author: DAVENPOBT, J.

text:
    CLEO QUICK v. STATE.
    No. A-9075.
    Dec. 5, 1936.
    (62 Pac. [2d] 1279.)
    Samuel G. Whitaker and S. H. Singleton, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder and his punishment fixed at imprisonment in the state penitentiary at hard labor for life. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant has appealed.

The testimony on behalf of the state in substance is as follows: Mrs. Maggie Gibbs, the wife of the deceased, stated:

“I came to Duncan with my husband and three sons; my husband left us to go to a barber shop on the east side of the railroad. The next time I saw him he was in the hospital, unconscious and gasping for breath. He was 55 years of age.”

Dewey Bowden stated:

“On the 14th day of September, 1935, I was in a little cafe about 12:30 or 1 o’clock in the afternoon operated by Mrs. Pearl Mullins, on the east side of the railroad tracks, and north of the barber shop. When I went in the cafe Mr. Gibbs was eating a dish of chilli; shortly after I lyent in Cleo Quick came in and stated he was hungry, and I invited him to have my bowl of chilli; Quick was talking in a loud and boisterous voice and had the appearance of having been drinking considerably. Mrs. Mullins asked him to be quiet and; not talk quite so- loud; he took •a bottle of whisky out of his pocket and set it on the table and asked the boys if they were mad at him and received the reply that they were not. Mr. Gibbs in substance stated, let’s be quiet and respect the place.’ The defendant replied to- the request of Mrs. Mullins or Mr. Gibbs that he thought as much of Mrs. Mullins as he did of his sister. When Mr. Gibbs finished eating the defendant got up facing Mr. Gibbs and hit Mr. Gibbs three times in the face, the third time he struck him Mr. Gibbs fell out of the door, the back of his head striking the concrete walk; the door he fell out of was several inches higher than the sidewalk; the defendant went out and picked ■Mr. Gibbs up and put him back in the cafe on the floor. Mrs. Mullins rushed out to call the officers; one of the boys went to the hatchery and got a bucket of water, and some one bathed’ Mr. Gibbs’ face with water; by this time there was blood on the floor near Mr. Gibb’s face and hands.”

Eoy Kerns testified on behalf of the state, and stated that:

“On the 14th of September, 1935, I was in the cafe in which W. D. Gibbs was killed; this cafe was operated by Mrs. Pearl Mullins. I had never met Mr. Gibbs but had known the defendant for approximately 18 months; I saw the fight.”

The testimony of Kerns is in substance the same as the testimony of Dewey Bowden, Kerns detailing the conversation that took place in the cafe.

Mrs. Mullins, in substance, stated that:

“The deceased, Mr. Gibbs, came to the cafe about 12 or 12:30, and ordered a dish of chilli and paid for it in advance, and was sitting on a stool eating when defendant came into the cafe using loud and hard language; I requested him once, and the deceased asked him to calm down and not to flash tbe whisky in my place of business as we might all get arrested. Mr. Gibbs, the deceased, was very orderly and joined me in a mild suggestion to the defendant that we all be quiet and respect the lady’s place of business as she was a friend of his. The defendant in substance replied that he thought as much of Mrs. Mullins as he did of his sister. Mr. Gibbs got up from where he was sitting and started to leave, and the defendant hit him three times about the face and head; when he struck the deceased the third time the deceased fell out of the door to the sidewalk; this sidewalk is about 18 inches below the door; some of the boys had gone for a bucket of water, and I went to the hatchery and called the officers. When I came back the defendant had deceased back on the floor in the cafe, and was standing' over him with his foot raised in a position as though he had stomped the deceased; there was blood on the floor near the deceased and also* on the stool.”

Slim Barnes, called as a witness, stated:

“I was about three or four steps from the cafe and saw the defendant beating the deceased, while the deceased was down on the floor; this was while the other two boys and Mrs. Mullins was out of the cafe; I called to the defendant and begged him not to do that any more, and he angrily said in substance that if I wanted some of it. to come on in; I heard dull thuds before I could see the parties that sounded to me like some one stomping on a body; it sounded to me just like the dull thuds I had heard when I saw a man at a carnival stomped.”

Mrs. Jim Bradley, testifying for the state, said:

“I was near the cafe when the deceased fell out of the door and heard the commotion; my husband had gone to the hatchery to buy some feed, and when he came out he got in the car. The defendant came by and asked my husband if we were officers, and if we wanted to see him.”

J. M. Bradley stated he was working for the Duncan Banner, and had gone to the hatchery to* buy some feed:

“After the defendant asked me and my wife if we were officers, and I told him we were not, he turned around and went back toward the cafe door. A fellow1 with a crippled arm ran up and told him he had better go away; the police were coming. The defendant replied, ‘I don’t care if they all come, I can whip them,’ and turned around and went into the building. I could see in the building from where I was sitting, through the windows; as he started into the building I stepped on my starter, and as I glanced in the window I saw some one was stomping somebody in there. I could see quite a distance down the body but could not see his feet; I could1 not see the body on the floor; it looked to me like he jumped up and down on the man three or four times. By this time I started backing out the car.”

The undertaker said the eyes, lips and back of the head of the deceased were badly beaten and swollen, and he had a bad cut on one eye. The physician who treated the deceased at the hospital stated one cut on the eye required four stitches; the back of the head was badly bruised. The cause of the death of the deceased was a hemorrhage of the brain, and that any or all of the licks on the back of the head, as indicated by the bruises, could have caused the hemorrhage. The deceased died about 5:45 p. m., on the 14th of September, 1935, the same day the defendant assaulted and beat him.

C. M. Mullins, the chief of police of Duncan, testified he went to the cafe and found the deceased on the floor of the cafe unconscious; “I afterwards found the defendant on the street and arrested him and took him to the jail; he was drunk at the time I placed him under arrest.”

Roy Waldrip stated:

“I took the defendant from the city jail to' the county jail; as we got to the top of the stairs he said, If that s-of — b is over there I am going to finish him up’; I turned him over to O. W. Lawson, the jailor.”

O. W. Lawson stated Waldrip came to the top of the stairs with the defendant; “Defendant was saying something about some one but I did not hear any name; I opened the cell and told him to go on in and be began to get rough, and said ‘g— damn you,’ and I hit him with the keys; I then took him to what is known as the little cell and left him there.”

The foregoing is the substance of the state’s testimony.

The defendant, testifying in his own behalf, stated:

“I live 11 miles east of town; on the 14th of September, 1935, I came to Duncan to cash a check; I indorsed the name of my father, by me, and cashed the check and bought a pair of overalls, and a half pint of whisky and drank it; this was about 9:30 or 10 o’clock. I later bought a pint of whisky, and a boy and I drove the truck outside the city limits to drink it; we went about a mile east; I took a couple of drinks and from that time on I do not remember anything that took place until I was up in jail. I do not know when I came to the jail; I have no recollection of anything that occurred at the restaurant; I am 19 years old.
“I did not know Mr. Gibbs, the deceased, had never seen him as far as I know; whatever I did it was unknowingly. I plead guilty once to a charge of forgery and served a term in the Reformatory at Granite. Since I served my time at Granite I have been working as a farm hand, and a.t different things; have only lost about ten days since the 19th day of June; do not remember being in the cafe run by Mrs. Pearl Mullins, nor do I remember seeing any one at the cafe, or any other place, after I drank the whisky out on the highway until I woke up and found I was in jail; from the time I drank the whisky on the country road until T woke up in jail I have no recollection whatever of where I was or what I did.”

The defendant in his assignment of errors alleges that in the trial of his case there were 13 errors committed by the trial court.

The defendant discusses first his sixth assignment, which is as follows:

“Said court erred in refusing to reduce the charge from murder to manslaughter, for the reason there is no evidence in the record to support the charge of murder.”

The defendant in tbis case was prosecuted for murder. As defined in section 2216, 0. ,S. 1931, which defines homicide to he murder in the following cases:

“First. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.

“Second. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

“Third. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

It is urged by the defendant that he was drunk at the time he committed the act; that he never knew the deceased before and therefore he could not possibly have a, premeditated design to effect the death of the deceased. It is further urged that he was so drunk he did not know what he was doing, and that his actions while in such a condition are not a fair criterion to' test whether or not the defendant had a depraved mind, and therefore brings the act within the definition of the statute.

It is further urged by the defendant that he committed the act while committing a breach of peace, and that a breach of peace is a misdemeanor and not a felony, and as the defendant was not engaged in the commission of a felony when he perpetrated the act for which he was tried, the act cannot be classified as murder as defined, by the statute, and if guilty at all he would not be guilty of anything other than manslaughter in the first degree. Citing Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, 920, L.R.A. 1915E, 1031, in which this court stated:

“A person who commits a homicide while so drunk as- to be incapable of forming a premeditated design to kill, if he had formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.”

In this case the defendant died from the effects of blows inflicted upon him by the defendant, as shown by the testimony, the defendant striking the deceased three times, the last time the deceased fell backwards out of the door of the cafe, and his head struck the concrete sidewalk 18 inches below where you stepped out of the door of the cafe, and by stomping the deceased after he was down on the floor of the cafe.

