text:
    ARVEL WILMOTH v. STATE.
    No. A-10078.
    Dec. 2, 1942.
    (131 P. 2d 774.)

      William A. Tidwell, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ed Shipp, County Atty. of McCurtain County, of Idabel, for defendant in error.
   BAREFOOT, P. J.

Defendant, Arvel Wilmoth, was charged in the county coiirt of McCurtain county with the unlawful possession of intoxicating liquor, to- wit: 29 pints of whisky; was tried, convicted, and sentenced to pay a fine of $100, and to serve 90 days in the county jail, and has appealed.

For reversal of this case it is contended: First, that the county judge of McCurtain county erred in refusing to disqualify himself to- try the case of this defendant; second, that the court refused to permit defendant to properly qualify the jury on voir dire examination; third, that the court erred in refusing to suppress the evidence because of having been secured by illegal search and seizure.

Oklahoma '.Statutes 1931, sections 2911, 2915, O. S. A. (Stat. 1941), Title 22, §§ 571 and 575, provide for the disqualification of a trial judge and the latter section provides for the procedure to< be followed in securing his disqualification. It is as follows:

“Disqualification of judge, claim of — -Mandamus.— Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so- to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to dp within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.”

In the instant case the application was not made until the case was called for trial. No application was filed whereby the trial judge could certify his disqualification “within three days before said cause is set for trial”.

This court, in the early case of Lewis v. Russell, 4 Okla. Cr. R. 129, 111 P. 818, 819, in construing the above statute said:

“Under this section it is necessary that the application for a change of judge be filed with the clerk of the court below; that it set forth the grounds — that is to say, the facts upon which the claim is made that the judge is prejudiced — and that the same be presented to such judge, reasonable notice thereof being first given to the prosecution. If the application is in compliance with the statute, and the judge concedes that he is prejudiced, he certifies his disqualification as requested. On the other hand, if the application be in proper form, but the judge does not admit his disqualification, and therefore refuses to- make the certificate, a petition may be filed for a writ of mandamus to require him to do so; and the question of his disqualification will then be tried out and determined in the appellate court upon the petition, the response, and such proof as may be there offered. But the filing of an application with the clerk below in full compliance with the section above quoted is a prerequisite to the procuring of the writ. The facts upon which the claim of prejudice is made must be set out in the application so' that the judge and the other side may know what is claimed and upon what the claim is based; and it is not sufficient to set those facts out for the first time in the petition for the writ. Myers v. Bailey, 26 Okla. 133, 109 P. 820; * * * Ex parte Hudson, 3 Okla. Cr. 393, 106 P. 540, 107 P. 735. In the present case no pretense was made of complying with the statute in this respect, and therefore there was nothing upon which to base the petition for the writ of mandamus. The writ is therefore denied”.

See, also, Kelly v. Ferguson, 5 Okla. Cr. R. 316, 114 P. 631; Rourke v. Bevis, 171 Okla. 392, 42 P. 2d 898; Fisk v. Venable, 61 Okla. Cr. R. 360, 68 P. 2d 425; Castleberry v. Jones, 68 Okla. Cr. R. 414, 99 P. 2d 174.

From an examination of the record in this case, the evidence offered by the defendant was not, in our opinion, sufficient to support the contention that the trial judge was disqualified. The main contention is that the trial judge had been assistant county attorney prior to his appointment as county judge. He resigned this position on February 1, 1941. The offense occurred on February 27, 1941, and the information was filed on March 7, 1941. The resignation was presented to the board of county commissioners and a minute made in the commissioners’ proceedings on February 3, 1941. Counsel for defendant relies upon the proposition that the resignation was not effective until it had been accepted by the board of county commissioners. This proposition is answered by the statute itself. Oklahoma Statutes 1931, section 3409, O. S. A. (Stat. 1941), Title 51, § 9, which provides resignations may be made as follows:

“Resignations. — Resignations may be made as follows: * * * 4. Of elective county officers, by filing or depositing such resignation in writing in the office of the county clerk, except that of county clerk, which shall be filed or deposited with the board of county commissioners, which resignations, unless a different time is fixed therein, shall take effect upon such filing or deposit. * * * 6. Of officers holding their offices by appointment, to' the body, board, court or officer that appointed them”.

Under this statute the resignation had become effective prior to the time the crime was committed and the charge filed. See State v. Breckinridge, 34 Okla. 649, 126 P. 806.

The second assignment of error arises by reason of certain questions attempted to be propounded to prospective jurors. The first question was with reference to the validity of the search and as to whether the juror would consider the question in passing upon the question of defendant’s waiving his constitutional rights. The court properly sustained an objection to this question and gave as a reason therefor that a question of the legality or illegality of the search was a question of law for the court and not a question of fact for the jury. This was proper. Other questions propounded were with reference to the same matter and we do not find that the court erred in sustaining an objection thereto.

The third assignment of error attacks the legality of the search. The facts upon which it is based are as follows: The sheriff of McCurtain county and one of his deputies had occasion to visit the C. C. C. camp which was situated one mile west of Idabel. As they passed defendant’s place they saw him talking to a party in an automobile. As they returned from the C. C. C. camp they saw defendant going across an open field, carrying a large bag which, to them, seemed very heavy. The deputy sheriff followed the defendant, who was unaware that he was being followed. The deputy testified as follows :

“* * * he set the bag down and taken out this package of whisky, and started on about 15 or 20 steps, and I was in 40 steps of him, and I says, ‘Wait a minute’.”

He further testified:

“I hollered and says, ‘Wait a minute’. He, stopped and turned around. He had a package of whisky in his hand. I said, ‘Come here’, and he started coming to me. I was on one side of the fence and he was on the other. I walked up and said, ‘Give me that’, and he handed it to me. I walked to the bag, about 15 or 20 steps, and there was a bag of whisky. I put the package back in there and I said, ‘Well, let’s go’. Q. Before he ever saw you, before you ever said anything to' him, you had seen him set it down and take the package of six out and start off like he was going to hide it? A. Yes, sir. * * *”

Re-direct examination:

“Q. Now, Mr. Rountree, you have been deputy sheriff about six years, or a little over? A. Four years, going on five. Q. You have caught lots of whisky since you have been deputy sheriff? A. Yes, sir. Q. This package Orville had under his arm, that is the way bonded whisky is wrapped, isn’t it? A. Yes, sir. Q. And you have caught a lot of it wrapped that way? ' A. Yes, sir. Q. And that is what it is? A. Yes, sir.”

Re-cross examination:

“Q. One more question. When you walked up to the barrack bag, it was open, and you could see the whisky, like that? A. Yes, sir. Q. It was not wrapped up, after he took the package? A. Yes, it was in open view. I saw it as I passed it going to him”.

Defendant was arrested by the deputy sheriff and these charges were the outgrowth of this arrest. No search warrant was had by the officer at the time of the arrest. Under the evidence it was unnecessary to have one, as the defendant was committing a misdemeanor in the presence of the officer by transporting intoxicating liquor.

An examination of the record reveals that this defendant was given a sentence of a fine of $100 and 90 days in jail. There is nothing in the record to show that this defendant had ever been previously convicted of a violation of the prohibition or any other law and, while he had 29 pints of whisky in his possession, we are of the opinion that justice will be best served by reducing the sentence to- a fine of $100 and 30 days in jail and, as so modified, the judgment and sentence of the county court of McCurtain county is affirmed.

DOYLE and JONES, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    EDWARD DUTTON v. STATE.
    No. A-10052.
    Dec. 2, 1942.
    (131 P. 2d 777.)

      Marion R. Wells, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Edward Dutton was charged in the district court of Seminole county with the crime of murder, was tried, convicted of the crime of manslaughter in the first degree with the punishment left to the court. The court, after overruling the motion for a new trial, sentenced the defendant to serve a term of seven years in the State Penitentiary, from which an appeal was taken.

