPELL, J., concur.


text:
    Ex parte TOM RICE.
    No. A-7458.
    Opinion Filed June 10, 1930.
    (289 Pac. 360.)
    Mathers & Mathers, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

Petitioner alleges that he was convicted in the county court of Oklahoma county in cases Nos. 6808, 6879, 6898, and 7007, respectively; that he failed to perfect his appeal in No. 6808, and that an alias warrant was issued for his arrest on the 21st day of January, 1927, which warrant was returned, “not found in Oklahoma county”; that on or about the 5th day of May, 1928, he was arrested and committed to the Oklahoma county jail to serve his sentences received in Nos. 6879, 6898, and 7007, and that he has served the sentences imposed in said cases and a warrant of release has been issued to the sheriff of Oklahoma county on such cases, and that he is being restrained of his liberty by the sheriff of Oklahoma county in cause No. 6808.

Petitioner contends that his sentence in No. 6808 began upon the date of his incarceration on or about the 5th day of May, 1928, although, due to the omission or mistake of the court clerk of Oklahoma county, commitment was not issued in said case until about the 14th day of July, 1928, and that, by reason of the error or omission of the clerk, he served the sentence in 6808 concurrently with the sentences in 6879, 6898, and 7007.

Section 2308, O. O. S. 1921, provides as follows:

“When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced apon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

This court had under consideration the precise question raised by the defendant in the case of Ex parte Hal-bert, 45 Okla. Cr. 167, 282 Pac. 478. In the body of tbe opinion this court said:

“The time fixed for the commencement of the execution of a sentence is not one of its essential elements, and the specifying in the sentence of the time when it shall commence is in the nature of an award of execution. The essential part of the judgment is the punishment and the amount thereof, without reference to the time when it shall be executed. The time fixed for the execution is directory and not controlling except in cases under sections 2303 and 2774, Comp. St. 1921, above quoted, where a defendant has been convicted of two or more offenses before judgment on either. The rule here applied is that of the common law, in substance that where the judgment and sentence is imposed for a certain term, and where from any cause the time elapses without the imprisonment being endured, it it still a valid, subsisting, and unexecuted judgment to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. The expiration of time without imprisonment is in no sense an execution of the sentence. Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Holden, supra [31 Okla. Cr. 133, 237 Pac. 622]; Ex parte Smith, supra [33 Okla. Cr. 175, 242 Pac. 284]. The only authority for concurrent sentences under our law must be derived from sections 2303 and 2774, Comp. St. 1921, supra. The power is granted the trial court on the conditions therein named. In all other cases the sentences are consecutive. This case does not fall within the terms of the statute, and the sentences therefore must run consecutively.”

For the reasons stated, the writ is denied.

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


text:
    Ex parte JOHN HIBLER.
    No. A-7588.
    Opinion Filed June 10, 1930.
    (289 Pac. 359.)
    See, also, 139 Okla. 157, 281 Pac. 144.
    Catlett & Catlett, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

The petitioner, John Hibler, filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the sheriff of Seminole county, Okla.

It appearing that the prisoner has been discharged and is no longer being held by the sheriff of Seminole county, the petition is moot, and the writ is therefore dismissed.

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


text:
    Ex parte ELLMORE LIVELY.
    No. A-7496.
    Opinion Filed June 10, 1930.
    (289 Pac. 359.)
    See, also, 141 Okla. 85, 284 Pac. 18.
    Ellmore Pinnick, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

The petitioner, Frank S. Lively, filed his petition in this court for a writ of habeas corpus alleging that he was illegally restrained of his liberty by the sheriff of Oklahoma county, Okla.

It appearing that the prisoner has been discharged and is no longer being held by the sheriff of Oklahoma county, the petition is moot, and the writ is therefore dismissed.

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


text:
    LEM EASTERWOOD et al. v. STATE.
    No. A-7353.
    Opinion Filed June 10, 1930.
    (288 Pac. 1115.)
    J. Randall Connell, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiffs in error were convicted in the county court of McCurtain county of the crime of having unlawful possession of intoxicating liquor, to wit, whisky, and they were sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 29th day of April, 1929. No briefs have been filed on behalf of plaintiffs in error, and no appearance was made for oral argument.

A careful examination of the record discloses sufficient evidence to support the verdict of the jury.

There being no errors depriving the plaintiffs in error of any substantial right, the cause is affirmed.


text:
    DALE STOKES v. STATE.
    No. A-7699.
    Opinion Filed June 14, 1930.
    (288 Pac. 1118.)
    John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Payne county on a charge of having the unlawful' possession of intoxicating liquor, and was sentenced to pay a fine of $75 and to imprisonment in the county jail for a term of 90 days.

Judgment was rendered August 22, 1929, and the appeal was lodged in this court December 27, 1929. No extension of time for filing the appeal appears. By section 2808, Comp. Stat. 1921, an appeal from a conviction for a misdemeanor must be taken within 60 days after judgment, unless the court or judge, for good cause shown, extend the time not to exceed 60 days additional. The 60 days within which the appeal could have been taken expired, and there has been no extension of time by the court or judge. The appeal was filed too late.

The appeal is dismissed.


text:
    JOHN PATTON v. STATE.
    No. A-7385.
    Opinion Filed May 17, 1930.
    Rehearing Denied June 14, 1930.
    (288 Pac. 1117.)
    John T. Levergood, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Pottawatomie county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and confinement in the county jail for a period of 6 months.