The defendant directs the court’s attention to Beshirs v. State, 12 Okla. Cr. 605, 166 P. 73, 74, in which the court stated:

“The weapon used in the killing, was not a deadly one, and where the- weapon so used in killing a person is not one likely to kill, the killing is manslaughter, unless there was an actual intent and premeditated design to effect death.”

The defendant further presenting his argument on the question of the defendant’s intoxication, insisted that the testimony in his case is sufficient to show that the defendant was in such a state of intoxication as to not know what he was doing, and that by reason of his intoxicated condition the crime charged against him could) not be murder, but would be manslaughter in the first degree. Citing vol. 29 C. J. p. 1122, paragraph 110, in which it is stated:

“Manslaughter as defined at common law and under statutes simply declaratory thereof consists in the unlawful killing of another without malice, either express or implied. It is distinguished from murder by the absence of malice, and. from non-felonious homicide by the absence of circumstances excusing or justifying the tilling.”

In Galliher v. State, 56 Okla. Cr. 430, 42 Pac. (2d) 148, in the first paragraph of the syllabus the court said:

“Intoxication, either voluntary or involuntary is to be considered by the jury, in a prosecution for murder in which a premeditated design to effect death is essential, with reference to- its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death; and the question is for the jury to- determine.”

It is not disputed by the state, and the weight of authorities hold that intoxication, either voluntary or involuntary, is to be considered by the jury in a prosecution for murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, the absence of malice or premeditation may appear.

The defendant insists that the court’s instructions 12 and 13 are erroneous; that No. 12 is ambiguous and confusing, and prejudicial to the rights of the defendant in that it does not give to the jury any clear statement of the law upon which the jury could find a verdict. Instruction 12 complained of by the defendant is as follows:

“You are instructed, gentlemen, if you believe that at the time of the alleged commission of the act with which the defendant is charged, and for which he is now on trial before you, he was so intoxicated or temporarily insane from the recent use of intoxicating liquors as to render him incapable of forming a premeditated design to take the life of the deceased and entertaining malice, then you1 are charged that it could afford no excuse for the commission of the act charged against him, if the act was otherwise criminal, but such intoxication or temporary insanity, produced by the voluntary recent use of intoxicating spirits, and in that case should you find the defendant guilty of the offense charged against him, then your verdict should be manslaughter in the first degree.”

The defendant also complains of instruction 13, which is as follows:

“You are instructed that should you find and believe from the evidence, facts and circumstances in evidence, in this case, beyond a reasonable doubt, that in Stephens county, state of Oklahoma, the defendant Oleo Quick, did feloniously, without authority of law, and with premeditated design to effect the death of one W. D. Gibbs, on the 14th day of September, 1935, with his fist and feet, beat, strike and stomp the body of the said W. D. Gibbs, in the manner and form as charged in the information herein, inflicted upon the body of the said W. D. Gibbs, certain mortal wounds from which the said W. D. Gibbs, did die, you should then find the defendant guilty of murder and assess his punishment by death or by imprisonment in the state penitentiary, at hard labor, for life.”

While instructions 12 and 13 cannot be classed as model instructions, yet this court believes that they sufficiently cover the law on the question of defendant’s being intoxicated at the time of the commission of the alleged offense, and that the instructions were such as to advise the jury upon the law applicable to the facts in the case.

It is further argued by the defendant that instruction 13 improperly instructed the jury by telling it that it should find the defendant guilty of murder if it shouldi find that the defendant stomped the face and body of the deceased with his feet, the defendant insisting that there is no testimony tending to prove any stomping on the face or body of the deceased.

Slim Barnes in his testimony stated he was passing by the building in which the trouble occurred and sawi Mr. Gibbs’ body and that the defendant was standing bent over Gibbs; that he heard a couple of licks prior to the time I got to the door; “I asked the defendant not to do that any more, and he replied, ‘If you want some of it come on in.’ I did not go in. The licks I heard before I got to where I could see were just dull thud sounds.”

On cross-examination witness stated, “it sounded like blows on the flesh.” Questioned by Mr. Singleton he answered :

“Q. Mr. Barnes, did you ever remember hearing a blow like that? A. Yes, sir. Q. What occurred when you heard them? A. You mean, have I ever heard anything like that. I saw a man stomped at the Carnival that sounded like a dull thug, thug, thug.”

J. M. Bradley stated he was near the place where the difficulty occurred and had gone to the hatchery to get some feed; a lady came in and called the police; “when I came back to my car there was some commotion going on in the restaurant, a fellow came over to the side-of the car and asked me if I was the police. Cleo Quick is the man that came to my car; he turned and went directly toward the cafe door and entered the building; just! as I started my car I glanced through the windshield to the window and somebody was stomping some one in there; I could not see who it was on the floor; it looked like he struck three or four times; I could see the body of Quick distinctly through the west window.”

The testimony is undisputed and is amply sufficient to show that not only did the defendant knock the deceased down three times but that the deceased fell out through the door to the pavement, which pavement is 18 inches below the door entrance and that the defendant carried him back in the house, then left the room, but returned and stomped and beat the deceased. While engaged in the stomping of the deceased, the witness Slim Barnes asked him not to do that any more, and he invited Slim to come in if he wanted any of it.

The defendant has cited a, number of authorities and decisions of this court on the question that the verdict must be supported by the evidence. There is no dispute on the question that the verdict must be supported by the evidence, and if the record disclosed passion or prejudice on the part of the jury it would be an error, and the defendant would be entitled to' a new trial. The authorities cited by the defendant state a correct proposition of law when the facts in the case are applicable, but the only trouble is the facts in this case are not the same facts as in the cases cited by the defendant.

There is no justification offered by the defendant, nor does the record disclose any action on the part of the deceased that would warrant the defendant in assaulting him. The only defense offered by the defendant is that he was so intoxicated that he did not recollect ever having been at the restaurant, or that he struck, stomped, beat, and bruised the deceased; he knew nothing that took place from the time he and another young man drove out of the city limits and took a drink of liquor.

It is clearly shown by the witnesses that the defendant was sufficiently sober when he came to the cafe, that he said he was hungry and one of the boys offered to share his dish of chilli with him; that when he was requested by the lady running the restaurant, and the deceased, to not make so' much noise and respect the place, he replied that he thought as much of Mrs. Mullins, the proprietress, as he did of his sister; that after he struck the deceased and carried him back into the restaurant, he was sober enough when Slim Barnes came and asked him not to hit the old man any more to invite Slim to come in, if he wanted some of what he was giving the deceased. The defendant then left the room and went to Mr. Bradley’s car and asked if Mr. Bradley was an officer. Mr. Bradley saw him stomping some one, but could not see who it was because the body was on the floor out of Mr. Bradley’s vision.

In Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808, this court in the fourth paragraph of the syllabus said:

“(a) Where a defendant voluntarily and willfully enters into a mutual combat in which he intentionally takes the life of his adversary, such killing will be none the less murder or manslaughter because the difficulty arose suddenly, or because the defendant may have been reduced to imminent peril during, the progress of saidi difficulty.
“(b) It is the intention which prompts the act, and not the length of its duration which makes the unlawful killing of a human being criminal.
“(c) Every man is presumed in law to intend the natural and reasonable consequences of his acts, unless the circumstances raise a reasonable doubt as to what his intentions were.
“(d) Next to honor, human life is the most precious thing this side of heaven. No man with unhallowed hands can be permitted to intentionally break into the sacred house of life and shed its priceless stream and then come clear upon the ground that he acted only upon a sudden impulse or difficulty.
“(e) The intentional taking of human life can only be justified by the mandate of the law or upon the ground of necessity, but this necessity must not be caused by the intentional fault or wrongdoing of him who attempts to plead it.”

The testimony in this case is conclusive that the deceased met his death at the hands of the defendant without any justification or provocation by the deceased. The jury heard the testimony of the defendant and considered the same in connection with the testimony offered by the state, and after having done so, the jury was extremely liberal; it found the defendant guilty of murder and sentenced him to' imprisonment for life. The defendant was fortunate that the jury, after finding him guilty, did not impose the death penalty.

We have considered all the questions raised and argued by the attorneys for the defendant, and the attorneys have ably presented all the defense the facts would warrant. There is no question that the evidence in this case is sufficient to sustain the verdict and judgment. The instructions of the court cover every phase of the homicide and are fair to the defendant.

From a careful reading and study of the record, and; the instructions of the court, we conclude there are no errors in the record warranting a reversal.

The case is affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    L. L. WILLIS v. STATE.
    No. A-9109.
    Dec. 18, 1936.
    (63 Pac. [2d] 769.)
    I. L. Cook and Rowe Cook, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information, in this case filed in the district court of Atoka county July 15, 1935, charged that on or about July 13, 1935, L. L. Willis committed the crime of receiving stolen property. The charging words are: “The defendant did in said county and state at the date above named unlawfully, knowingly, willfully and feloniously buy and receive from Lonnie Mitchell and Wilsie Denwood .Shields, and each of them for a consideration of $6.65 good and lawful money of the IT. S. Of America, certain personal property, to wit: 16 shirts of the value of eighty five cents each, 5 blankets of the value of $2.50 each, which said property the said Lonnie Mitchell and Wilsie Denwood Shields and each of them had heretofore stolen from the state of Oklahoma, in the possession of O. P. Ray, superintendent of the subpeni-tentiary located near Stringtpwn, Oklahoma, contrary to,” etc.