The defendant appealed by transcript and did not file in this court a case-made of the evidence taken at the trial.

It is first contended that the court erred in overruling the defendant’s motion for a continuance.

Neither the motion for continuance nor the affidavit of defendant thereto attached complies with the settled law of this state, requiring diligence upon the part of defendant to obtain the attendance of the absent witness, and does not show any probability of securing the witness at the next term of court.

In Lane v. State, 65 Okla. Cr. R. 192, 84 P. 2d 807, 808, it is held:

“A motion for continuance on the grounds of the absence of witnesses should show reasonable diligence, the probability of securing the witness within a reasonable time, and the proper location of the witness. The overruling of a motion for continuance is in the sound discretion of the trial court, and where this discretion has not been abused it will not be set aside.”

See, also, Bayouth v. State, 39 Okla. Cr. R. 8, 262 P. 702; Sledge v. State, 40 Okla. Cr. R. 421, 269 P. 385; Wininger v. State, 55 Okla. Cr. R. 78, 24 P. 2d 664.

In addition to the fact that the motion for continuance was insufficient on its face to require the court to grant a continuance as a matter of law, the record shows, in a note set forth by the reporter, that the testimony of the two- witnesses referred to in the motion for continuance and given on a former trial was, by agreement of the parties, read to the jury as their evidence on behalf of the defendant.

Under all of these circumstances it appears that the court did not abuse his discretion in overruling the motion for a continuance.

It is next contended that the court erred in keeping the jury together after they had reported that they were deadlocked nine to three.

The record discloses that the case was finally submitted to' the jury about 5 p.m., October 15th, and that the verdict of guilty was finally returned into court on October 16th at 4:30 p.m. The record further shows that the jury reported twice into open court during their deliberation. The first report was at 10:30 p.m., October 15th, at which time the foreman of the jury advised the court that the jury stood three to nine, at which time the court directed them to go to bed. The next morning at 10:30 a.m. the jury again reported into open court, at which time, in response to the query of the court as to whether' they had agreed upon a verdict, the foreman stated, “I don’t think it is possible for us to get together;” to which the court stated, “Well, I want you to go back and deliberate.”

In the early case of Kent v. State, 8 Okla. Cr. 188, 126 P. 1040, 1045, it is held:

“Section 6867 [Comp. Laws 1909, 22 O. S. 1941 § 896], Procedure Criminal, provides: ‘Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.’

“Under the statute, the length of time the jury should be required to deliberate, and the probability of an agreement must be determined by the court from the facts and circumstances of the particular case and the court’s discretion will be conclusive, unless it has abused its discretion in that regard.”

Trial courts must necessarily be vested with a wide discretion in the determination as to the time which a jury should be kept together. This was a capital case even though the verdict returned by the jury was for the lesser offense of manslaughter. Since there is no record of the evidence introduced at the trial, we are not advised as to how long the trial proceedings had lasted, and certainly, under these circumstances, it would be an unwise rule of law to' sa.y that the court abused his discretion in keeping; the jury together for a period of less than 24 hours after the case was finally submitted. Here the court made no comment which might be construed as tending to coerce the jury, and, SO' far as the record discloses, he was only doing his duty in requiring the jury to continue the deliberation.

Lastly, it is contended that the jury was guilty of misconduct after the case was finally submitted to them. This assignment is based upon two acts of the jury. The record discloses that the jury was placed in the charge of two sworn bailiffs. That when they retired for bed ten of the jurors and one bailiff slept on one floor of a hotel and two jurors and the other bailiff slept in a room together on another floor of the hotel. In Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331, 334 it is stated:

“The division of a jury by placing them in different sleeping quarters is not a separation. A mere temporary separation for a purpose as the use of a toilet or the use of a telephone or kindred reasons is not within the meaning of the law forbidding a separation of the jury. Elkins v. State, 29 Okla. Cr. 175, 233 P. 491; Forester v. State, 36 Okla. Cr. 111, 252 P. 861.”

The most serious contention of the defendant is based upon the action of the bailiffs in allowing one of the jurors, in company with one of the bailiffs, to go to a barbershop and get a shave early in the morning of October 16th.

The record on this action is based upon the evidence taken upon the motion for new trial and includes the testimony of the two' barbers who were present in the barbershop at the time the juror was brought there by the bailiff, the juror himself and the bailiff. These four witnesses were substantially in accord in their testimony as to what occurred in the barbershop. The juror Wright never said a word all of the time he was in the barbershop and nothing was said to him by any one. The barbers did not know that he was on the jury which was deliberating’ the Dutton Case. As shown by the testimony of the witnesses, the substance of the entire conversation while the bailiff and juror were in the barbership is as follows: By the Bailiff: “Gentlemen, here is a man who wants a shave.” Later an inquiry of one of the barbers directed to the bailiff: “Are you through with the Dutton case?” The bailiff replied: “No, the jury is still out,” followed by the inquiry, “How do they stand?” and the ansiver by the bailiff, “Nine and three.” One of the barbers stated that he asked the bailiff if he knew Avhich way the jury stood and the bailiff replied, “Well, they are not allowed to tell that.”

The juror Wright testified that he got in the barber’s chair and was being shaved and heard some conversation between the barbers and the bailiff, but could not remember what was said, and that he heard nothing to influence or sway him in any way in arriving at a verdict in the Dutton case.

This issue raises an interesting question which is one not easy to decide. We have held in many cases:

“Where the proof shows that the jury is permitted to separate after the case has been finally submitted, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden is on the prosecution to show that no injury could have resulted therefrom to the defendant.” Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531, 532; Sealy v. State, 59 Okla. Cr. 104, 56 P. 2d 903; Crow v. State, 39 Okla. Cr. 145, 263 P. 677; Chance v. State, 5 Okla. Cr. 194, 113 P. 996; Goins v. State, 9 Okla. Cr. 35, 130 P. 513.

The action of the bailiff in taking this juror to> a barbershop is something that would not have been permitted to have been done if the jury had inquired of the court for permission to do so> as it entails too many risks of having outside influences brought to bear which might possibly creep into the jury room and affect the verdict. However, after fully considering all of the evidence upon this point, it is our conclusion that the state has fully met the burden of showing that no prejudice resulted to the defendant by reason of the fact that this one juror was allowed to get a shave. Wright was not known to either of the barbers. A sworn officer of the court was with him continuously. Everything that was said or done at the barbershop was fully developed by the examination of the four witnesses and there appears nothing occurred which would have influenced any one. A verdict was not reached for several hours after this occurrence. As hereinabove stated, there is no record of the evidence filed with this court and no contention made here that the evidence did not support the verdict. In the absence of such a record and in view of the evidence on this issue before the court, it is our conclusion that the defendant was not prejudiced by reason of this act.

The above three assignments of error being the only ones presented by the defendant and none of them being of sufficient merit to justify a reversal of the judgment of conviction, it is ordered that the judgment and sentence of the district court of Seminole county be affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    L. D. KRAUSE v. STATE.
    No. A-10062.
    Dec. 9, 1942.
    (132 P. 2d 179.)

      Geo. C. Crump and H. W. Carver, both of Wewoka, A. L. Deaton, Jr., of Tulsa, and W. A. Billingsley, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen,' Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, L. D. Krause, was charged by indictment presented and filed in the superior court of Seminole county with the crime of embezzlement, was tried, convicted and sentenced to serve one year in the State Penitentiary and pay a fine of $100 and costs, and has appealed.