The appeal in this case was filed in this court on the' 21st day of May, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


author: PEE CURIAM.

text:
    JACK HAWKINS v. STATE.
    No. A-7388.
    Opinion Filed June 14, 1930.
    (288 Pac. 1116.)

      C. H. Baskin, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEE CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Hughes county on a charge of unlawfully transporting whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

An examination of the record discloses that at the time charged a deputy sheriff seeing defendant in an intoxicated condition, arrested him, and upon the search of his person found a half pint of whisky. There seems to be no question of his guilt. No material error is pointed out.

The case is affirmed.


text:
    LIZZIE HERRING v. STATE.
    No. A-7281.
    Opinion Filed June 14, 1930.
    (288 Pac. 1116.)
    Norman H. Wright, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance, and was sentenced to- pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that at the time charged two officers with a search warrant went to the place of residence of defendant and where also was operated a small grocery store and cold drink stand; there they found two customers who had just purchased two bottles of beer and were in the act of drinking it. They seized this beer, had it analyzed, and it showed more than 6 per cent, alcohol. It is argued that the evidence is insufficient and that the evidence introduced was obtained by an illegal search and that incompetent evidence relating to other offense was admitted. We have examined fully the contentions made, and deem it unnecessary to discuss them. None of them can be sustained.

It is further argued at some length that it will be an extreme hardship on defendant if this conviction should be affirmed. This contention goes to the matter of clemency rather than to any legal question presented by the record.

The case is affirmed.


author: DAVENPOUT, J.

text:
    Ex parte MARGARET SADLER.
    No. A-7489.
    Opinion Filed June 14, 1930.
    (289 Pac. 356.)

      Mathers & Mathers, for petitioner.
    George M. Callihan, Co. Atty., for respondent.
   DAVENPOUT, J.

This is an original proceeding in habeas corpus brought by the petitioner, Margaret Sadler. In her petition she alleges that she was convicted in the district court of Oklahoma county, wherein she was charged with unlawfully, feloniously, wrongfully, and knowingly obtaining from J. H. Chaney one radio set, of the value of $60; the petitioner was sentenced upon said conviction to pay a fine of $50 and to serve 30 days in jail; that on the 26th day of April, 1929, the court clerk issued a release for said petitioner upon the filing of a stay bond by her for the fine and costs; that on the 27th day of July, A. D. 1929, petitioner was placed back in said county jail without authority and without commitment papers, and that said petitioner is now so confined; that the said petitioner served a full jail sentence of 30 days, and 24 days on said fine and costs, and 30 days in jail in addition thereto, making in all about 84 days said petitioner has been so confined in jail.

Petitioner alleges that her restraint is illegal and unauthorized, in that there is no judgment and sentence reciting that, if petitioner failed to pay the fine and costs, she should be imprisoned for said fine and costs not exceeding $1 or $2 or any other amount, for each day thereof; that, after said alleged stay bond was approved, said petitioner was released in law, and the only course the state has is to look to the stay bond, as they have no legal authority to recommit said petitioner therefor; that said petitioner was not recommitted to jail under any legal process or authority; that there is no right or authority for said district court to accept or approve a stay bond for fine and costs in this case.

The petitioner in this case shows that she was convicted upon a felony charge and committed to jail until she had served a sentence and the fine and costs had been paid.

Section 2997, C. O. S. 1921, is as follows:

“Upon conviction, or plea of guilty of misdemeanor, the defendant may stay the collection of the fine by giving good and sufficient bond, with two or more sureties to be approved by the court, conditioned that the defendant will pay the fine and costs within thirty days from the date of the judgment; Provided, that if the defendant is sentenced to pay a fine and be imprisoned, the bond shall be conditioned to pay the fine and costs within thirty days after the end of the term of imprisonment. The court shall require the sureties on the stay bond to justify as in other cases.”

The foregoing section of the statute is the only provision we find authorizing the giving of a stay bond for the fine and costs, and it only applies to convictions in misdemeanor cases and not felony. We agree with the contention of the petitioner that there is no statute authorizing the district court to accept a stay bond in felony cases. The conviction in this case was on an information charging a felony, and the action of the. clerk in accepting a stay bond for the fine and costs.and releasing the petitioner was without authority of law.

The writ is denied.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    ARTHUR ROSS et al. v. STATE.
    No. A-7223.
    Opinion Filed June 14, 1930.
    (289 Pac. 358.)
    C. D. Peck and W. L. McCann, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Oklahoma county on a charge of larceny of an automobile, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years for each of them.

J. Lawrence Smith testified for the state that he was the owner of a Ford sedan which was stolen on or about the 20th day of December, 1927, but that he had no personal information as to who committed the theft. The state then called C. C. York and Clarence Hurt, police officers in Oklahoma City and connected with the stolen car department, who testified that they arrested Arthur Ross and Charley Heath, two young boys as the thieves; that they took them to the police station and booked them for investigation and about an hour afterward brought the defendants out one at a time for “investigation” (?). There were no eye-witnesses to the theft of the car. At the time these officers were called to testify as to- confessions made by the defendants, their counsel objected on the ground that the pretended confessions were procured from the defendants by third degree methods after personal assaults had been committed by these witnesses upon the defendants and after veiled threats to take them out and permit them to be killed had been made. In the absence of the jury the court permitted defendant’s counsel to cross-examine C. C. York, who admitted on cross-examination that they did not bring the prisoners from their cells to take them before any magistrate, but brought them out for investigation and took them to a private room in the police station. The witness admitted that he caught one of the defendants by the hair and started to hit him, as he claimed because the defendant called him “a damn liar,” and further admitted that he and the other officers told them that they were going to take them out to the show grounds where the watchman was, and if he identified them and if they did not tell about it, that they ought to leave them out there. Witness denied that he said they would take them down to the river and they would not come back, but defendants both testified that that was what he said. Another officer testified in the preliminary that the witness York did strike the prisoners in the face after making these admissions. In the presence of the jury the court permitted the witnesses to testify that the defendants “confessed” (?) to' the stealing of the automobile in question.