Said information was signed by W. H. Parker, county attorney, and was verified as follows:

“State of Oklahoma,
“Atoka County — ss
“I, Paul Taylor being duly sworn on oath do state that the facts set forth in the foregoing information are true.
“Paul Taylor
“Subscribed and sworn to before me this 15th day of July, 1935.
“S. T. Sampler, court clerk.”

On his trial the jury returned a verdict finding him guilty as charged in the information and assessing his punishment at imprisonment for one year and one day in the penitentiary. Motions for new trial and in arrest of judgment were presented and overruled.

From the judgment rendered in . pursuance of the verdict on March 10, 1936, he appeals.

It appears from the record that, after the jury had been sworn to try the case and after the county attorney had made his opening statement to the jury, counsel for the defendant objected to the introduction of any evidence in the case, for the reason that the information "does not state facts sufficient to constitute a public offense. Thereupon, against the defendant’s objection, the •court permitted the county attorney to amend the information by the following interlineation: “Knowing the same to be stolen.” The defendant then ashed for a. continuance, which was overruled. Exceptions saved.

At the close of the state’s testimony the defendant interposed a demurrer to the same for the following reasons : That after the court permitted the county attorney to amend the information in substance it was not reveri-fied or refiled. And the defendant moved the court for a directed verdict of acquittal. Both the demurrer and! the motion were overruled. Exceptions saved.

The same questions were again raised in the motion for a new trial and motion in arrest of judgment.

The information in this case was based upon Penal Code (St. 1931, § 2265), which declares:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.”

There are no common-law crimes in Oklahoma, andi our statute does not include in its definition of the crime anything limiting its application to receiving stolen property from any person, and there may be prosecution therefor irrespective of the conviction of the thief, or of the question whether he is amenable to justice.

The particular thing denounced by the statute is the receiving of stolen property knowingly, and the crime of receiving stolen property, knowing the same to have been stolen, is made a substantive offense and not merely an accessorial one. Yeargain v. State, 57 Okla. Cr. 136, 45 Pac. (2d) 1113.

The original information in this case did not allege that the defendant received the alleged stolen property “knowing the same to have been stolen.” This essential element of the offense was omitted.

It follows that the amendment thereto was in matter of substance and not a mere matter of form. Before the amendment, the information was insufficient to charge a violation of section 2265, supra.

Generally speaking, when an information is amended in matters of substance after arraignment and plea, there must be a new arraignment and plea.

It is perhaps safe to say, however, on the one hand, that the power of amendment extends to formal matters which are not essential to the charge and mere clerical errors, etc., where defendant cannot be misled or prejudiced; but, on the other hand, any omission or misstatement which prevents an indictment or information from showing on its face that an offense has been committed, or from showing what offense it is intended to charge, is a defect in matter of substance which cannot be cured by amendment at the trial, or, in case of an indictment, by the court at any time where an indictment is necessary. 22 Cyc. 439, 440. Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087.

The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it contain every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.

If an information is to be amended, it should be done before the case goes to trial. It cannot be amended in matter of substance after the impaneling of the jury, and can be amended in matter of form only when such can be done without prejudice to the rights of the accused.

Our Procedure Criminal provides (St. 1931, § 2956):

“When the objections mentioned in section 5791 (2948) appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.”

Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. Seay v. State, 29 Okla. Cr. 189, 233 P. 766; Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277; Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701.

It follows from what has been said that the court erred in overruling the defendant’s objection to the introduction of evidence on the ground that the information! did not state facts sufficient to constitute a public offense.

Because of the errors pointed out, the judgment is reversed.

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


text:
    SAM GORUM v. STATE.
    No. A-9120.
    Dec. 18, 1936.
    (63 Pac. [2d] 765.)

      Long & Presson and Bishop, Bishop & Seay, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon information filed in the county court of Seminole county, charging that in said county on or about the 19th of September, 1985, Sam Gorum, the defendant, did then and there unlawfully have in his possession 1,050 pints of whisky and gin, with the unlawful intent to sell, convey, or otherwise unlawfully dispose of the same, he was tried and convicted. Motion for new trial was duly filed and overruled. January 20, 1936, the court entered judgment in accordance with the verdict of the jury and sentenced him to confinement in the county jail for a period of 60 days and to pay a fine of $300 and all costs, and in default of payment of fine and costs further confinement in said jail until the same is satisfied as by law provided. From the judgment he appeals and assigns as error that the verdict is contrary to the law and the evidence.

The undisputed evidence for the state shows that on the date alleged George .Snider and Charley Cannon, deputy sheriffs, in serving a search warrant went to the Dave Coker farm about four miles west of Seminole and searched the premises. The farm and family residence was occupied by Edna Brown and her sisters and brothers, children of Dave Coker. There was another house on the premises which had formerly been a residence but was no longer occupied as such and had been rented. In this building the officers found 1,050 pints of whisky and other intoxicating liquors.

Edna Brown testified that she first rented this house to a man named “Dago” Morgan, who paid the rent for only one month, after which the house was rented to a man introduced to her as Sam Gorum, who paid the rent for four months, including the month of September, 1935, and who paid the rent the first of each month in advance; that he always came to her home after dark and she never saw him except in the dark; that he had a key to the house which he kept locked with a Yale padlock; that the house was empty before he rented it. On cross-examination she stated that she would not be positive that the defendant, Sam Gorum, was the man that paid her the rent.

Charles Steph testified that he was jailor for Seminole county; that on September 19, 1935, two deputy sheriffs delivered a quantity of liquor to the jail, and a day or two later the defendant, Gorum, visited the jail and talked to him about this liquor, saying that he had an invoice of the whisky and that it was five cases short; he said there should be some cognac and Canadian Club whisky that was not there. He testified further as follows :

“Q. What else did he say about liquor in the course of that conversation? A. He said he had a plant in Seminole that was hot and that he was moving it out there to this plant and if Mr. Snider had been a little later in getting there he would have caught him with more whisky.”

George Snider testified that he was the officer that made the seizure of said liquors; that two or three days later in the First National Bank in Seminole he had a conversation with the defendant about this liquor, in which he told the defendant that he had heard the defendant had said he was short four or five cases of whisky, the defendant answered: “Yes, I would like to have the four or five cases that you didn’t bring down.”

When the state closed its testimony, the defendant interposed a demurrer to the same on the ground and for the reason that the same is wholly insufficient to support the charge of unlawful possession of intoxicating liquor as charged in the information, which demurrer was overruled. The defendant then moved for a directed verdict, which motion was overruled and exceptions saved.

Counsel for appellant in their brief say:

“We seriously contend that the corpus delicti, that is, the possession of the whisky was not proven by legal evidence save and except the extrajudicial statement of the defendant and for this reason there is not sufficient proof of the corpus delicti and we further urge that ali the evidence attempts to prove the corpus delicti solely and only by the extrajudicial statement of the defendant. Citing Boyle v. State, 27 Okla. Cr. 196, 226 Pac. 889, wherein it is said: ‘It is a well-settled rule in this state that a conviction cannot be had on the extrajudicial confession of the defendant, without evidence aliunde of the corpus delicti.’ Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Choate v. State, 12 Okla. Cr. 560, 160 Pac. 54, L. R. A. 1917A, 1287; Waide 1. State, 13 Okla. Cr. 165, 162 Pac. 1139; Henry v. State, 14 Okla. Cr. 189, 169 Pac. 658; Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; Smith v. State, 47 Okla. Cr. 184, 287 Pac. 835.”

Under our Procedure Criminal (section 3120, St. 1931) a new trial shall be granted “when the verdict is contrary to law or evidence.”

Under this provision the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to fender it safe to> allow the verdict to stand is imposed on the trial court in the first instance and on appeal upon this court.

That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession ; the confession being admitted merely for the purpose of connecting the accused with the offense charged.

In the instant case the evidence clearly estalishes the actual commission of the offense charged. The confessions of the defendant were voluntarily made and were properly admitted. The corpus delicti may be established] without showing that the crime charged was committed by the defendant.

In Green v. State, 7 Okla. Cr. 194, 122 Pac. 1108, this court held:

“In every criminal prosecution, it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused.” HeldJ further: “The ‘corpus delicti’ means, when applied to any particular offense, the actual commission by some one of the particular offense charged.”

In Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, 1068, we said:

“This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus delicti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to which the confession relates has been committed. The court must decide in the first instance this question. However, the decision of the court does not bind the jury, as the province of the court in such particular is only to determine whether sufficient evidence has been adduced to go to the jury for their determination. In passing upon the evidence submitted to them the jury must first determine beyond a reasonable doubt that the crime has been committed; then they are at lib-érty to give the alleged confession such weight as it is entitled to, taking into consideration the circumstances, surrounding it and the extent to which it has been corroborated.”