The charging part of the indictment is as follows :

“* * gajq Seminole County, and State of Oklahoma, on the 11th day of May in the year of our Lord One Thousand Nine Hundred and Thirty-Eight and prior to the findings of this indictment the defendant, L. D. Krause, then and there being, did then and there willfully, unlawfully and feloniously embezzle and misappropriate four thousand, six hundred and ninety three dollars and seventy three cents ($4,693.73) from the town of Sasakwa, Oklahoma in the following manner, to wit:

“That L. D. Krause was duly elected, qualified and took possession and charge of the office of Treasurer of the town of Sasakwa, Oklahoma, in 1933, and served as such Treasurer of the town of Sasakwa, Oklahoma, and was in possession of said office at all times from the date aforesaid until the filing of this complaint. That the said L. D. Krause as such Treasurer of the town of Sasakwa, Oklahoma, received, collected and took into his possession, and under his official capacity as aforesaid and by virtue of his office as Treasurer of Sasakwa, Oklahoma, at different times and from day to day from July 1, 1934 to April 30, 1938 many and various sums of money, checks, drafts, valuable securities, effects, vouchers for money and other evidences of indebtedness, all of which was by him, the said L. D. Krause received and collected as money and is legally chargeable against him as money and which came into his possession and under his control through and by virtue of his trust as such Treasurer of the Town of Sasakwa, Oklahoma. That at various times between the dates of July 1, 1934 and April 30, 1938, L. D. Krause while then and there Treasurer of the town of Sasakwa, Oklahoma and as such Treasurer of said town of Sasakwa, was intrusted with and had in his possession and under his control by virtue of his trust as such officer and Treasurer the sum of four thousand, six hundred and ninety three dollars and seventy three cents ($4,693.73) and that L. D. Krause while acting as such officer and while intrusted with said sum of money as aforesaid by virtue of a trust relation existing between him and the said town of Sasakwa, Oklahoma, did then and there wrongfully, unlawfully, fraudulently and feloniously embezzle, convert and appropriate tbe said sum of money ($4,693.73) to bis own use and to a use and purpose not in due and lawful execution of his said trust, and contrary to tbe form of Statutes in such cases made and provided, and against tbe peace and dignity of tbe State.”

It is first contended that tbe indictment charged an offense under section 7761, O. S. 1931, 19 O. S. 1941 § 641, and that tbe court erroneously admitted evidence and predicated bis instructions under section 2495, O. S. 1931, 21 O. S. 1941 § 341.

Counsel for defendant presented a requested instruction wbicb was refused by tbe court. This instruction would bave been proper if tbe prosecution bad been maintained under section 7761, O. S. 1931, supra, as we bave held that a conviction under that section of tbe statute cannot be sustained unless tbe state shows a personal appropriation of funds by tbe defendant or an appropriation not in keeping with his official trust. Smith v. State, 61 Okla. Cr. 427, 69 P. 2d 394; State v. Harris, 47 Okla. Cr. 344, 288 P. 385; Hays v. State, 22 Okla. Cr. 99, 210 P. 728.

Tbe indictment properly charged an offense under either section 2495, supra, or section 7761, supra, and tbe state could elect to maintain its prosecution under either of said statutes. In Hays v. State, supra, it is stated:

“Where two statutes of tbe same class make an offense punishable in different ways, an accused may be proceeded against and punished under either of sucb statutes.”

In tbe absence of a motion by the defendant to' require tbe prosecution to' elect under wbicb statute be was maintaining tbe prosecution, it was not error for tbe court to construe tbe indictment as being, filed under section 2495, supra, and proceed accordingly.

It is next contended that the court erred in admitting as primary evidence the audit prepared by a deputy State Examiner, which was compiled from his examination of the records and other information furnished him from other sources, concerning the financial condition of the town of Sasakwa during defendant’s term as town treasurer. Attached to the audit was a letter of transmittal written by the deputy examiner to the State Examiner and Inspector which outlined the work which the deputy had done in preparing the audit and in which letter was set forth the conclusions and opinions of the deputy examiner based upon certain facts which had been called to his attention in preparing the audit.

It is now well settled that the audit is admissible as primary evidence. Hays v. State, supra; Hutchman v. State, 61 Okla. Cr. 117, 66 P. 2d 99. In Hutchman v. State, supra, it is stated:

“In prosecution for aiding and abetting a county treasurer in commission of crime of embezzlement, audit of county treasurer’s office by employee of State Examiner and Inspector’s office held admissible, although conclusions reached by examiner were inadmissible.”

The above cases are ample authority for sustaining the action of the court in admitting the audit in evidence1, but they also sustain the proposition that the conclusions of the deputy examiner which are set forth in a letter addressed to his employer are inadmissible. The deputy examiner may be used as a witness to> explain his audit, if explanation is necessary, and, in certain instances, where proper foundation is laid, his opinion might be admissible . Here, however, it is our conclusion that the action of the trial court in admitting the letter signed by the deputy examiner in which conclusions of the examiner and his opinion of certain matters set forth in the audit are stated was error.

It is next complained that the conduct of one of the jurors throughout the trial was prejudicial and deprived the defendant of a fair and impartial trial.

The record discloses that the juror in question commenced interrogating the defendant while he was on the witness stand. No objection was interposed by counsel for defendant to the first few questions which were asked by this juror. After the sixth question had been asked by the juror the following appears in the record:

“(After the juror had asked question, and was partially answered:) Mr. CrumpIf the court please we object to the questions by the Juror, we don’t like to object but it seems like — (Interrupted) The Court: Overruled. Sit down, Judge Crump, the juror has a right to ask questions. Mr. Crump: Exceptions.”

This contention raises an interesting question and is one which, so far as we are advised, has never been presented to this court for determination. The record here discloses that this juror asked many questions. In fact, it may be stated that the record discloses he apparently thought he was the county attorney and assumed the role of prosecutor. Many of his questions were prejudicial. They were argumentative; some of them wholly outside of the issues and clearly showed that the juror had become prejudiced against the defendant.

We think it proper that a juror may ask an occasional question where something has been said by a witness which is confusing to the juror for the purpose of clarifying the matter. The extent to which the trial court may allow such questioning by the juror is a matter in the discretion of the court.

The difficulty in allowing a juror to question a witness arises by reason of the fact that the juror is not an attorney, most of them are not familiar with the rules of evidence, and they might intentionally or inadvertently ask some question which is wholly improper and one which should not be answered; yet, if counsel for defendant objects or defendant failsi to make answer to the question the juror, or jurors, might think the witness was concealing, something from them and little credence would therefore be placed in the testimony of the witness. For that reason, trial courts should be very careful in allowing jurors to ask questions from a witness and where the question asked by a juror appears to be improper, the trial court should interrupt without requiring counsel for defendant to object and state that such question is improper and direct the witness not to make response thereto.

We have gone over thoroughly that part of the record dealing with the questions asked by the juror. This examination is so lengthy that it will not be set forth in this opinion, but it is our conclusion that the trial court allowed this juror to go too far in his questioning, and that the action of the juror in this regard was prejudicial to the defendant.

In view of what has been hereinabove stated, it is unnecessary to discuss the other assignments of error presented by the defendant.

The judgment of the superior court of Seminole county is reversed and remanded for further proceedings consistent with the views herein expressed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: BAREFOOT, P. J.

text:
    JAMES ELLISON v. STATE.
    No. A-10096.
    Dec. 9, 1942.
    (132 P. 2d 178.)

      Bruce & Rowan, of Oklahoma City, and Amos T. Hall, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hugh Adams, Co'. Atty. of Logan County, of Guthrie, for defendant in error.
   BAREFOOT, P. J.

Defendant, James Ellison, was charged in the district court of Logan county with the crime of rape in the second degree and, upon a plea of guilty, was sentenced to serve a term of four years in the State Penitentiary, and from this judgment an appeal has been taken to this court.