The defendants assign numerous errors, some of which have merit, but it will only be necessary to consider the objection of the defendants to the admission of the purported confessions of the defendants. This court bas held in numerous cases that when confessions were not voluntarily made it was error to admit them. Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Waide v. State, 13 Okla. Cr. 165, 162 Pac. 1139; Lucas v. State, 26 Okla. Cr. 23, 221 Pac. 798.

Primarily there are two facts which render a confession inadmissible as evidence. First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination, and second, that it was made under such circumstances of hope and fear as to create a fair probability of its testimonial untrustworthiness. The case at bar falls squarely within this rule. From the admissions of the officers themselves it is evident that the purported confession was obtained under compulsion and by use of threats. Both of the defendants were about seventeen years of age. Young and immature boys, arrested on suspicion, taken to the city jail and from there to the “sweat-room,” where the third degree was applied, and, as a result of intimidation, threats, and abuse, the purported confessions were obtained.

We take this occasion to condemn such practices in unmeasured terms. We are not living in the dark ages, in the time when the defendant had no rights which anybody was bound to respect, but we are living in an enlightened and modem age, where the defendant is presumed to be innocent until he is proven guilty beyond a reasonable doubt and where he is entitled to be confronted by his accusers and to meet a charge in writing duly verified and to give bail to be represented by counsel. All of these constitutional rights were denied the defendants in the case at bar, and by means of threats and intimidation the purported confessions were obtained from these young boys. The state of Oklahoma does not sanction such methods of obtaining evidence. County attorneys should refuse to prosecute cases where the evidence was procured as this evidence was. The trial court erred in overruling the objections of the defendants to the introduction of these purported confessions. The state having no other evidence that tended to connect these defendants with the commission of the crime, there was no competent evidence to' go before the jury, and the trial court should have directed them to find the defendant not guilty. For the reasons stated, the cause is reversed, with directions to dismiss the case and exonerate the bonds of the defendants.

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


text:
    EDWARD WERMY v. STATE.
    No. A-7187.
    Opinion Filed June 14, 1930.
    (289 Pac. 361.)
    J. W. Osmond and R. H. Morgan, for plaintiff in error.
    The Attorney General and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of the crime of assault with intent to rape, and his punishment fixed by the court at imprisonment in the reformatory at Granite, Okla., for a period of four years.

The evidence of the state was that Marie Sanders, an 8 year old girl, was on the way from her home to a country school about two and a quarter miles away; that the defendant, an Indian boy, caught up with her and after walking by her side for some distance made her get out on the side of the road and asked her if she would do something for him if he would give her a quarter, and that he threw her down on the east side of the ditch and made an indecent proposal to her and that she began to cry and he let her up and told her not to tell it and he would not do anything to her any more. This little girl picked the defendant put of a group of men in the county jail, purposely arranged to resemble him in size and characteristics, and again picked him out in the court room in the presence of the jury as the one who' had assaulted her. Two other little girls of about the same age saw part of the assault and corroborated the Sanders girl’s story in several respects. Other witnesses were introduced to establish the age of the girl, the venue of the crime and purported admissions made by the defendant.

The defendant is an Indian boy 18 years of age. He did not take the witness stand and offered no evidence in his defense. Defendant contends, first, that the court erred in overruling his demurrer to the information for the reason that the information did not allege Marie Sanders, the girl upon whom the assault was alleged to have been committed, was of previous chaste and virtuous character, and cites in support of this contention, Young v. Territory, 8 Okla. 525, 58 Pac. 724; Weaver v. State, 16 Okla. Cr. 564, 185 Pac. 447, and Davis v. State, 17 Okla. Cr. 604, 191 Pac. 1044. None of these cases are in point. In Young v. Territory, supra, the prosecution was had under Session Laws of 1895, p. 104, c. 20, art. 2, § 1, which reads as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: First. Where the female is under the age of 16 years, of previous chaste and virtuous character.”

Weaver v. State, supra, is not in point on this question. Davis v. State, was a female under the age of 18 years and the prosecution was had under subdivision 2, § 1834, C. O. S. 1921. The prosecution in the case at bar was had under the first division of section 1834, C. O. S. 1921, which reads .as follows: “Where the female is under the age of sixteen years.” The statute having been amended since the decision in Young v. Territory, supra, it is not necessary to allege in the information, where the assault is committed on a female under the age of 16 years, that she was “of previous chaste and virtuous character.”

Defendant next contends that there was no proof of venue showing that the crime was committed in Comanche county, Okla. Marie Banders testified that she was assaulted by the defendant on the road between her home and the schoolhouse. Susie Sanders, the mother of the girl, testified: That her home was in Comanche county, Okla.; that the girl assaulted was attending the Blue Beaver school and that that school was in Comanche county and that the road the little girl was traveling over in going from her home to the school was in Comanche county, Okla. This evidence was amply sufficient to establish the venue of the crime.