It follows from what has been said that the defendant’s demurrer to the state’s evidence and his motion for a directed verdict of acquittal were both properly overruled.

The record discloses no- material error, and it appearing that the defendant had a fair and impartial trial, the judgment of the lower court is therefore affirmed.

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


author: DAVENPORT, J.

text:
    VAN BUREN GREEN et al. v. STATE.
    No. A-9113.
    Dec. 18, 1936.
    (63 Pac. [2d] 767.)
    Turner M. King, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen.j and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error were by information jointly charged with robbery by force and! fear, and were jointly tried, convicted, and each- sentenced to serve a term of twenty years in the state penitentiary. From which judgment and sentence, Van Burén Green and William Craven have appealed.

The testimony is very brief, W. F. Payne testifying he lived in Ada, Pontotoc county, Oída.; he was going down the street one evening and two colored boys came across the street toward him, one asked him if he had a match, and the other one grabbed him and pinned his arms down, and they by force and fear took his billfold containing a railroad pass and other papers.

Payne further stated the negroes then ran; that he reported to the police what had happened, and from the descriptions he gave the officers the boys were arrested and placed in jail. Payne went to the jail the next morning and by the voice of one, and the looks of the men, he identified them as being the two colored men who robbed him of his billfold containing a railroad pass and some papers the previous night. The prosecuting, witness is positive that the defendants are the parties who robbed him, and stated they put him in fear and by force robbed him, one of them holding him while the other took the billfold from his pocket.

The defendants deny they robbed the prosecuting witness Payne, and insist they were at another and different place at the time of the robbery. There is a direct conflict in the evidence, the prosecuting witness testifying positively to the defendants being the parties that robbed him, and the defendants denying they robbed him, or had! anything to do with his being robbed.

L. U. Bains, in rebuttal, stated in a conversation with tbe defendant Graven he told him that Van Burén Green is the one that took the purse.

The foregoing is the substance of all the testimony.

The defendants have assigned ten errors alleged to have been committed by the trial court. In their brief and arguments the defendants have presented their argument under three propositions:

“1. The verdict is contrary to the evidence.
“2. The court- erred in overruling their demurrer to the evidence of the state.
“3. The court erred in overruling their motion for a new trial.”

In the presentation of these three propositions by the defendants, their argument is directed exclusively to the insufficiency of the evidence to sustain a conviction. No complaint is made of the court’s instructions, or on any question raised in the assignments, but the question that the evidence is insufficient to sustain a verdict, and the court should have sustained their demurrer to the evidence and directed a verdict of acquittal.

In presenting their argument, they cite in support of the same, Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914. An examination of the authority cited shows that if there is any evidence, although it may be conflicting, from which a jury would reasonably or logically draw the conclusion of the defendants’ guilt, this court will not disturb the verdict.

It is likewise true and well settled by this court that where there is no evidence to support a verdict, or where it is of such a weak and inconclusive character that a conclusion of guilty may not reasonably be drawn from it, or there is a failure to prove some essential matter to establish the offense charged, it is the duty of the court to set aside such verdict as contrary to the evidence. In this case, the prosecuting witness was robbed of his billfold by force, and he identified positively the defendants in this case as being the two negroes who- robbed him. The defendants deny they committed the offense and plead! an alibi that they were at another and different place at the time the prosecuting, witness alleges he was robbed.

A conflict in the testimony is a question for the jury under proper instructions of the court. In Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075, this court in the first paragraph of the syllabus stated:

“Conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of conflicts in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.”

This court in the following cases reaffirmed its holding in the case of Adams v. State, supra: Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954; Coats v. State, 56 Okla. Cr. 26, 32 Pac. (2d) 955; Kisselburg, v. State, 56 Okla. Cr. 46, 33 Pac. (2d) 236; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

There are no errors in the record warranting a reversal. The evidence is sufficient to sustain a conviction, but after a careful consideration and reading of the record, we believe the punishment imposed is excessive and should be modified from twenty years in the state penitentiary to ten years, and, as modified, the judgment is affirmed.

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


author: PER CURIAM.

text:
    Ex parte ROOSEVELT POWELL.
    No. A-9220.
    Dec. 18, 1936.
    (63 Pac. [2d] 771.)
    Roosevelt Powell, pro se.
    Mac Q. Williamson, Atty. Gen., and Jess, L. Pullen, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original petition in ha-beas corpus. The petitioner alleges that he is unlawfully restrained by the warden of the penitentiary by virtue of a conviction in Lincoln county, Okla., on a charge of grand larceny; that he has been denied due process of law as guaranteed to him by the Constitution of the state of Oklahoma, and the United States. And that he has been denied the advice of counsel and compulsory process for obtaining witnesses. Upon the allegations of the' petition, the court declined to issue a writ, but issued a rule to show cause.

The warden of the state penitentiary has filed a return to the rule to show cause, and has attached hereto various exhibits, including a certified copy of the testimony taken and the judgment of the court, and a record of the trial as kept by the clerk of the district court. From all of which it is conclusively made to appear that there is no merit whatever in petitioner’s contention.

The record shows that the defendant in the trial of his case was represented by able counsel, and the minutes of the court show that the trial was regular, and that he was accorded a fair and impartial trial according to the forms of law.

The writ is therefore denied.


text:
    Ex parte EARNEST McDONALD.
    No. A-9227.
    Dec. 18, 1936.
    (63 Pac. [2d] 772.)
    Earnest McDonald, pro se.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the penitentiary by virtue of a conviction in Logan county on a charge of rape in the first degree. That petitioner was denied due process of law in that he was denied compulsory process for obtaining witnesses and was denied the assistance of counsel in his defense. Upon such showing this court declined to issue the writ, but issued a rule to show cause.

.The warden of the penitentiary has filed a return to the rule to show cause and has attached thereto various exhibits, including a certified copy of the judgment of conviction and of the record of the trial, and in addition has filed an affidavit of the attorney who represented petitioner in his trial, from all of which it is conclusively made to appear that there is no merit whatever in petitioner’s contention. To. the contrary, he was, fairly tried, according to the forms of law.

The writ is therefore denied.


author: GIBSON, S. J.

text:
    E. M. LANDRUM v. STATE.
    No. A-9024.
    Aug. 7, 1936.
    Rehearing Denied Dec. 31, 1936.
    (63 Pac. [2d] 994.)
    Jesse L. Ballard, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., and S. H. Lattimore, Asst. Atty. Gen., for tbe State.
   GIBSON, S. J.

The plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Craig county of the crime of embezzlement, and his punishment was fixed by the court at a fine of $32,-086.55, and imprisonment in the state penitentiary for a period of five years.

The information, omitting the formal parts, charges “that E. M. Landrum and Ralph J. Hutchman, did, in Craig County, in the state of Oklahoma, on or about the 1st day of July, in the year of our Lord, One Thousand Nine Hundred and Thirty Pour, and anterior to the presentment hereof, commit the crime of embezzlement of public funds, in the manner and form as follows, to wit:

“That the said E. M. Landrum and Ralph J. Hutch-man, in the County and State aforesaid, on the 1st day of July, 1934, did knowingly, willfully, unlawfully, wrongfully and feloniously commit the crime of embezzlement in the manner and form as follows, to wit: That the said E. M. Landrum in the county and state aforesaid, on or about the 1st day of July, 1934, was the duly elected, qualified and acting county treasurer of Craig county, state of Oklahoma, and as such county treasurer was charged and entrusted with the collection, receipt, safekeeping, transfer and disbursement of all public money belonging to said county of Craig, state of Oklahoma, and to divers persons, firms and corporations, their names being unknown, and of all other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by him by virtue of his said office of county treasurer of Craig county, Okla., for safekeeping, transfer and disbursement, and acting, charged and entrusted as aforesaid, was entrusted and charged , with and did in said county and state aforesaid, on or about the 1st day of July, 1934, receive, have and hold in his possession and under his control, by virtue of his said office and for the pur-pose aforesaid, certain public money and! other funds, property, bonds, securities, assets and effects by Min received and collected as such county treasurer for taxes and other purposes and from various sources provided by law and which public money and other funds, property, bonds, securities, assets and effects were received and held by him for said county of Craig, state of Oklahoma, and municipal subdivisions of said county and divers persons, firms and corporations, their names being unknoAvn, in large sums the exact amount being unknown; that the said E. M. Landrum, and the said Ralph J. Hutch-man, on or about the 1st day of July, 1934, in the county of Craig and state of Oklahoma, and the said E. M. Lan-drum, then and there being, and then and there acting as such county treasurer and then and there being so charged and entrusted Avith the control,' disbursement, receipt, safekeeping and transfer of said public money, funds, property, securities, assets, bonds and effects aforesaid then being in his possession by virtue of his said office for safekeeping, transfer and disbursement, did then and there acting together, willfully, unlawfully, wrongfully and feloniously convert and appropriate to their own use and benefit and to a use and purpose not in the lawful execution of the aforesaid trust of him, the said E. M. Landrum, county treasurer of Craig county, Oklahoma, a part of said public money, funds, property, bonds, securities, assets and effects, received, controlled and held by him and entrusted to him, the said E. M. Landrum, county treasurer, by virtue of his said office, to wit: The sum of and to the amount of thirty five thousand eighty six and 55/100 dollars, and of the value of $35,086.55, good and laAvful money of the United States of America, a more particular description is as follows, to wit:
“$1,048.67 City of Sapulpa Bds. of 1922, due 1942.
“$9,000.00 Muskogee Bd. and Ed. Bonds due serially, 5-20-42 to 44.
“$2,037.88 Tulsa Park Imp. Bonds.
“$9,000.00 City of Sapulpa Bds. of 1922, due 1942.
“$7,000.00 Tulsa County Road Bonds, due 1945.
“$7,000.00 Town of Big Heart (Barnsdail) W. W. Bonds, due 1944.
and other public money, funds, property, bonds, securities, assets and effects, a further description being unknown, and the value thereof being unknown, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The record shows that the trial of this case was commenced on the 25th day of February, 1935, at Yinita, Okla. The trial resulted in the jury returning the following, verdict, omitting caption:

“We, the jury, impaneled and sworn in the above entitled cause, do upon our oaths find the defendant guilty as charged in the information herein, but cannot agree as to his punishment and ask the court to fix the punishment. I. L. Proudlove, Foreman.”