The record is in the form of a transcript, and no evidence appears in the record. A motion has been filed by the Attorney General to strike the purported case-made and dismiss the appeal. The only contention made by the defendant in his brief is that the punishment is excessive and that the judgment and sentence should, therefore, be modified, and affirmed. We have carefully considered this contention and find that a plea of guilty was entered by defendant on the second day of December, 1940, and that sentence was deferred until December 30, 1940, at which time the following proceedings were had:

“By the Court: * * * You appeared in open court and entered your plea of guilty to the crime of rape in the second degree, on what date was that? By Mr. Adams: December 2. By tbe Court: And the court, at your request passed sentence day to this date, December 30th. Have you any legal reason to offer why judgment and sentence of the court should not be pronounced against you on your plea of guilty? By the Defendant: No, sir. By the Court: Are there any recommendations you have to make, Mr. County Attorney? By Mr. Adams: My recommendation, your Honor, would be that he get at least four years. It carries one to 15, and I agreed with counsel for the defendant, that that would be my recommendation, and I think it was with that understanding, possibly that he pled guilty, that it would not exceed four year's. By the Court: Have you anything to say, Mr. Bruce? By Mr. Bruce: I have said about all I have to say, the other time. I think under the circumstances, it should not be more than four years, probably three years would be enough punishment. By the Court: Mr. County Attorney, your recommendation, you discussed with the father of the complaining witness and it was satisfactory wúth him? By Mr. Adams: Yes, sir. I didn’t talk to Mr. Ellison, personally, but I understand both Mr. Bruce and the attorney from Tulsa— By the Court: Mr. Hall? By Mr. Adams: Yes, Amos Hall, both discussed it with him. By the Court: Did you understand it that way, too, Ellison? By the Defendant: Yes, sir. By the Court: Anything further? By Mr. Bruce: No, sir.”

Judgment and sentence was then pronounced by the court assessing punishment at four years in the State Penitentiary.

Counsel for defendant in their brief attempt to point out certain facts as to why the judgment and sentence should be modified. There is nothing in the record that reveals these facts. They may be presented to the Governor of the state, who is vested with the power of pardon and parole under the Constitution.

Finding* no error in the record, the judgment of the district court of Logan county is affirmed.

DOYLE and JONES, JJ., concur.


text:
    GEORGE L. McKEE et al. v. STATE.
    No. A-10090.
    Dec. 9, 1942.
    (132 P. 2d 173.)
    Finis Walker, of Drumright, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., Everett S. Collins, Co. Atty., of Sapulpa, and Jack Campbell, Asst. Co. Atty., of Drumright, for defendant in error.
   BAREFOOT, P. J.

Defendants, George L. McKee and Toots Wilson, were charged jointly in the justice of the peace court of the city of Drumright, with Weldon Simmons, Mrs. Weldon Simmons and Mrs. Toots Wilson, with the crime of “breach of the peace”, on the 23rd day of December, 1910. The defendants were convicted and given a fine and jail imprisonment sentence. They appealed to< the superior court of Creek county and were there tried before a jury, and the defendants George L. McKee and Toots Wilson were convicted and given a fine of twenty-five dollars and to1 serve thirty days in jail. From this judgment and sentence they have appealed. The other three defendants were acquitted.

The defendants were members of a religious organization known as “Jehovah’s Witnesses”. The charges were the outgrowth of a street fight between the defendants and a group of citizens who live in the city of Drumright. No question with reference to the validity of any statute or the violation of any constitutional rights of freedom of speech or freedom of the press is involved in this case. For a reversal it is contended:

First.. Error of the court in admitting, over the objections of the plaintiffs in error, irrelevant, incompetent, immaterial and prejudicial testimony.

Second. Error of the court in refusing plaintiffs in errors requested instructions to the jury, numbers one to twelve, inclusive.

Third. That the verdict is contrary to the law and the evidence, and that the court erred in overruling motion for a directed verdict.

The first assignment of error is based upon the introduction of evidence by the state of the witness Sam Whit-lock, who was the mayor of the city of Drumright, and who testified that he had refused permission to a committee representing “Jehovah’s Witnesses”, about a year prior to the time- of the charge in this case, to operate a loud speaker on the streets of the city of Drumright which reproduced a speech made by Judge Rutherford, a leader of “Jehovah’s Witnesses”. It is true that this evidence was immaterial, it having occurred long prior to December 23, 1940, and had reference to another altercation between “Jehovah’s Witnesses” and the citizens of Drum-right. But when defendant introduced his evidence he went into these facts fully with his own witnesses and had them testify fully as to what happened on the prior occasion; also, by cross-examination of the state’s witnesses by counsel representing defendants, these facts were fully developed. It may also be noted that one of defendants was present at the time of the conversation between the mayor and the committee. The court instructed the jury that this conversation could only be binding as against the defendant present, and he was acquitted by the jury. The facts as above stated also apply to the testimony of the witness Jack Campbell, the assistant county attorney.

It has often been held that when improper evidence may be admitted, yet if a defendant takes the witness stand and testifies to' the same facts, the error in receiving the other evidence will become harmless and will not be grounds for reversal. Montgomery v. State, 13 Okla. Cr. 652, 166 P. 446; Worley v. State, 42 Okla. Cr. 243, 275 P. 398. Also, that an appellate court will examine the entire record, and unless it is found that there hasi been a miscarriage of justice or that the errors are a substantial violation of a constitutional or statutory right, a case will not be reversed for the exclusion of evidence or for the improper admission of evidence. Oklahoma Statutes 1931, section 3206, O. S. A. (Stat. 1941), Title 22, § 1068. Knox v. State, 34 Okla. Cr. 300, 246 P. 665; Carter v. State, 6 Okla. Cr. 232, 118 P. 264; Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149; Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531.

An examination of the record convinces us that the evidence presented did not prejudice the defendants, and that any immaterial evidence that was introduced did not affect their rights. Any jury trying this case would arrive at no other verdict than the one rendered. Carter v. State, 6 Okla. Cr. 232, 118 P. 264.

The second assignment of error is based upon the refusal of the court to give certain requested instructions. There were twelve in number. In defendant’s brief he says:

“The refusal of the judge in giving some of these requested instructions did not, in our opinion, constitute prejudicial and reversible error, for the reason that they were sufficiently covered in the court’s instructions. Thus, we shall discuss in this.brief, only those instructions requested by the defendants which were not covered by the court’s Instructions, and which, in our judgment, requires a reversal of this case”.

We have carefully examined these requested instructions and the instructions given by the court. It would unduly lengthen the opinion to> quote them. The requested instructions are based upon the question of self-defense, and upon certain constitutional questions which are not involved in the issues necessary to a proper decision in this case. Here the defendants are charged only with a breach of the peace. Oklahoma Statutes 1931, section 1987, O. S. A. (Stat. 1941), Title 21, § 1362. From an examination of the instructions as a whole, we find that all of the issues were properly presented by the court. The rights of the defendants were properly protected. Some of the requested instructions were proper abstract statements of law, but were not applicable or necessary for a decision of the issues here involved.

Instruction No. 7 given by the court properly presented the defense offered by the defendants, and under this instruction, if the jury found the facts justified, it could and would have found the defendants not guilty. This instruction was as follows:

“You are instructed that to use force or violence towards: the person of another' is not unlawful, but is justifiable when committed by a party about to be injured in preventing or attempting to prevent an offense against himself or against others in his company, provided the force or violence used is not more than sufficient to prevent such offense. And in this case if the jury believe from the evidence, that an attack, or threatened attack was being made upon the defendants, and that from the nature and circumstances of such attack, or threatened attack, viewed from the standpoint of the defendants:, it appeared to them that they were in danger of receiving serious bodily injury at the hands of their adversaries, and that the defendants resisted said attacks, or threatened attacks, by the use of physical force, in an attempt to avoid threatened or apparent injury to themselves, and used only such force as was necessary to so do>, then and in that event you will find the defendants not guilty”.