Defendant’s counsel next complains that the trial was had in his absence and was not postponed to permit him to appear as counsel for the defendant. The record discloses that at the time the case was called for trial the state was represented by the county attorney and an assistant, and that the defendant was present in person and was represented by counsel, to wit, Lewis Hunter, of Law-ton, Olda. The record fails to show any application being made to postpone the ease or that J. W. Osmond, attorney, had appeared in the case or was of counsel for the defendant. None of the matters complained of by counsel in his brief appear in the case-made except as the same appears in a supplemental motion for a new trial filed by said J. W. Osmond as attorney for the defendant. The record presents no question under this assignment for consideration by the court.

The jury found the defendant guilty, but were unable to agree upon the punishment and left the same to be fixed by the court. There is ample, uncontradicted evidence in the record to support the verdict of the jury. The defendant did not accomplish his purpose, abandoning the assault upon the appearance of two other little girls. Under all the facts and circumstances disclosed by the record, we cannot say that imprisonment for four years is an excessive punishment.

The errors of law complained of being without merit, the cause is affirmed.

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


text:
    MRS. ROSS DUNEGAN v. STATE.
    No. A-7403.
    Opinion Filed June 14, 1930.
    (289 Pac. 355.)
    Waldrep & Haiglit, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of operating and maintaining a public nuisance, and her punishment fixed by the jury at a fine of $300 and confinement in the county jail for a period of two months.

The evidence of the state was that they procured a search warrant to search the premises of the defendant, and that after serving a copy of the same on the defendant they found three cases of bottled beer in the kitchen back on a shelf and a five-gallon water bottle full of beer about ready to bottle and a ten-gallon jar that had had beer in it. They found two bottles and empty glasses setting on the dining table that looked as though they had just been emptied and six cases of empty bottles under the house, a capping machine, and a siphon hose. That they had samples of the beer analyzed, and that the same cbn-tained 5.2 per cent, of alcohol measured by volume. Numerous neighbors of the defendant were called who testified that during the day the blinds were kept drawn at this place, and that numerous cars came every day and that men came and went from the house; that the place was a place where people congregated and that it had the reputation of being a place where intoxicating liquors were kept and sold.

The defendant took the stand in her own behalf and admitted that the beer and things were found as testified to by the officers, but denied that she was the owner of the same or had anything to do with them. She testified that her husband was a railroad man and was away from home every day, and explained that the cars that came there were automobile salesmen, insurance agents, and friends. The evidence of the state was sufficient to support the verdict of the jury.

Defendant contends first that the affidavit and search warrant are insufficient and attaches copies of the same to her motion to suppress the evidence. The affidavit is positively sworn to and contains all the necessary allegations to authorize the issuance of a search warrant. The warrant is in proper form and was duly served on the defendant. The trial court did not err in overruling the motion to suppress the evidence. The case was well tried; the proceedings all appear to be regular and sufficient. The cause is therefore affirmed.

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


text:
    NED JAMES v. STATE.
    No. A-7299.
    Opinion Filed June 14, 1930.
    (289 Pac. 780.)
    G. W. Goad and J. W. Miller, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   DAVENPORT, J.

Tbe plaintiff in error, hereinafter referred to as the defendant, was convicted of embezzlement, and bis punishment fixed at imprisonment in tbe penitentiary for two years. From tbe judgment, tbe defendant has appealed.

An abstract of tbe testimony of tbe state, in substance, is as follows: Willie Walasky owned a farm in Delaware county and rented the same to Ned James and Pete James; they were living in tbe house owned by Wa-lasky; Walasky bad some cattle which was left on tbe place, and some other property; among tbe cattle was a black cow; shortly after the defendant moved on the place, the cow found a calf; Walasky was asked and answered the following questions:

“Q. Who did you let milk her (referring to the black cow) ? A. I did not let anyone have her.
“Q. Mr. Walasky, do you know whether or not Pete and Ned James milked the cow? A. Yes.”

In substance, he stated it was the month of April or May he learned they were milking the cow—

“I never saw her any more after June; I next saw the cow on Grand river at John Henry Raper’s place; this was in the month of August; the black cow was marked swallow fork in right ear and smooth crop in left; when Ned and Pete James moved to the place the cow was around the place; I missed the cow in July; I asked some white man to take me to John Henry Raper’s to see if they could trace the cow; I did not entrust any of my cattle with Ned and Pete James, no, sir, they were milking one of the other cows but I had not agreed to anything with them.”

Considerable testimony is taken up in the record by the witness with reference to missing other cattle and hogs there at his place, which was objected to by the defendant, the objection sustained, and the court ordered the testimony stricken. Walasky was asked and answered the following questions:

“Q. Who was taking care of this stock while you were down on Saline Creek? A. I did not leave anyone to take care of the live stock while I was gone. As Pete and his family were staying there I allowed they would look after them.
“Q. Did you leave the stock there where you were living? A. Yes sir, there at my home.”

On cross-examination the witness was asked the following question and gave the following answer:

“Q. Did you turn this stock over to Pete James and Ned James and put them in their possession? A. No sir, I did not.”

There were quite a bunch of the James family; Pete and his wife Jennie, Ned and John' and some small children ; Jennie James milked the cow. “There was no agreement between Ned James and me with referenc to letting Jennie milk the cow.”

“Q. You do not know that Ned James ever assumed any control of them from the time they moved there until the cow was gone? A. No, sir.
“Q. I believe you stated when asked the question, who was taking care of this stuff, ‘I did not leave it with anyone,’ Is that correct? A. Yes, I did.
“Q. I believe when the question was asked you, ‘Did you entrust any other cows to Ned James’ you answered, ‘No.’ A. That is correct. I did not entrust my cattle to him.
“Q. You did not arrange with him at all? A. All the arrangement we had, he was to farm the field.”