On the 7th day of May, 1935, the defendant filed a motion for a new trial, which motion was overruled and exception saved.

On the 18th day of May, 1935, the defendant filed his motion in arrest of judgment, wherein he alleges that the information is insufficient, and that the verdict is contrary to the law and the evidence, and did not give to the court jurisdiction to render judgment and pronounce sentence; which motion was overruled, exceptions saved, and a judgment was entered by the trial court in accordance with said verdict.

This case comes before this court upon twelve assignments of error by the defendant. No good purpose can he served by setting out these assignments in detail. Suffice it to say that they formulate the real issues in this case to be as follows :

1. Is the information duplicitous?

2. Does the information state a public offense?

3. Is the verdict in proper form to justify the sentence imposed?

The defendant was informed against under section 7761, O. S. 1931, which provides as follows:

“If any county treasurer, or other officer or person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money, or any part thereof, belonging, to the State or to any county, precinct, district, city, town or school district of the State, shall convert to his own use or to the use of any other person, body corporate or other association, in any way whatever, any of such public money, or any other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by such officer or person by virtue of such office or public trust for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or shall use the same by way of investment in any kind of security, stocks, loan property, land or merchandise, or in any other manner or form whatever; or shall loan the same, with or without interest, to any person, firm or corporation, except when authorized by law; or if any person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer, or other officer or person shall be deemed guilty of an embezzlement of so much of said money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid; and upon conviction thereof,. such county treasurer or other officer or person shall be sentenced to imprisonment in the penitentiary at hard labor for a. term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid; which fine shall operate as a judgment lien at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property as aforesaid, shall have been so embezzled; and in all cases such fines, so operating as a judgment, shall be released or entered as satisfied only by the person in interest, as aforesaid.”

It is the holding of this court in State v. Bunch, 28 Okla. Cr. 388, 214 Pac. 1093, 1094, that this section of the statutes is not, and never was, a part of our Criminal Code proper. It is a special penal statutory provision, designed to reach public officers who held or diverted public funds and securities, or funds held by such officers, officially belonging to> private individuals, or to firms or corporations, in violation of a public trust. R. O. Bunch, clerk of Grant county, Okla., was charged with embezzling funds of various ownership deposited with him by virtue of his office of public trust. This court held that it was not the misappropriation of any particular fund for which he was convicted, but the misappropriation of any fund in violation of his trust as a public officer. And that:

“It is not necessary in such a case to plead specifically a description of the individual items composing, the aggregate. The manifest purpose of this statute was to make a blanket provision covering any or all such delinquencies, constituting but one offense. Otherwise there is no excuse for this statute. If each item constituted a separate offense, to be separately pleaded and proved, then the provisions of section 2671, R. L. 1910, a section of the general Penal Code, would have been sufficient.”

Under the decision of this court as expressed in this case, the information is clearly good.

The information does state a public offense, in that it charges a misapplication of public funds which came into the hands of the defendant as county treasurer, and therefore the different ownership of different items charged to have been misappropriated did not need to be specifically charged or proved, the essential point being whether these items of property which came into the hands of the defendant as county treasurer were by him applied to uses not authorized by law. This the evidence shows is just what the defendant E. M. Landrum had done.

In State v. Bunch, supra, this court held:

“Where a statute makes it an offense to do this, that, or the other of several things, disjunctively, the whole may be charged as one offense, conjunctively, and the defendant may be found guilty of any one.”

In the body of the opinion, in Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092, this court said:

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

Defendant contends that proof of fraudulent intent must be made before a conviction of embezzlement can be had. It was not necessary to prove a criminal intent, as under the statutes such intent was presumed when funds held in trust by a county treasurer by virtue of his office, were applied other than as permitted by law.. And this court has so held in Cottrell v. State, 52 Okla. Cr. 375, 5 Pac. (2d) 178:

“Under section 9781, supra, the offense consists in the violation of the law, and not the intent or motive by which the public officer is actuated.”

Complaint is made by defendant as to the amount of the fine assessed, and objection is made that the amount of the fine would indicate that the embezzlement proved is one-half of the amount of the fine. But the record does not state how the court arrived at this figure.

Section 3107, Stat. Okla. 1931, provides that:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the .limitations fixed by law, and the court shall render a judgment according to such verdict.”

It does not appear that the defendant requested that the jury fix the punishment, and therefore he may not now complain that it did not.

Section 3108, Stat. Okla. 1931, provides that “where the jury find a verdict and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

The evidence might have justified a greater fine, and the defendant will not be heard to complain that the fine assessed against him is less than double the amount of the embezzlement charged and apparently proved to the satisfaction of the court and jury. If error was committed by the trial court in this regard, it was in favor of the defendant, and he will not be heard to complain of it.

The evidence supports the verdict of the jury, and the errors of law complained of are not sufficient to require a reversal of the case.

For the reasons stated, the cause is affirmed.

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


text:
    HARDY POWELL v. STATE.
    No. A-9032.
    Sept. 10, 1936.
    Rehearing Denied Dec. 31, 1936.
    (63 Pac. [2d] 113.)

      Frank Leslie, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen.,, and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was convicted in the district court of Tulsa county of murder and sentenced to life imprisonment. Motion for new triai ivas filed, and the record properly saved, and the defendant appeals.

The deceased and defendant were both negroes; they met at the home of Frankie Kelly; the defendant, his wife, and a negro by the name of Will Lawson went to the Kelly home prior to the time the deceased and a man by the name of Thomas came; when Thomas and Harry Golds-by came the other parties were all in the front room talking; Thomas and Goldsby came to the back door and knocked, and were admitted to the kitchen by Frankie Kelly who was cooking something in the kitchen-; when Goldsby came in he told Frankie he was hungry and she gave him something to eat; Goldsby took a bottle of gin from his pocket and put it on the table and wanted them to have a drink; Frankie called the other parties in the front room to- come and have a drink; Mary Johnson, the common-law wife of the defendant Hardy Powell, was in the room, and it was claimed by some of the witnesses that Harry Goldsby went in and got Mary and Frankie by the hand and pulled them into the kitchen for the purpose of having a drink; when they went into the kitchen the defendant in this case went into the middle door or somewhere near there, and claimed that the deceased Avas acting improperly toward his wife and using cuss words, and that he reprimanded him, and asked him to not use cuss words any more in the presence of the women, and the deceased applied some kind of a vile name or epithet to him, and that Mary Johnson got between the deceased and the defendant and kindly pushed him and told him not to do anything, and the defendant put his hand back toward his hip pocket, and was finally pushed back into the east room and the door between the two rooms was closed; immediately thereafter Frankie claims the door was partly opened and she claims to' have seen the muzzle of a pistol.

The testimony further shows that the deceased was the one who opened the door between the two rooms, and in the meantime before the door was opened the deceased hád picked up from the cabinet what the witnesses call a tack hammer. The proof shows the tack hammer was in the possession of the prosecution but was not introduced in evidence. No one gives the size of the hammer. The deceased started into the room where the defendant was, and as he got to the door or just into the room where the defendant was the defendant shot him, from the effects of which he died. The pistol fell out of the defendant’s hand and fired again but did no one an injury, the defendant contending that deceased, when he opened the door and started in the room where he was, knocked the pistol out of his hand.

The testimony of the state witnesses and the defendant’s is not in harmony, but in substance it is practically the same. It seems to have been a meeting of a bunch of negroes, all of whom had been drinking, and the deceased put the bottle of gin on the table and all of them took another drink; and from the action of the deceased and the remarks made in the presence of Mary Johnson and Frankie Kelly he aroused the anger of the defendant;

The state witness Frankie Kelly testified when the defendant was in the living room' with the door closed the deceased was pecking around with the tack hammer; Frankie says she knew the deceased was mad. Thomas thought the deceased was singing some kind of a song. All of the testimony of both the state and the defendant, and of the eyewitnesses for the state, shows that something transpired between the defendant and the deceased in the kitchen that caused the wife of the defendant tO' anticipate there was going to be trouble, and she pushed her husband, back in the living room and closed the door. The witnesses are not in harmony as to what caused the defendant to go back into the living room from the kitchen where the deceased was with the hammer, but they all admit the door was closed, and when the door was opened they all admit the deceased had started through the door when the defendant fired the shot.