This instruction was very liberal for a defendant who, was charged with a breach of the peace.

The third assignment of error is that the verdict of the jury is contrary to' the law and the evidence, and that the court erred in overruling the motion of defendants for a directed verdict.

As above stated, this charge was by reason of an attempt on the part of a party known as “Jehovah’s Witnesses” to distribute literature and hold a meeting upon the streets of the city of Drumright on the 23rd day of December, 1940. Some of these defendants were members of a party which had attempted to- distribute literature and sell pamphlets upon the streets of the city of Drum-right on June 16, 1940, and at which time trouble had been had with some of the citizens of the city. As to just how the controversy arose, and who provoked it, the evidence is highly conflicting. As to the fact there was a fight between the parties and a disturbance of the peace, there can be no doubt. Both the witnesses for the state and defendants testified that there was a fight and that in the fight canes and cream jars were used and a knife was used to cut a certain placard from one of the parties. A letter was introduced in evidence which it was admitted was written by one of the defendants to his superior officers. It stated fully the facts with reference to the disturbances, both on June 16, 1940, and on December 23, 1940. In this letter, which was written by the defendant George L. McKee, the following expressions were used:

“After prayerfully studying the instructions of the said informant, we decided that the days preceding Christmas would be the best, since.a large number of people would be on the streets, doing their shopping”.

“The following week we (four Bros. & two Srs.) planned to work Monday 23th and Sat 28th. So taking all precautions we thought that would be necessary; the men had canes on their arms, while the women bad their purses with heavy cold cream jars in them. We worked until our time set to stop at 12:00 o’clock.”

“As we were going to- our cars to leave town we were surrounded by the same mob only this time they had increased toi about fifty and without say a word, Art Glaser an American Legion started cutting one of the Bro. magazine bags off, and I politely ask him to stop, without giving heed he and four other men grabbed him and started beating him, so not wishing to see the Lord’s literature tom up or His servants hurt, I let go- with my cane, knocking two fellows out, and the fight began, which lasted about thirty minutes”.

“During the fight, the enemies mind was either so-confused, that they began fighting one another, or either there were some people of good will who were fighting for us, because at one time there were at least ten men; knocked out, lying on the sidewalks, (none of these were the witnesses). While the Bros, were using canes and fists the Srs. were using their purses which proved very useful, in saving two of the witnesses life. All the witnesses both Bros, and Srs. knew they were fighting for a righteous cause and never at one time let up until most of the enemy were carried off or left to escape more just treatment”.

“We did not go on the street comers with the intentions of fighting, but to- enable the people of go-od will an opportunity to the Kingdom Message, but after the enemies deliberately started to- destroy our1 literature, after seeing us going to leave town and being told not to destroy it, it was more than the witnesses could bear, and being instructed to fight for the kingdom interests- and our Brethren, we used just what force we thought necessary and no- more, because after they stopped fighting and began leaving we also went on our way”.

From these statements and many others contained in the letter and the evidence in the record, it will readily be discerned that a disturbance of the peace of the citizens of Drumright took place on the 23rd day of December, 1940. The defendants evidently expected it when they armed themselves with canes and cream jars and went upon the streets of the city. The witnesses for the state testified that the defendants were the aggressors and witnesses for the defendants testified that the citizens were the aggressors. Some witnesses for the state testified that they saw the defendant George McKee hit several persons with a cane and that he did so prior to the time he was struck by any one. They also' testified that they saw defendant Toots Wilson fighting with fist and cane. The evidence further reveals that traffic on the streets was stopped for 30 minutes during the fight. The witnesses for the defense testified they were attacked and that nothing was done by them only to protect themselves from the assault. From the above statements it will be readily seen that there was a direct conflict in the evidence. Under the many decisions of this court, this was properly a question to be presented to the jury and their verdict will be set aside by this court only when the evidence is insufficient fl> sustain the same.

In 8th Ruling Case Law, page 28á, Section 305, a breach of the peace is defined as follows:

“In general terms a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace. By ‘peace’ as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the right of all persons in political society. It is, so to speak, that invisible sense of security which every man feels so necessary to- his comfort, and for which all governments are instituted. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger' from the wicked language! and conduct of a guilty party, not only destructive of the peace of the citizens but of public morals without the commission of the offense. The good sense and morality of the law forbid such a construction”. From the above it will be observed that the Public is the one concerned with 'a breach of the peace and not the individual. It is no defense to a charge of a breach of the peace that the other party was at the same time guilty of the same offense, 9 Corpus Juris 389; 11 C.J.S., Breach of the Peace, § 7; Bruce v. Scully, 162 Ky. 296, 172 S. W. 530; or by showing that the prosecutor was wrong, State v. White, 18 R. I. 473, 28 A. 968. In 11 C.J.S., Breach of the Peace, § 7, it is stated: “A peacemaker’s justification does not in any degree depend on which of the contestants was guilty of the first illegal violence, for he justifies, not in the right of either of the parties, but in the right of the public”.

The only remaining question is the amount of punishment assessed by the jury against these defendants. Five were charged, three ivere acquitted and two* convicted. This case was originally tried in the justice of the peace court and on appeal tried in the superior court of Creek county. A transcript of the record from the justice of the peace court reveals that the costs in that court will amount to $74.80. The costs of the trial in superior court must be added to this amount, and, in addition to this, a fine of $25 against each defendant convicted. The jury also imposed a sentence of 30 days in jail. We have carefully considered all the facts, taking into consideration the religious zeal of these defendants in carrying out their religious beliefs, and while they should know that in exercising their rights under the law and the Constitution of the state and of the nation, to worship Cod according to the dictates of their own conscience, they have not the right to violate the laws of the municipalities and of this state. The record does not reveal whether the citizens wlu> participated in this breach of the peace were prosecuted or not. The record shows that all the parties on both sides who participated in this fight were guilty of a breach of the peace under the law. The facts as to whether or not others were prosecuted is not a question for the consideration of this court, but is for the determination of the officers upon their oaths and of the citizens of the' city of Drum-right. These defendants had the same right under the law to file charges against them if, in their opinion, there had been a violation of the law.

We have come to the conclusion that the ends of justice would be best subserved by modifying the judgment and sentence in this: case to a fine of $25 against each of these defendants, and costs, and, as so modified, the judgment and sentence of the superior court of Creek county is affirmed.

DOYLE and JONES, JJ., concur.


text:
    In re C. E. OWENS.
    No. A-10352.
    Dec. 16, 1942.
    (132 P. 2d. 352.)
    0. E. Owens, in pro. per.
    Mac Q. Williamson, Atty., Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, 0. E. Owens, has filed a petition in this court for a writ of habeas: corpus. The facts in this case are almost identical with the facts as set forth in the case of In re Pat Wright, 75 Okla. Cr. 367, 131 P. 2d 773. Petitioner was charged in the disr trict court of Oklahoma county with larceny by fraud of an automobile; entered a plea of guilty and was by the court sentenced to serve a term of three years in the penitentiary.

There is nothing in the petition which reveals that the court did not have jurisdiction or that the judgment land sentence is void.

For the same reasons stated in the case of In re Pat Wright, the writ of habeas corpus is denied.

JONES, J., concurs. DOYLE, J., absent.


text:
    In re PAT WRIGHT.
    No. A-10355.
    Dec. 16, 1942.
    (132 P. 2d 351.)
    Pat Wright, in pro. per.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Pat Wright, has filed in this court his petition for habeas corpus, alleging that he is unlawfully detained, confined, and restrained of his liberty, by Fred Hunt, Warden of tbe State Penitentiary, at McAlester. Attached to bis petition are certain copies of letters, copy of tbe complaint, information, and judgment and sentence filed in tbe district court of Pottawatomie county. No evidence bas been offered in support of tbe allegations of tbe petition. A demurrer to tbe petition bas been filed by tbe Attorney General on bebalf of tbe warden of tbe penitentiary, and also a response.