On redirect examination:

“Q. Who was to feed your cow and stock while you were gone? A. No one, I just left the stock there when I went away.
“Q. Who did feed your stock before you went away? A. Myself.”

This is, in substance, the testimony of the prosecuting witness, the owner of the cow and calf alleged to have been embezzled. There is other testimony with reference to the cow being at the home place of the prosecuting witness, where the defendant Ned James and the other James family had been living. The cow and calf being-taken from the place and found at the Paper place.

The defendant, relying upon the question that the state did not offer sufficient testimony to establish the crime of embezzlement against the defendant, did not offer any evidence.

The defendant has assigned seven errors alleged to have been committed by the trial court. The first, second, third, and fifth errors will be considered together, as they relate to the question of the sufficiency of the evidence against the defendant to sustain a conviction for embezzlement. The first assignment being, the verdict is not sustained by sufficient evidence; second, the verdict is con trary to law; third, the verdict is contrary to both the law and the evidence; and, fifth, the court erred in refusing to sustain the demurrer of the plaintiff in error to the evidence offered on the part of the state, at the close of the evidence on the part of the state.

Section 2121, O. O. S. 1921, defines embezzlement as follows:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”

It is clearly shown by the testimony in this this case that the prosecuting witness rented his place to Pete and Ned James for the purpose of cultivating the farm land; that at the time they moved on the place the prosecuting witness had some live stock consisting of cows, hogs, and some chickens; that the prosecuting witness for a time after the defendant and the James family moved on the place looked after his own stock. He testifies the only arrangement he had with the defendant in this case was to cultivate the land, and that he did no-t entrust his stock to this defendant. There is some testimony showing that Jennie James, the wife of Pete James, milked the cow some time during the summer, but there is no testimony showing the defendant in this case in any way whatever had anything to do with the milking of the co/w or exercised any possession over her. The evidence fails to establish a relation between this defendant and owner of the cow whereby this defendant exercised any possession or control over the property alleged to have been embezzled.

Under onr criminal procedure, a new trial should be granted when the verdict is contrary to the law or the evidence. The responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to' allow the verdict to stand is imposed first, upon the trial court, and second, on appeal upon this court. 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 charged with a crime and placed on trial. Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175.

On a consideration of the evidence, we are of the opinion that there is no competent or legal evidence to warrant the trial court in submitting the case to the jury upon a charge of embezzlement.

The judgment is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    CHARLEY LEWIS v. STATE.
    No. A-7113.
    Opinion Filed June 14, 1930.
    (289 Pac. 786.)

      Garrett & Jeter, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error herein was convicted in the district court of Greer county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years.

The appeal in this case was lodged in this court on the 10th day of July, 1928. No briefs have been filed on behalf of plaintiff in error, and the cause was submitted on the oral argument of counsel for plaintiff in error.

The petition in error recites two grounds for a reversal of this judgment, the first being that the verdict is contrary to the evidence. A careful examination of the record discloses sufficient evidence to support the verdict of the jury.

It is also urged that the court committed error in overruling the motion for new trial because of misconduct of the county attorney in his closing arguments to the jury. The record fails to disclose the statements made by the county attorney in his closing argument, • any finding of the court as to what was said, any objections taken by plaintiff in error to the statements made, and counsel admit in their petition in error that they did not object to the statements at the time. The uniform holding of this court is that the state of the record in this case presents no question for the consideration of this court on íhe point involved.

No error being apparent in file entire record, the cause is affirmed.


text:
    BRACY HUDSON v. STATE.
    No. A-6957.
    Opinion Filed April 12, 1930.
    Rehearing Denied June 14, 1930.
    (288 Pac. 500.)
    H. W. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was charged with murder, and convicted of manslaughter in the first degree, and his punishment fixed at confinement in the penitentiary for a period of four years. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

The testimony on behalf of the state shows that the defendant and the deceased, Dick Ferguson, lived near each other in the town of Anadarko; that the deceased had a lot adjoining him, and a controversy arose between them over the fact that the defendant was hanging a coat on the fence of the deceased; on the day of the trouble the defendant came home from his work about 5 o’clock in the afternoon, and a short while thereafter the deceased came out and called the defendant, and they had a controversy over the defendant hanging his coat on the fence of the deceased; deceased went back into his house and came out with a shotgun, and immediately thereafter the shooting began.

The testimony on behalf of the state shows that the deceased had fired two shots from his double-barrel shotgun; he started away from the scene of the shooting, and defendant shot the deceased and he fell to the ground; that when witnesses who were living near to the parties reached the deceased he told them: “He got me. I am shot in the back.” All of the testimony of the state shows that the deceased and the defendant entered into a voluntary combat, and that when the deceased had discharged all the shells he had in his gun he started away from the scene of the difficulty; as he was going away the shot was fired by the defendant which took effect in the body of the deceased, and he fell to the ground unable to walk, and thereafter died from the effects of his wounds.

The testimony on behalf of the state further tends to show that some threats had been made by the defendant that he was going to buy the property where he was living and lead the old man a hell of a cat’s life.