Several witnesses were called by the defendant to show his previous good character for being a peaceable, law-abiding citizen. The defendant contends in his testimony that the deceased knocked the pistol out of his hand. The deceased and the defendant had never had any trouble before. The foregoing, is the substance of the testimony offered by the state and the defendant.

The defendant assigned a number of reasons why this case should be reversed, and argues most of them together. His first argument is, that the verdict is contrary to- the evidence, and is not supported by the evidence.

The killing is admitted by the defendant, but the defendant insists that it was a justifiable killing and that the defendant should be acquitted. The instructions of the court are not complained of, except the defendant offered some special instructions that were refused by the court, but an examination of the record clearly shows that the court covered all of the questions fully in its' instructions, therefore it was not error to refuse to give the special instructions requested by the defendant.

In presenting his argument and analyzing the same the defendant takes the position that he was not the aggressor in this trouble; that when he spoke to the deceased about the language he was using in the presence of the women the deceased used a violent and profane epithet, and picked up a hammer, designated as a tack hammer, and started toward the defendant. The defendant admits he reached back and threw the safety catch off his pistol; that the common-law wife of the defendant, Mary Johnson, got in between the deceased and defendant and told him not to do anything,, and gradually pushed him back until he was in the living room and the door was closed between the two rooms.

Frankie Kelly, a witness for the state, and all the other witnesses admit the door was closed or partly closed, and Frankie says when she looked toward the door it was open or partly open and she saw the muzzle of a pistol; at that time, or just before that time, she knew the deceased was mad; that he had picked up a hammer and was pecking around on a cabinet.

All through the record the hammer is spoken of as a tack hammer. Just what a tack hammer is, is not shown by the record, nor is the size of this hammer shown. The record does show the hammer was in possession of the state but was not introduced in evidence. This court will take judicial notice that tack hammers are of various sizes, there are small and large tack hammers, as well as small and large tacks. Under the evidence as to the tack hammer the court cannot say whether or not this hammer was a dangerous weapon. As the defendant had no knowledge of the size of the hammer, and only saw the hammer when the deceased started toward him with it, the question to> he decided is, how would it appear to the defendant situated as he was, and did he believe it was such a weapon that the deceased might do him bodily harm or kill him. Hammers properly wielded are dangerous weapons, and in the hands of a drunken negro no one can tell what injuries might be inflicted by the use of one.

The parties were practically strangers and had never had any trouble before. The killing occurred on the spur of the moment, and as shown by the record in a heat of passion and at least without premeditation or intention on the part of the defendant to commit murder. The defendant insists he fired the shot to keep the deceased from doing him great bodily harm or taking his life with the hammer he had in his hand. All of the testimony was submitted to the jury and the court in detail explained the different degrees of homicide of which the defendant might be convicted, defining murder and manslaughter in the first degree, and the jury returned a verdict of murder, fixing his, punishment at imprisonment for life. The defendant argues that the punishment fixed by the jury is excessive, and that he could not be guilty of the crime of murder; that a crime, if any was committed by him, was manslaughter in the first degree; that the conviction should be reduced from murder and life imprisonment to manslaughter and such sentence as the court might feel the facts warranted under the modification from murder with life imprisonment to manslaughter.

The next assignment argued by the defendant is: “The court erred in overruling, defendant’s objection to going to trial before the jury panel called for this criminal docket, for the reason that the defendant was a negro •citizen and that negro citizens were systematically excluded from the jury.”

When the case was called for trial both sides announced ready, and the defendant for the first time made an oral objection to being tried before the jury for the reason that negro citizens of Tulsa county had been systematically ruled off the jury panel. No proof was offered at the time to support the objection made by the defendant, nor was there any written motion filed by the defendant prior to the trial objecting to the jury panel and moving to quash the panel, or a plea in abatement on the ground that negroes had been excluded from the jury solely and only on the ground of their race and. color.

The Fourteenth Amendment to the Constitution of the United States is in part as follows:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Constitution of the state of Oklahoma declares that the Constitution of the United States is the supreme law of the land. The defendant, in his argument, insists that negroes were excluded from the jury service in Tulsa county solely and only bn th'e ground of their race and] color, and that by SO' doing they were discriminated against and deprived the defendant of his constitutional right, and that he did not have due process of law, citing in support of his contention Patterson v. Alabama, 294 U. S. 600, 55 S. Ct. 575, 79 L. Ed. 1082; Norris v. Alabama, 294 U. S. 587, 588, 55 S. Ct. 579, 79 L. Ed. 1074; and several other cases.

In each of the cases cited by the defendant the records shows that the motion to qnash the panel, or the indictment, or a plea in abatement was filed in writing before the case was called for trial, and testimony taken to show the allegations that negroes had been excluded from the jury panel solely and only on account of their race and color. The record in this case fails to show that the defendant at the proper time, before the case was called for trial, protected his rights as provided by the Constitution of the United States and the state of Oklahoma, and the decisions based thereon by the United States Supreme Court, therefore the cases cited by the defendant disclose a different state of facts to' the facts in this case, and the decisions are not in point.

The record shows when this case was called for trial both parties announced ready, and the defendant made an oral objection to going to trial on the ground that negroes had been excluded from the jury panel solely and only on account of their race and color; which objection was overruled, and exceptions saved, and the case proceeded to trial.'

In support of his motion for a new trial, the defendant offered testimony to show that negroes had been excluded from the jury panels in Tulsa county for many years. The courts are uniform in holding that, where an eligible class of persons are excluded from the petit jury panel, a challenge to the panel is the proper remedy of one whose interests are affected. There is no law requiring that negroes should be selected to sit upon juries. 35 C. J. p. 245; McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735.

The only law upon this subject is that negroes must not be excluded from the jury solely on account of their race or color. Under section 2982, O. S. 1931:

“A challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge,” Dumas v. State, 55 Okla. Cr. 43, 24 Pac. (2d) 359; Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; Watkins v. State, 49 Okla. Cr. 443, 295 Pac. 417.

Where an elgible class of persons is excluded from the petit jury panel, a challenge to the panel is the proper remedy of one whose interests are affected. 52 A. L. R. 923, 924.

In State v. Banner, 149 N. C. 519, 63 S. E. 84, the court said:

“A challenge to the array after plea of not guilty is too late.”
“A party cannot thus take chances on securing a favorable verdict, and afterwards object to the manner in which the jury was selected.”

In Tarrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, the United States Supreme Court held that .objection to the panels of grand jurors because of alleged discrimination against negroes must be taken by pleas in abatement in accordance with the settled rule of the state courts.

In Hicks v. State of Arkansas, 143 Ark. 158, 220 S. W. 308, the Supreme Court of Arkansas held the claim that defendants were discriminated against in that members of their race were not summoned to serve on either the grand or petit juries, and had not served for many years, was raised too late when first presented by a motion for a new trial.

In Hicks v. State of Arkansas, supra, a petition for a writ of certiorari was denied by the United States Supreme Court in 254 U. S. 630, 41 S. Ct. 7, 65 L. Ed. 447, which ruling was approved by this court in Mitchell v. State, 59 Okla. Cr. 345, 60 Pac. (2d) 631. The fact that there were no persons of African descent on the jury summoned for the purpose of trying the accused does not of itself show an exclusion of such person because of race or color. A person of African descent charged with crime cannot of right demand the kind of jury, some of which shall be of his or her race, nor is a jury of the kind guaranteed to any race by the Fourteenth Amendment to the Constitution.

In the case of Carrick v. State, 41 Okla. Cr. 336, 274 Pac. 896, 898, it appears Jewell Carrick, a colored girl, killed Henry Ausler, a colored man, by stabbing him to death with a knife. The jury returned a verdict finding the defendant Jewell Carrick guilty of murder and assessing her punishment at death. The judgment was reversed for error of the trial court in overruling the defendant’s challenge to the panel, for the reason that the facts in evidence were sufficient to sustain the motion to quash the panel of jurors, in that it appeared the jury commissioners had purposely excluded from the jury list, because of their color, citizens of the African race, qualified to perform jury service.

In the opinion it is said:

“It is well settled that a' denial to citizens of the African race solely on the ground of their race and color of the right or privilege accorded to white citizens of participating as jurors in the administration of justice is a discrimination contrary to the Fourteenth Amendment of the Constitution of the United States, which declares that: ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’
“The Constitution of the state of Oklahoma declares that: ‘The Constitution of the United Sates is the supreme law of the land.’ Const, art. 1, § 1.
“The Supreme Court of the United States has repeatedly held that a person of African descent accused of crime is denied the equal protection of the laws, contrary to the guaranty of the Fourteenth Amendment, if citizens of the African race are excluded from service upon the grand jury returning the indictment against him or the petit jury before whom he is placed upon trial solely because of their race or color. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664. And it makes no difference whether such exclusion because of race and color is effected by a statute or by the arbitrary and wrongful acts of the officers in the administration of the law. Gibson v. Mississippi, 162 U. S. 565, 16 S. Ct. 904, 40 L. Ed. 1075; Garter v. Texas, 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839.
“The fact that there were no persons of African descent upon the list of jurors selected by the jury commissioners, or summoned for the purpose of trying appellant does not of itself show the exclusion of such persons solely because of race or color. Martin v. Texas, supra [200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497].”