It is unnecessary to give a detailed statement of tbe allegations set forth in tbe petition. They are only recitals with reference to tbe arrest, and plea of guilty entered by tbe defendant to a charge of second-degree burglary entered against petitioner in tbe district court of Pottawatomie county, and with reference to bis arrest in tbe State of Arkansas, and subsequent transfer to Oklahoma to answer tbe charges against him in this; state. There is nothing in the petition, or tbe exhibits attached thereto', which reveals that tbe court acted without jurisdiction, or that tbe judgment and sentence entered was void.

In tbe recent case of In re Story, 75 Okla. Cr. 367, 131 P. 2d 773, we said:

“This court on habeas corpus will not look beyond tbe judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors in law on questions over which tbe court bad jurisdiction. Tbe writ of habeas corpus cannot be used to perform tbe office of a writ of error on appeal, and should be limited to', cases in which tbe judgment and sentence of tbe court attacked is clearly void”.

As we have so often announced, petitioner’s only opportunity for relief is from tbe Governor of tbe state, in whom tbe Constitution bas placed the power of pardon and parole.

For the reasons above stated, the demurrer of the Attorney General, filed in behalf of the warden of the penitentiary, is sustained, and the petition for writ of habeas corpus, is denied.

JONES, J., concurs. DOYLE, J., absent.


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    CLARENCE COOK v. STATE.
    No. A-10088.
    Dec. 16, 1942.
    (132 P. 2d 349.)
    Robt. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Clarence Cook, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, a jury was waived, defendant was tried, convicted and sentenced to. serve JO days in the county jail and pay a fine of $50 and costs, and has appealed.

It is contended that the trial court erred in overruling the motion to suppress evidence presented by defendant.

That .part of the affidavit to which the complaint is directed is as follows:

“* * * on the 24th day of January, 1941, Earl Cook or John Doe Avhose more full and correct name is to. your affiant unknown, in certain buildings and premises described as follows, to-Avit: A two story frame dwelling house and all out-buildings located at 305 Harrison Avenue, Oklahoma City, Oklahoma County, Oklahoma, in said County and State, did then and there unlawfully and wilfully have in his possession and under his control, *

The search warrant followed the description set forth in the affidavit by reciting that Earl Cook or John Doe, whose more full, true and correct name is unknown, etc.

The defendant, testifying, on the motion to suppress, stated that his name was Clarence Cook and that he was never known as Earl Cook or John Doe. He admitted that he lived at 305 Harrison avenue, which was the place particularly described in the search warrant. It was a two-story frame house. The upstairs was unoccupied, but was in possession of defendant and, it was there that the 59 pints of whisky were found. The defendant admitted that the whisky belonged to. him.

The sole contention of the defendant is that since his name was Clarence Cook and he was known to officers as Clarence Cook, the insertion of the name Earl Cook or John Doe in the search warrant made the same illegal and void.

In the case of Orval Bowman v. State, 73 Okla. Cr. 248, 120 P. 2d 373, it is stated:

“Where a search warrant is issued for the purpose of searching a person, such person should be particularly described, and if his name is known it should be stated in the warrant. If a search warrant is issued for the search of a place, the place must in like manner be particularly described in the affidavit and warrant, and the name of the owner should be set out, or he should be described as unknown, according- to the facts. If the place is particularly described, it is not absolutely essential that the name of the owner or occupant be stated.”

In that case the search warrant was directed to “Leon Bowman or a person unknown.” In the body of the opinion it is stated:

“Since the affidavit and search warrant in this case are for the search of specifically described premises only, and not for the search of a person, the name of the owner or occupant of such property is not so absolutely essential to the affidavit and search warrant as to* invalidate them, and the search would have been legal without naming Leon Bowman.”

See also Cahill v. State, 38 Okla. Cr. 236, 260 P. 91; Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260; Denmark v. State, 71 Okla. Cr. 95, 108 P. 2d 550; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185, 186.

In Crim v. State, supra, it is stated:

“It is conceded that the legal description of the premises to be searched is correct. For that reason no discretion was left to the officers making the search as to the place to be searched. This court has held in numerous cases that where the affidavit is an application for a search warrant to search a particular place which is particularly described, and not for the search of a person, the failure to* name or describe the person does not render it fatally defective.”

It appearing that the court did not err in overruling the motion to suppress the evidence and that there are no errors apparent in the record, the judgment and sentence of the court of common pleas of Oklahoma county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    WILLIAM TURMAN v. STATE.
    No. A-10064.
    Dec. 16. 1942.
    (132 P. 2d 347.)

      W. P. Morrison, Jr.,- of Oklahoma City, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, William Turman, was charged by information in the district court of Oklahoma county with the crime of attempted burglary in the second degree, after a former conviction of a felony, was tried, convicted and sentenced to- serve five years in the State Penitentiary, and has appealed.

It is first contended that the evidence was insufficient to show an attempted burglary; and secondly, that if the evidence was sufficient to- connect the defendant with breaking into the building, it was also sufficient to prove an entering, and, therefore, the defendant being charged only with the crime of “attempt”, there was a fatal variance between the information and the proof.

Arthur Williams testified for the state that he worked all night at a cafe across the .street from the Brown Dry Goods Store; that on October 3, 1940, about 1 or 2 a. m., he heard a crash across the street at the Brown store; that he ran to- the door of the cafe and watched for a few minutes and saw a man come from the alley by Reno street and walk up to the entrance of the Brown store building and knock some pieces of glass loose.- That the person who broke the glass then walked back over by a telephone pole near the alley and stood there for a minute or two- and then walked back towards the door which had been broken. That about that time two policemen drove up in a car and threw a spotlight on the defendant and arrested him after a tussle. He went out to- the car where the officers had the defendant. Witness identified defendant as being the man whom he had seen at the store building.

The police officers told of the arrest of the defendant and one of them testified that he found a large piece of glass near the alley where the defendant had been seen standing by the witness Williams, which fit in the door of the building. This glass was taken to the fingerprint department for examination, and the fingerprint experts testified that they found the fingerprints of the defendant appearing upon this glass.

G-. R. Brown testified that he was the ownei* of the dry goods store located in the building across the street from Earnest’s Cafe. That he had closed his door and locked it at the close of business on October 3, 1940. That the night of October 3rd he was called by the police department and came to- his store and found the plate glass in the front door had been broken. That this happened in Oklahoma county and was done without his permission or knowledge.

The prior conviction of the defendant of the crime of grand larceny, after a former conviction of a felony, was proved by competent evidence and no question is raised concerning this undisputed record.

At the conclusion of the evidence of the state, the defendant rested without offering any evidence in his behalf.

The first two- propositions presented by defendant above set forth are wholly inconsistent. We think the evidence is sufficient to show an attempted burglary. The breaking of the plate glass window and removal of the glass by a second trip to the door, after the defendant had waited a few minutes to see that the coast was clear, was a sufficient circumstance to show an attempted burglary. If the defendant had gone one step further and entered the building, he would have fully completed the crime of burglary, but to' follow the reasoning of defendant’s counsel that defendant could not have committed the attempt without also entering the building during the breaking of the window and thus fully completing the act of burglary, is contrary to the testimony. It is true that we have a statute, 1821, O. S. 1931, 21 O. S. 1941 § 41, which provides:

“No person can be convicted of an attempt to commit a crime when it appears that the crime intended or attempted was perpetrated by such person in pursuance of such attempt.”

The breaking and removal of the plate glass window was an overt act and strong circumstance showing an intent to' burglarize. It is apparent that only the immediate discovery of the defendant by the officers is all that prevented his entering and effecting a burglary of the store, but there is no. testimony that defendant at any time committed any act which could be called an entry.