On behalf of the defendant, the testimony tends to show that the defendant came home from his work in the afternoon and ate his supper, got his paper, and went out on the porch to read; the deceased called to him to come out, and made some remark to him, and the defendant told him he would come out after he got a drink of water; the defendant went back in the house and claims to have gotten the drink of water and put his pistol in his pocket before going back outside. The testimony of the defendant all tends to show that the deceased had quit firing and had started away, running or walking away, when the fatal shot was fired. Some testimony suggested that the deceased still had his gun up in a position trying to shoot it when the defendant fired. There is no’ controversy in the testimony but that the difficulty arose about a coat the defendant hung upon the fence belonging to the deceased; that deceased had taken it down once or twice, and either the defendant or some one of the family had hung it back, and out of this controversy a feeling of enmity had grown up between the deceased and the defendant. The testmony is not in conflict as to the deceased walking away when the fatal shot was fired. There is no controversy in the testimony that both the deceased and the defendant fired shots.' The only question to be determined in this case is the question of whether or not the defendant was justified in firing the shot that took the life of the deceased.

The defendant claims that the court erred in prohibiting him from proving alleged threats of deceased against the defendant prior to the difficulty, and argues at length that he should have been permitted to prove the alleged threats made against the defendant, and also argues that the testimony shows that the deceased fired the first shot. After carefully reading the testimony, we hold the court did not err in excluding the threats that were undertaken to be proven by the defendant, for the reason that the testimony shows conclusively that the deceased fired one or two shots and that the defendant fired two or three shots, and that when the last shot was fired the deceased was either walking or running away; using in substance the language of the wife of the defendant he was running or walking away, and the testimony shows that the deceased was shot in the back and that the shot took effect and paralyzed his limbs so he could not walk. In this case there is less conflict in the testimony than usually appears in cases of this character, but that conflict is a question to be determined by the jury.

In Loudermilk v. State, 33 Okla. Cr. 146, 242 Pac. 1060, 1061, this court held:

“It would serve no useful purpose to give a synopsis of each witness’ testimony. All these witnesses were before the jury and the trial court. The jury after due consideration and deliberation decided the issues of fact adversely to the defendant. Where the evidence is conflicting and apparently irreconcilable, it was the exclusive province of the jury to determine whom of the witnesses to believe and whom to disbelieve or whose testimony to disregard, and it was a question for the jury and not for this court to say whether the testimony of the prosecutrix was worthy of belief. Where there is evidence, apparently credible, which if believed is sufficient to sustain the judgment, this court will not reverse a conviction on the sole ground of the insufficiency of the evidence.”

The testimony in this case is sufficient to authorize the court in submitting the case to the jury. The jury by its verdict found the defendant guilty. There is nothing in the record to justify this court in disturbing the verdict of the jury.

Finding no error in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    W. E. STEWART v. STATE.
    No. A-7533.
    Opinion Filed June 5, 1930.
    Rehearing Denied June 21, 1930.
    (288 Pac. 990.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of selling one-half pint of whisky and sentenced to imprisonment in the county jail for thirty days, and to pay a fine of fifty dollars and cost, from which judgment and sentence the defendant has appealed.

Petition in error and case-made was filed in this court on August 30, 1929. Time has been extended for plaintiff in error to file brief in this case from time to time; the last extension given plaintiff in error to file brief expired on the 30th day of May, 1930. No further personal appearance has been made by the defendant, nor any further extension of time asked to file brief in support of his assignments of error.

Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record and find the information properly charged an offense; that the defendant was accorded a fair and impartial trial. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.


author: DAYENPOET, J.

text:
    H. E. CARGILL v. STATE.
    No. 7303.
    Opinion Filed May 17, 1930.
    Rehearing Denied June 21, 1930.
    (289 Pac. 987.)
    Tom Payne, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAYENPOET, J.

The plaintiff in error, hereinafter called the defendant, was convicted of grand larceny, and sentenced to serve a term of two years in the penitentiary. From the judgment, the defendant has appealed to this court.

The sentence was imposed upon the defendant on the 8th day of September, 1928; petition in error and case-made was filed in this court on the 6th day of March, 1929. No brief has been filed in support of the errors assigned, nor has there been any personal appearance or argument submitted in support of the assignments.

The record has been carefully examined in this case, and we find that the information was sufficient to charge an offense of grand larceny, that the testimony is suffi-ficient to show the defendant guilty, and that the defendant was accorded a fair and impartial trial.

Where no brief is filed, and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned.

No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    REUBEN ROLEY v. STATE.
    No. A-7135.
    Opinion Filed June 21, 1930.
    (290 Pac. 195.)

      F. E. Sides and F. H. Woodard, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Renben Roley, plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of the crime of perjury and sentenced to serve a term of five years’ imprisonment in the state penitentiary.

This prosecution resulted from the alleged false swearing of the defendant as a witness for Arthur Birkes in his trial for murder in the district court of Noble county on the 9th day of September, 1927. It is alleged in the information that the defendant falsely testified in substance :

“* * * That immediately before the said Arthur Birkes fired the fatal shots into the body of Dr. Harry McQuown, that he, the said Dr. Harry McQuown, had turned around from his position facing the south to a position in which he faced the north and immediately thereupon took three or four steps towards the north with his back toward the south, and immediately after having taken the three or four steps toward the north, that he, the said Dr. Harry McQuown, suddenly whirled around and took three or four steps toward the south, and that as he took said three or four steps toward the south, he threw his right hand to the left side of his body near the waist line * * * that all of the foregoing statements made by this defendant were false and untrue and known by him to be false and untrue at the time they were made; that the same were intentionally, falsely, corruptly and willfully made by this defendant, and that such testimony was material in said trial to the plea of self-defense as interposed by the said Arthur Birkes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The information charged the defendant in effect with swearing falsely, willfully, and corruptly in Birkes’ trial to a state of facts tending to make the deceased, Dr. Mc-Quown, the aggressor against the said Birkes at the time of the killing of McQuown by Birkes, and that said evidence was material to the issue of self-defense interposed by Birkes as a justification for taking the life of Mc-Quown.