The motion of the defendant came too late to be considered by this court.

The court has carefully studied the evidence against the defendant. The jury was correctly advised by the trial court as to the law. The defendant was accorded a fair and impartial trial. There is sufficient evidence to sustain a conviction of murder. Finding no errors in the record warranting this court in granting the defendant a new trial, the judgment of the trial court is affirmed.

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


text:
    Ex parte A. F. BAILEY.
    No. A-9225.
    Dec. 31, 1936.
    (64 Pac. [2d] 278.)

      The Attorney General, Everett S. Collins, Co. Atty., and Geo. B., Coryell, Jr., Asst. Cos. Attty., for respondent.
   DOYLE, J.

In the application for writ of habeas corpus, for discharge from imprisonment in the state penitentiary, R. F. Bailey alleges that he is unlawfully imprisoned and detained by the warden of the state penitentiary without authority of law under a judgment of conviction of the. superior court of Creek county, Bristow division, for the offense of being an habitual criminal, wherein he was sentenced to serve a term of five years in the state penitentiary. That on February 2, 1936, by commitment issued out of said superior court he was on said day delivered to the warden of the state penitentiary at McAlester.

That petitioner has been and is now held in custody to serve said sentence without due process of law, in that said judgment and sentence is void, in that said informa.tion does not charge a felony and charges only petit larceny, and the petitioner never had a preliminary hearing or waived the same to a charge of felony; that he did not plead guilty and was denied the benefit of counsel.

That for the reasons stated said superior court of Creek county was without jurisdiction to render said judgment and sentence.

It appears from the application and the answer thereto that the petitioner was arrested on Sunday evening, January 26, 1936, and placed in the city jail; the next morning was taken before C. W. Pounders, justice of the peace in and for the city of Bristow. The record recites:

“Complete Record of Proceedings
“1-27-36 complaint filed charging 'Being, a habitual criminal’
“1-27-36 Warrant issued
“1-27-36 Defendant arraigned and plead ‘guilty’
“1-27-36 Bound over to superior court of Creek county, Oklahoma.
“Bristow Division. Appearance bond set in sum of $1,000 commitment to sheriff.
“I hereby certify the above is a complete Record of Proceedings, together with the papers filed in this case, which papers are attached hereto.
“[Signed] C. W. Pounders,
“Justice of the Peace.”

On the same day an information was filed in the superior court charging:

“R. F. Bailey did, in Creek County, State of Oklahoma, on or about the 24 day of January 1936 and anterior to the presentment hereof, commit the crime of being an habitual criminal, in the manner and form as follows, to ivit: The defendant then and there being did then and there Avillfully, wrongfully, unlawfully, and feloniously, take, steal and carry aivay from the possession of the M. and P. Store one sack of flour of the approximate value of $2 without the consent or knoAvledge of the owner thereof and with the intent then and there to convert the same to his OAvn use and benefit and that this defendant has been convicted on numerous occasions of petit larceny and has served one term in the penitentiary and was recently discharged from the county jail from a prior conviction and that he has been an offender and convicted in Creek county of petit larceny charges and other charges at least three times, all of which is contrary to,” etc.

The judgment and sentence is as follows:

“The State of Oklahoma vs. R. F. Bailey, Defendant. No. 934.
“The prisoner, the above named, R. F. Bailey, defendant, being personally present in open court, and having, been legally informed for the crime of being an habitual criminal and arraigned, and said defendant having entered herein his plea of guilty, as charged in said information and being asked by the court if he had any legal cause to show why judgment and sentence should not be pronounced against him, and he giving no good reason in bar thereof:
“It is therefore considered, ordered, adjudged and decreed by the court that said R. F. Bailey be confined in the state penitentiary at McAlester, in the state of Oklahoma, for the term of Five (5) years at hard labor for said crime by him committed, said term of sentence to begin at and from the day of Del. A. D., 19 — , and that said defendant pay the costs of this prosecution, taxed at |40.90, for which execution is awarded.
“It is further ordered, adjudged and decreed by the court that the sheriff of Creek county, state of Oklahoma,’ transport said R. F. Bailey to the penitentiary at Mc-Alester, in the state of Oklahoma, and that the warden of said penitentiary do confine and imprison the said R. F. Bailey in- accordance with this judgment, and that the clerk of this court do immediately certify, under the seal of the court and deliver to the sheriff aforesaid, two copies of this judgment, one of said copies to accompany the body of said defendant to the said penitentiary and to be left therewith at said penitentiary, said copy to be warrant and authority for the imprisonment of said defendant in said penitentiary, and the other copy to be the warrant and authority of said sheriff for the transportation and imprisonment of the said defendant as herein-before provided. Said last named copy to be returned to the clerk of said court with the proceedings of said sheriff thereunder endorsed thereon. And thereupon the court notified the defendant of his right of appeal.
“Done in open Court on this 27th day of January 1986.
“[Signed] C. O. Beaver, Judge.”

The prosecution in this case was based on Penal Code, article 6 (sections 1817-1820), entitled, Second Offenses.

It is a general rule that under a statute imposing a greater punishment for a second offense than for the first, an information for a second offense must allege sufficient facts to show that the court before which the conviction for the first offense took place had jurisdiction to try for that offense. In this respect, the information must be definite and certain. Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637; Wright v. State, 16 Okla. Cr. 458, 184 Pac. 158.

The statute, section 1817, provides that:

“Any person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows: * * *
“Third: If such subsequent conviction is for petit larceny * * * then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.”

In the case of Goodman v. Kunkle, Warden (C. C. A.) 72 F. (2d) 334, 336, it is said:

“I-Iabitual criminality is a state, not a crime. The so-called ‘count 3’ is not, in fact, a separate ‘count’ in the sense in which that term is customarily employed. Habitual criminal statutes, such as that of Indiana, do not create or define a new or independent crime, but they prescribe circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous criminalities as they are alleged and found. This Avas definitely decided in Barr v. State [205 Ind. 481], 187 N. E. 259. In McDonald v. Massachusetts, 180 U. S. 311, 21 S. Ct. 389, 390, 45 L. Ed. 542, the court, in considering a statute imposing greater punishment because of prior convictions for crime, said: ‘The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only.’
“To substantially like effect is Graham v. West Virginia, 224 U. S. 616, 32 S. Ct. 583, 56 L. Ed. 917, and we had occasion to follow these cases and so declare in McCarren v. United States (C. C. A.) 8 F. (2d) 113.”

It will be observed that the information alleges the defendant did “commit the crime of being, an habitual criminal,” and that the judgment of the court recites that “R. F. Bailey defendant having been legally informed for the crime of being an habitual criminal and arraigned and said defendant having entered his plea of guilty.”

The fact that the information designated the offense as the crime of “being an habitual criminal” is immaterial, as the offense charged depends upon the facts alleged.

The information alleges facts constituting the offense of petit larceny, and assuming that the proceedings were regular, the judgment of conviction should have been for the offense of petit larceny, second and subsequent offense, which under the statute subjected the defendant to a more severe punishment than conviction for a first offense.

It is a fundamental principle of law that a person may not be convicted of any offense other than the one charged, or an offense necessarily included as a matter of law. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689.

It appears from the record that the judgment of conviction was for the crime “of being an habitual criminal.” There is no such offense known to our Penal Code.

In Shepherd v. State, 17 Okla. Cr. 630, 102 Pac. 238, it was held that the judgment of conviction was void, as it was for a crime different from that charged in the information.

In Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759, it was held:

“Jurisdiction to render a particular judgment and sentence is as essential as jurisdiction of the person and subject-matter. If the first does not exist, the sentence is void.”

Other questions are raised, but we forbear from further discussion of this case. Enough has been said. Upon the record before us and for the reasons stated, we are of opinion that the trial court was without jurisdiction to render the judgment and sentence upon which the commitment issued, and that the execution of said void judgment deprives the petitioner of his liberty without due process of law.

The petitioner, R. F. Bailey, is therefore by the judgment of this court discharged therefrom.

Writ granted, and petitioner discharged.

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


author: PEE CTJBIAM.

text:
    FRANK GING v. STATE.
    No. A-9103.
    Jan. 9, 1937.
    (64 Pac. [2d] 344.)

      E. W. Snoddy and H. C. Crandall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for tbe State.
   PEE CTJBIAM.

Tbe plaintiff in error, hereinafter referred to as tbe defendant, was by information charged with unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of flOO, and to be imprisoned in tbe county jail for sixty days.