Whether defendant had an intent to commit the crime of burglary may be established by circumstantial evidence and such intent was a question properly to be determined by the jury from all of the facts and circumstances in the case. This issue was presented by proper instruction to1 the jury and we approve their verdict.

Lastly, it is contended that the punishment assessed the defendant was excessive and should be modified.'

The defendant had just been released from the reformatory at Granite where he had served a term of 15 months for grand larceny. In determining whether any punishment assessed the defendant is excessive, it should be borne in mind that the question addressed to this court is not one of clemency but whether the law demands that the punishment be modified under the record presented to us.

In the recent case of Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114, it is stated:

“Power of Criminal Court of Appeals, on appeal, to reverse, affirm or modify judgment must be within limits of punishment fixed by statute for offense for which accused was convicted, and must be the exercise of a judicial power, as distinguished from the executive power of commutation, reprieve, pardon or parole.”

After examining this record, we can find no evidence from which this court could say that justice demands that the punishment assessed by the jury be modified.

The judgment of the district court of Oklahoma county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., concurs in conclusion.


text:
    ALBERT SMITH v. STATE.
    No. A-10087.
    Dec. 30, 1942.
    (132 P. 2d 655.)
    Emmons Arrington, of Shawnee, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Albert Smith, was charged by information in the district court of Pottawatomie county with the crime of assault with intent to commit rape, was tried, convicted of the crime of assault and battery and sentenced to serve 80 days in the county jail.

In the appeal lodged herein the defendant contends that the evidence is insufficient to support the verdict; secondly, that the court erred in overruling objections of defendant’s counsel to prejudicial and improper questions asked by the county attorney concerning defendant’s family; and third, that the court erred in overruling the demurrer to the informatioin and motion to dismiss the case for the reason that the information wholly failed to allege sufficient facts to constitute the crime of assault with intent to commit rape.

The information filed against the defendant, omitting formal parts, is as follows:

“* * * Albert Smith then and there being did then' and there unlawfully, knowingly, wilfully, feloniously, intentionally and wrongfully make an assault in and upon one, Peggy Bull, a female person under the age of sixteen years, to-wit: of the age of nine years, with the unlawful, wrongful and felonious intent then and there upon the part of him, the said Albert Smith, unlawfully to have sexual intercourse with her the said Peggy Bull, the said Peggy Bull not then and there being the wife of him the said Albert Smith, contrary to the statute in such case made and provided, and against the peace and dignity of the state.”

The demurrer of the defendant to the information should have been sustained. In the case of Haun v. State, 22 Okla. Cr. 440, 211 P. 1060, this; court discussed the identical question now raised by defendant. In that case the averments of the information were as follows:

“ ‘That the said Peter* Haun in the county and state aforesaid, on or about the 15th day of December, 1919, did knowingly, willfully, unlawfully, wrongfully, and feloniously make an assault in and upon one Isel Kesterson, a female person under the age of 16 years, to wit, of the age of 9 years, with the unlawful, wrongful, and felonious intent then and there on the part of him, the said Peter Haun, to unlawfully, wrongfully, and feloniously have sexual intercourse and carnal knowledge of the body of her, the said Isel Kesterson, who> was then and there not the wife of him, the said Peter Haun, contrary to> the form of the statute in such case made and provided, and against the peace and dignity of the State of Oklahoma.’ ”

In the opinion of the court by Judge Bessey various decisions from courts of other jurisdictions were cited and discussed. The law of the case, as established by that opinion, is stated in the syllabus as follows:

“The physical acts done constituting the offense of an assault with intent to rape a female under the age of consent should be pleaded in an information charging that offense, in order that the court may determine whether the facts pleaded in law constitute the offense, and in order that the defendant may be sufficiently apprised of the issues he is called upon to meet.

“A mere allegation that the accused assaulted a female under the age of consent with intent to' have sexual intercourse with her 'states a conclusion and is insufficient.”

In the case of Thompson v. State, 17 Okla. Cr. 215, 187 P. 819, this court held that an information similar in form to- the one now under discussion was insufficient and that a new information should be filed setting forth “allegations with respect toi the manner of the assault.”

The reasons for this rule can never be better illustrated than as shown by the record in the instant case. The assault was alleged to have been made upon a young girl nine years of age. Her testimony, with all of the inferences and deductions that could be attributable to it, could go no further than establish a weak case of assault and battery. She testified in substance that she had been hired to- go over to defendant’s home and stay with his little girl while the defendant and his boys were working in the field. That just before the defendant went to the field to¡ work he lifted his little girl up and made her touch the top of the ceiling. That he then lifted prosecutrix up and put her down and then lifted her up again and stated, “ ‘I will give you a dime if you will give me some,’ and I said no-, and ha said, ‘You don’t care much about the boys, do you?’ and I said no.” That defendant then went to the field to work.

The evidence shows that the defendant and his sons and small girl, together with the prosecuting witness, had lunch together and that she stayed there and played with defendant’s little girl and two- small boys until a neighbor came over after her to take her back home that afternoon. The defendant’s wife had died a few days previous and left him with several small children, including a girl about three years of age. On the morning the assault is alleged to have occurred, the defendant, accompanied by his little girl, drove over to the home of the prosecuting witness to hire her older sister to come and stay with his small girl while he and the boys were working. The older sister of the prosecutrix was gone and at the suggestion of the mother the defendant took the nine-year-old girl back home with him to take care of his small daughter while he was working in the field that day.

The testimony of the prosecutrix was disputed by the testimony of defendant and two of his boys-, who claim they were present with their father all of the time while he was in the presence of the prosecutrix and that nothing occurred such as was described by her.

The record shows that the defendant was a good fanner who had lived in the community for many years and had never been arrested before in his life.

The trial court, after hearing the evidence, very properly refused to submit the issue of assault with intent to commit rape which was charged in the information to the jury, but did submit the issue of assault and battery. If the trial court had sustained the demurrer to the information at the time it was filed and required the county attorney to allege the specific acts constituting the assault, the trial court could have determined at that time that the acts relied upon by the county attorney, if true, constituted nothing more than assault and battery which was a misdemeanor triable in the justice of the peace court. It should be borne in mind that this view applies solely to cases where the female alleged to have been assaulted was under the age of consent, and therefore, by reason of her age, unable to give consent. As was stated in Haun v. State, supra:

“ ‘We are of the opinion, upon like ground, and by a parity of reasoning, it must be held, where the proses cutor intends to charge the offense of assault with intent to commit rape upon a female under the age of consent, the element of force, being * * eliminated and the technical word “assault” deprived of its meaning, the specific acts done toward the accomplishment of the offense must and should be pleaded, that, the court may be informed and determine the sufficiency of such acts to constitute the offense charged, and that the defendant may be apprised of the nature and character of the acts by him done, which it is charged constitute the offense he must be prepared to meet.’ ”

With this view of the case it is unnecessary to discuss the other propositions urged by counsel for defendant.

The judgment of the district court of Pottawatomie county is reversed and remanded to the trial court with instructions to sustain the demurrer to the information

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    Ex parte JOE BARRETT.
    No. A-10368.
    Dec. 30, 1942.
    (132 P. 2d 657.)
    Joe Barrett, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Joe Barrett, has filed in this court his petition for habeas corpus. In this petition he alleges that on or about April 20, 1930, petitioner was charged jointly with a man by the name of Rogers with conjoint robbery in Tulsa county; was convicted and sentenced to- the State Penitentiary; that' said robbery charge was the outgrowth of a purported robbery of a street car motorman in Tulsa; that on the 5th day of October, 1931, petitioner was paroled by the Governor, Honorable William H. Murray; that on the 28th of January, 1935, petitioner was committed to the Kansas State Penitentiary for the crime of burglary; that he was paroled from the Kansas Penitentiary on the 1st day of May, 1939, and subsequently pardoned on the 10th day of June, 1941. Petitioner further alleges that the parole issued to him in the State of Oklahoma was revoked one year later because “he had married without the consent: of those authorities”.