In the Birkes trial defendant testified that he witnessed the killing of McQuown by Birkes; that he drove to the scene of such killing in a Graham truck from Ton-kawa, Okla.; that he parked said truck on the street within fifty or seventy-five feet of the scene of the killing and sat in the truck and saw the tragedy enacted as alleged in the information. The state alleges that all this testimony was false and untrue and known by the defendant to be false and untrue at the time he gave it; that the statements were intentionally, falsely, corruptly, and willfully made by defendant, and that such testimony was made in said trial to the plea of self-defense as interposed by Arthur Birkes in his trial for the murder of Dr. Mc-Quown.

The defendant alleges numerous grounds of error, but for the purposes of this opinion it will only be necessary to pass upon one. No. 13 of the court’s instructions reads as follows:

“You are instructed that if you find the defendant . guilty you must also by your verdict assess his punishment, which under the law would be by imprisonment in the state penitentiary for not less than five years nor more than ten years.”

Defendant was prosecuted under section 1636, Comp. Stat. 1921, which reads as follows:

“Perjury is punishable by imprisonment in the penitentiary as follows:
“First. When committed on the trial of an indictment for felony, by imprisonment not less than ten years nor more than twenty years.
“Second. When committed on any other trial or proceeding in a court of justice, by imprisonment for not less than five nor more than ten years.
“Third. In all other cases by imprisonment not more than five years.”

Under this section the minimum punishment in the case at bar was ten years. This court had under consideration this precise question in the case of Washburn v. State, 47 Okla. Cr. 321, 288 Pac. 371. In a very well-considered opinion, Judge Edwards, speaking for the court, held, in substance, that the minimum punishment in case like the one at bar was ten years, and the Washburn Case was reversed because the court gave, in substance, the same instruction that the trial court gave in the case at bar. For a full discussion of the principle involved, see Washburn v. State, supra.

We are not unmindful of the discussion and decision of the above question in the case of Arnold v. State, 48. Okla. Cr.-, 132 Pac. 1123. In that case, Judge Fur-man, speaking for the court, in the body of the opinion, at page 1126 of 132 Pac., said:

“There are no degrees of perjury in Oklahoma, but the punishment is divided into three classifications: First. When committed on the trial of an indictment for a felony, by imprisonment not less than 10 years nor more than 20 years. This provision of the statute is free from ambiguity and is not susceptible of two constructions. To subject a person to punishment under this provision the perjury must have been committed on the trial of an indictment for felony. This is the plain letter of the law and by it we are bound. It was a clear oversight on the part of the committee revising the Code and of the Legislature in not providing that punishment in such cases should be inflicted for perjury committed ‘on the trial of an indictment or information.’ But the word “information’ is not used, and this court has no right to insert it, for our powers are judicial alone.”

A careful analysis of Arnold v. State, supra, reveals that the question decided was not an issue in the case. However, the proposition of law therein stated is in direct conflict with the case of Washburn v. State, supra, and is hereby expressly overruled.

In the case of Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862, this court said:

“A trial court has no authority to authorize the jury by his instructions to fix any punishment other than that provided by the statute. Where the court, in its instructions, submits to the jury a smaller penalty for the offense than that prescribed by law, and where the defendant excepts to such instruction and objects to the giving of the same, and where a smaller penalty is assessed by the jury than that fixed by law, the cause will be reversed.”

The court having erroneously instructed the jury as to the penalty, and the defendant having saved his exceptions thereto and having alleged the giving of such instruction as error in his motion for new trial, the cause must be reversed.

Defendant contends that the court erred in its refusal to permit witnesses Jim Miller and Fred Piper to testify in behalf of and in corroboration of defendant relative to- statements made by defendant to said witnesses upon his return home to Tonkawa, to wit: That defendant witnessed the killing of Dr. McQuown by Arthur Birkes. The state having made an issue of the fact that defendant was not in the town of Red Rook at the time the crime was committed and could not have witnessed the things he testified to, it became very material for the defendant to show that immediately on his return home he had told friends and neighbors about seeing the commission of the crime and of the facts in connection therewith. On a retrial of the case, the court should permit the defendant to make this proof if he can.

Because of the error of the court in giving the erroneous instructions complained of, the cause is reversed and remanded, with directions to proceed in accordance with this opinion.

EDWARDS, P. J., concurs.

DAVENPORT, J., dissents as to the overruling of Arnold v. State, supra.


text:
    W. L. SANDERS et al. v. STATE.
    No. A-7139.
    Opinion Filed June 21, 1930.
    (289 Pac. 798.)

      W. N. Maben and Errol Joyce, for plaintiff in error.
    The Attorney General and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendants, were convicted in the district court of Tulsa county of the crime of robbery with firearms, and their punishments fixed by the jury at life imprisonment In the state penitentiary for each of them.

A lengthy and able brief was filed in this case in behalf of the defendants. Numerous questions are presented and urged as grounds for reversal, among which is the failure of the trial court to give an instruction on the question of whether or not the defendant Della Sanders, who is the wife of the defendant W. L. Sanders, participated in this crime while under duress of her husband as provided for in sections 1514 to 1516, C. O. S. 1921. No instruction was requested by the defendant Della Sanders on this issue.