Tbe evidence in tbe record is brief, and in substance is as follows: Neis Nelson, a deputy sheriff, stated:

“I went to tbe home of Frank Ging, on tbe 24'th day of May, 1985; I bad an order of appraisement to appraise the land where Frank Ging lived. Accompanying me were A. A. Smith, A. O. Curtis and J. H. Bagenstos; when we drove up to tbe bouse I told the others to remain in tbe car and I would tell Mr. Ging we were going to appraise the land; I walked to tbe bouse and beard something go ‘Boom’; I walked a little farther and saw Mr. Ging come out of tbe milk house and bounce a keg on tbe cement walk and yell, Where is your search warrant?’ I just said ‘Hello,’ and told him I was not coming to search anything, and that I had an order of appraisement to appraise tbe land; be ran back to tbe milk bouse and brought out another ten gallon keg; tbe stopper came out and I smelled of it, and put the stopper back in the keg; another keg bad broken and I-straightened it up; then I called to the appraisers to see what was there. I told tbe defendant I was going to have to place him under arrest. I asked tbe parties with me to taste it and see if it was whisky. Mr. Ging told me I could search tbe rest of the buildings, and I told him I did not come there to search. I told the men to go ahead and appraise the place. We loaded the whisky up, took out ten gallons and took the rest to Alva.”

On cross-examination witness stated that he had an order of appraisement from the court, and had gone there with the other parties to appraise the land, and not for the purpose of searching for intoxicating liquor, and that he did not search anything.

The other parties with witness Nelson testified in substance the same as Nelson. The defendant did not offer any testimony.

Eight errors have been assigned by the defendant alleged to have been committed by the trial court. In support of his contention that the third instruction of the court is erroneous, the defendant relies upon Crowdis v. State, 59 Okla. Cr. 297, 58 Pac. (2d) 154. A careful examination of the case relied on by the defendant shows that the facts in Crowdis v. State, supra, are not similar to the facts in this case.

It will be seen from the evidence that the officer had not gone toi defendant’s, home for the purpose of searching for intoxicating liquor, but when the officer approached, and knowing he was an officer, the defendant brought the whisky from the milk house and threw it on the cement walk, evidently trying to burst the kegs and destroy the whisky, which action of the defendant in bringing the whisky out of the milk house and throwing it on the walk took place in the presence of the officer. The evidence clearly shows the guilt of the defendant of the unlawful possession of the intoxicating liquor.

The verdict of the jury is excessive, and should be modified from a fine of $100 and 60 days in jail, to a fíne of $100 and 30 days in jail, and as modified the judgment is affirmed.


text:
    Ex parte BUBER ARTHUR.
    No. A-9242.
    Jan. 9, 1937.
    (64 Pac. [2d] 344.)
    Buber Arthur, pro se. •
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

This is an original petition in ha-beas corpus. The petitioner alleges that he is unlawfully restrained by Jess H. Dunn, warden of the state penitentiary. That the trial court deprived him of all his legal rights, and refused to subpoena witnesses or to furnish him counsel or to allow him to employ counsel. He further alleges that he was lodged in jail on suspicion and was forced to confess. He admits he entered his plea of guilty to the crime charged against him, and that he was sentenced by the trial court- to life imprisonment.

Response and a demurrer has been filed to the petition, in which it is denied the defendant was deprived of any of his legal rights as guaranteed to him by the Constitution of the United States or the state of Oklahoma. The minutes of the court clerk show conclusively that the petitioner entered his plea to the allegations admitting his guilt and entered his plea of guilty, whereupon the court sentenced him to imprisonment in the state penitentiary, at McAlester, for life. A copy of the judgment and sentence has been attached to the petition showing that the warden of the penitentiary holds the petitioner by reason of the judgment and sentence of the trial court, which court had jurisdiction of the person and subject-matter.

After considering the record presented to this court, and the other facts submitted by the state, the court holds that the petitioner is not entitled to the relief prayed for.

The writ is therefore denied.


text:
    IKE MURROW v. STATE.
    No. A-9102.
    Jan. 9, 1937.
    (64 Pac. [2d] 343.)
    E. W. Snoddy and H. C. Crandall* for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to' as the defendant, was convicted of transporting intoxicating liquor from one place in the state to another.

The testimony in substance is very brief. The officers testifying they were out on Choctaw street, in the city of Alva, with a search warrant to search the defendant’s car. When the defendant drove down the street toward the officers, one of them called to the defendant and told Mm they had a search warrant to search his car. The defendant was driving very slow, and one of the officers stepped on the running board of the defendant’s car. The officer, testified he saw a half-gallon jar in the defendant’s car between his legs, and when he told the defendant he had a search warrant to search his car, and handed him a copy, the defendant picked up a hammer and broke the jar; that he afterwards got a little bit- of the whisky that was in a piece of the broken jar. The other officer testified he identified the contents of the jar being whisky by its smell.

The defendant offered no testimony.

The facts in this case conclusively show that the defendant had a quantity of whisky in a fruit jar and was transporting it from one place to another in the city of Alva; that the officers had a search warrant to search the defendant’s car, and were justified in stopping the defendant for that purpose, and that the defendant broke the fruit jar, which the proof shows contained whisky. The quantity of whisky was very small, and there is no evidence of the defendant being a violator of the prohibitory liquor laws. The verdict of the jury fixed the punishment of the defendant at a fine-of $150 and 30 days in jail. Under the facts in the record, this punishment is excessive, and should be modified. The punishment is therefore modified to a fine of $50 and 30 days in jail, and, as modified, the judgment of the trial court is affirmed.

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


text:
    Ex parte F. L. WEAVER.
    No. A-9247.
    Jan. 15, 1937.
    (64 Pac. [2d] 925.)
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   DOYLE, J.

In his petition for writ of habeas corpus for discharge from imprisonment from the state peni-ten tinary, F. L. Weaver alleges that he is unlawfully imprisoned and detained by the warden without authority of law under a judgment of conviction rendered by the district court of Garfield county for the crime of “Habitual Theft,” which judgment was rendered April 16, 1936, wherein he was sentenced to serve a term of 18 months’ imprisonment at the state penitentiary.

That petitioner has been and is now held in custody to serve said sentence without due process of law in that said judgment of conviction is void, in that it was for a crime other than the one charged in the information, or for an offense necessarily included as a matter of law.

That for the reasons stated the district court of Garfield county was without jurisdiction to render said judgment and sentence.

It appears from the petition and the answer to the rule to show cause that, petitioner having been duly charged by complaint filed before a justice of the peace charging the offense of petit larceny as a second offense under Penal Code, § 1817, subd. 3, he was held to the district court of said county for trial, and an information was duly filed in said court, charging him with the commission of petit larceny as a second offense after prior conviction, and that upon arraignment thereon he entered a plea of guilty, upon which the judgment and sentence was entered. A commitment was accordingly issued.

It also appears that, under the statute providing for credits to prisoners for good behavior, the petitioner will be entitled to his release on March 20, 1937.

The information was sufficient to apprise the defendant of the nature of the offense charged and was sufficient to authorize the court to pronounce judgment on a plea of guilty according to the law of the case.

It is a fundamental principle of law that a person may not be convicted of any offense other than the one charged, or an offense necessarily included as a matter of law.

In the present case of Ex parte Bailey, 60 Okla. Cr. 278, 64 Pac. (2d) 278, this court held:

“Habitual criminal statute, Penal Code, article 6 (sections 1817, 1818), does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. ‘Habitual criminality’ is a state and not a crime.” (Syl. 2.)
“The allegation of previous conviction is not a distinct charge of crime, hut is necessary to bring the case within the statute, and goes to the punishment only.” (Syl. 3.)

It appears from the record that the judgment of conviction was for the crime of “habitual theft.” There is no such offense known to our Penal Code.

Upon the record before us and for the reasons stated in the case of Ex. parte Bailey, supra, we are of the opinion that the trial court was without jurisdiction to render the judgment and sentence upon which the commitment issued, and that the execution of said void judgment deprives the petitioner of his liberty without due process of law.

The petitioner, F. L. Weaver, is therefore by the judgment of this court discharged therefrom. Writ granted and petitioner discharged.

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


author: PEE CUEIAM.

text:
    SETH STONE v. STATE.
    No. A-9145.
    Jan. 27, 1937.
    (64 Pac. [2d] 939.)

      W. C. Henneberry, for plaintiff in error.
    Mac Q. Williamson, Att-y. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error was convicted of stealing an automobile, and sentenced to serve a term of eleven years in the state penitentiary, and appeals.

The record in this case was filed in this court on May 20, 1936. The case was submitted on the record on October 6, 1936, and plaintiff in error given thirty days in which to file brief, which thirty days expired and plaintiff in error was given an additional ten days in which to file brief, which extension of time expired November 16, 1936, since which time no request has been made and no reason given why a brief has not been filed. The court therefore assumed that the appeal has been abandoned, or that counsel representing the plaintiff in error has reached the conclusion there were no errors in the record sufficient to warrant a reversal.

The record has been carefully examined, and the examination fails to disclose any fundamental errors. The evidence is sufficient to sustain the verdict of the jury.

The case is therefore affirmed.