The Attorney General confesses error in the state’s brief upon the failure of the trial court to instruct the jury on the law relative to an inference of duress arising where the wife participated in a robbery “in the presence and with the assent of her husband.” The question of duress arises from the testimony of the witnesses upon whom the state asks that a conviction be based. The accomplice, H. H. Troglin, testified that he and the defendant W. L. Sanders planned the robbery of Dr. Smith, and, according to Troglin’s testimony, the defendant Della Sanders’ participation in it was at all times “in the presence of and Avitb the assent of her husband,” W. L. Sanders. To the same effect is the testimony of May Busse, the other state’s witness, who testified as to the defendant Della Sanders’ connection with the crime.

In the state’s brief the Attorney General sums up his conclusions in the following language:

“Therefore, in the opinion of the Attorney General, before the jury should have been permitted to have convicted Della Sanders in this case they should have been instructed on the law relative to an inference of duress arising where the wife participated in a robbery fin the presence and with the assent of her husband.’ ”

In support of this proposition the Attorney General quotes from Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375; Brock v. State, 6 Okla. Cr. 24, 115 Pac. 1026; McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673; Nelson v. State, 34 Okla. Cr. 187, 245 Pac. 1009. This court agrees with the Attorney General that the evidence of the state clearly raises the issue of duress by reason of coverture and that the trial court should have instructed on this issue, whether requested to do so or not. Where the issue of duress by reason of coverture is surrounded by doubt and the state’s evidence tends to rebut it rather than support it, it would not be error to fail to instruct thereon, especially in the absence of any request therefor. Whether the issues require such an instruction depends upon the evidence in each particular case, and the failure to give such instruction would not be reversible error in every case where a wife committed a crime jointly with her husband, but only where the evidence is clear that the crime was committed, if at all, “in the presence and with the assent of her husband,” and the crime is not included within the exceptions of section 1516, supra. For the reasons stated, tbe cause will be reversed and remanded as to the defendant Della Sanders for failure to give an instruction upon the inference of duress because of the wife’s participation in the crime “in the presence and with the assent of her husband.”

Counsel for defendant W. L. Sanders allege numerous errors in their brief, and have ably argued the same. But the court is of the opinion that none of the errors complained of are of sufficient merit to require a reversal of the case. Every question raised by the defendant has been passed on many times by this court, and adversely to- the contentions of the defendant. According to the confession of H. H. Troglin, the accomplice, the defendant W. L. Sanders helped him plan the robbery and drove him in his car to the place where the actual robbery was committed; that the defendants Sanders sat in the car while Troglin went into the drug store and by the use of a pistol robbed Dr. Smith of a diamond and some other property. Upon Troglin’s plea of guilty, the court sentenced him to fifteen years in the penitentiary, while the jury fixed the punishment of the defendants Sanders at life in the penitentiary.

The Attorney General in his brief says:

“Life imprisonment for one who did not actually commit the physical act of robbing and whose conviction rests largely upon the testimony of an accomplice impresses one as unusually severe and out of the ordinary. If this court after an examination of the record reaches the conclusion we have reached in this respect of course a modification of the judgment as to W. L. Sanders will follow.”

The Attorney General believes, therefore, that the judgment as to W. L. Sanders should be- modified and affirmed. The prosecution of the defendants was bitterly contested in the trial of the case. Under such circumstances it would be almost a miracle if no error occurred. There are minor errors in the record, but they are not of such a nature as would require a reversal of the case as to W. L. Sanders. The court is of the opinion that the punishment is excessive, and agress with the Attorney General that the judgment should be modified and affirmed as to defendant W. L. Sanders.

The punishment of W. L. Sanders is reduced from life to 20 years’ imprisonment in the penitentiary at Mc-Alester, and, as modified, is affirmed.

EDWABDS, P. J., and DAVENPOBT. J., concur.


text:
    DEWEY PRUITT v. STATE.
    No. A-7445.
    Opinion Filed June 21, 1930.
    (289 Pac. 800.)
    John L. Hodge, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having unlawful possession of whisky, and his punishment fixed by the jury at a fine of $50, and confinement in the county jail for a period of thirty days.

The state obtained a search warrant to search the buildings and premises located on lots 7 and 8' in block 13, in the South part of Healdton, Carter county, while the evidence showed that the state searched lots 7 and 8 in block 8 in the city of Healdton, and that the liquor seized was obtained by searching the latter premises.

The defendant objected to the introduction of the evidence so obtained, for the reason that the search and seizure was illegal as being without authority of law. Evidence obtained in the search of premises other than those described in the search warrant is inadmissible. Napier v. State, 47 Okla. 216, 287 Pac. 791.

The only evidence offered against the defendant being obtained by such illegal search, the cause is reversed.


author: EDWARDS, P. J.

text:
    L. G. LEWIS v. STATE.
    No. A-7602.
    Opinion Filed June 21, 1930.
    (289 Pac. 800.)
    Billingsley & Stanley, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary. The state has filed a motion to dismiss, from which it appears that defendant, after his conviction, was at large upon a supersedeas bond; that he has left the state of Oklahoma, is a fugitive; his whereabouts are unknown.

It is settled by many decisions of this court that where a defendant has been convicted and perfects an appeal to this court, this court will not consider his appeal unless he is where he can be made to respond to any judgment or order which may be rendered in the case. Where a defendant becomes a fugitive from justice pending the determination of his appeal, this court upon proper motion will dismiss the same.

The case is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.