Petitioner contends that the authorities of this state had no legal right to revoke his parole because of his marriage, and that he was of the opinion that he had been issued a pardon, instead of a parole. Petitioner is now confined in the .State Penitentiary at McAlester.

No exhibits are attached to- the petition, and no evidence has been offered to- substantiate any of the allegations. From the above statement of facts it is clear that the allegations of the petition are not sufficient to cause this court to grant relief to- petitioner by habeas corpus. There is nothing to- show that the court in which defendant was tried did not have jurisdiction of petitioner and of the crime with which he stood charged. The Constitution gives to- the Governor of this state the exclusive right of pardon and parole-. He also has the right to- revoke a parole when one has been granted.

This court in the case of Ex parte Smith, 65 Okla. Cr. 393, 87 P. 2d 1106, 1107, stated:

“The power to- pardon conferred by the Constitution on the Governor is practically unrestricted, and the exercise of executive clemency is a matter of discretion.

“The Constitution, art. 6, sec. 10, Okla. St. Ann.,' provides:

“ ‘The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations! as he may deem proper, subject to such regulations as. may be prescribed by law.’

“This power is not derived from legislation, and it is quite clear that, under any pretense of regulating, its exercise, the supreme executive power could not be deprived of its constitutional authority in relation thereto', but provision may be made by legislation, which shall render the exercise of such a power convenient and efficient. Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L.R.A., N.S., 110.

“In Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L.R.A. 1915F, 548, this court held:

“ ‘The Governor of the state has the power toi annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed.’

“In the opinion it said:

“ ‘Upon its revocation the legal status of the petitioner must be regarded the same as it was before the parole was granted. It was1 not such a contract as entitled him to have a judicial determination of forfeiture, in the face of his stipulation that the Governor might revoke it “for any other reason by him deemed sufficient.” ’

“For the reasons stated the writ of habeas corpus will be denied. It is so ordered.” Ex parte Denton, 69 Okla. Cr. 204, 101 P. 2d 276.

The parole issued by the Governor does not appear in the record. There is nothing which enables this court to determine the terms thereof.

For the reasons above stated, the writ of habeas corpus is denied.

JONES and DOYLE, JJ., concur.


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    DUDE MULLINS v. STATE.
    No. A-10229.
    Jan. 6, 1943.
    (133 P. 2d 239.)
    Brown & Cund, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Walker Field, Asst. Atty. Gen., and Arthur J. Marmaduke, Co. Atty., of Duncan, for defendant in error.
   BAREFOOT, P. J.

The defendant, Dude Mullins, was charged in the county court of Stephens county with the crime of unlawfully transporting intoxicating liquor; was tried, convicted, and has appealed.

The only assignment of error relied upon for reversal is that the court erred in refusing to sustain the motion of the defendant to suppress the evidence, for the reason that no search warrant was had by the officer who conducted the search of defendant’s automobile in which was found the intoxicating liquor upon which this charge is based.

Evidehce was offered upon the motion to suppress prior to the trial of the defendant. At this hearing it was revealed that defendant drove his automobile upon one of the streets of the city of Duncan; that he was being followed by Officer Pines Martin; that Mr. Martin, after following him for some distance stopped at the City Hall in Duncan and that Officer W. L. Dixon got in the car with him and they proceeded to' where the defendant Mullins had parked his car. They stopped immediately in front of him and proceeded to search his car, taking, from the car the keys and unlocking the turtle back, where they found 289 pints of intoxicating liquor. That subsequent to that time, they had opened the door and searched the front of the car, but found no liquor therein.

Officer Martin testified that the defendant denied that he had any liquor in his car, but that when he took the keys from the front of the car and told the defendant that he was going to look it over, the defendant said, “No, look it over and see.”

Officer Dixon testified that he heard no such conversation, and the defendant denied that he made any such statement. The officers had no search warrant, and it is only on the evidence of the witness Martin that the defendant said “Look it over and see,” that the court overruled the motion to suppress the evidence, evidently construing this statement to be an invitation to search, and that there was no need of the officers having a search warrant.

The Attorney General has not briefed this case. At the time it was set for oral argument the Assistant Attorney General in charge announced his intention of not filing a brief and virtually announced that he would confess error.

After an examination of the record, we agree with this conclusion. It is unnecessary to give a lengthy review of the evidence. The Constitutions of this state and of the United States provide for the necessity of securing a search warrant before searching the property of the citizens. We have been liberal in our holdings that where intoxicating liquor is seen by the officer in a public place, the officer has the right to arrest one who commits a misdemeanor in his presence; and when this arrest is not for the purpose of subterfuge, he has the light to search the person, or property of the one arrested in his immediate possession. But we have also held that the officer should procure a search warrant before searching the property of a citizen. Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, and cases cited therein.

In the instant case, the officer had followed the defendant. He knew that it was his intention to search the automobile of the defendant. He had time to stop and procure the services of another officer. He would have had time to procure a search warrant. This would have been for his own protection, as well as to protect the right of the citizen, whom, as a public officer, he represents. He did not arrest the defenclant for a crime committed in his presence, and the search of defendant’s automobile was prior to his arrest.

In the case of Evans v. State, 71 Okla. Cr. 239, 110 P. 2d 621, we said:

“The search of an automobile by officers because of a suspicion that liquor is stored therein is illegal unless the officers procure a search warrant, or an offense is being committed in the presence of the officers that would justify the arrest of the possessor of the automobile.”

For the reasons above stated, the judgment and sentence of the county court of ¡Stephens county is reversed, with directions to sustain the motion to suppress the evidence and discharge the defendant.

JONES and DOYLE, JJ., concur.


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    MIKE VOEGELI v. STATE.
    No. A-10095.
    Jan. 6, 1943.
    (133 P. 2d 219.)

      Melton, McElroy & Yaughn, of Ohickasha, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Mike Yoegeli, was charged by information filed in the county court of Grady county with the crime of laying out poison, was tried, convicted and sentenced to pay a fine of $25 and costs, and has appealed.

An extensive brief has been filed on behalf of the defendant in which he presents 12 assignments of error. Under the view which we have taken of this case it is only necessary to consider one of these propositions in order to< dispose of this appeal.

It is contended that the court erred in overruling the demurrer of the defendant to the state’s evidence.

In order to properly discuss this question it is necessary to give a brief review of the evidence presented by the state. The defendant is a farmer who- lived about one mile north of Ohickasha,. About two miles from his home place he owned another farm on which he kept a number of sheep. In the month of December, 1940, a large number of defendant’s sheep were killed by dogs or coyotes. There were no houses on this 160-acre tract where the sheep were kept. On the night of January 1, 1941, five or six men were out with a pack of hounds purportedly chasing coyotes. About 1 a. m. these parties went through the barbed wire fence which surrounds the Voegeli land where the sheep were kept, and in about the center of the farm the hunters stopped to rest and warm. While they were there at the campfire some of the dogs came in from hunting and appeared to- be sick. Four or five of them died at that time and one or two others died a short while later. The next morning the owners: of the dogs notified the sheriff of Grady county, and together with him went over to the defendant’s premises where the dogs had died. A search by the sheriff disclosed a dead sheep not far from where the hunters had stopped the previous night. While they were making their investigation the defendant appeared and admitted that he had placed strychnine in the dead sheep for the purpose of killing the coyotes or dogs or whatever had been killing his sheep.

It is undisputed that the parties took their dogs onto the Voegeli premises without his knowledge or consent although there is some testimony in the record by one of the hunters that in June, 1940, and in October, 1940, he had talked to defendant about the coyotes killing his sheep. When questioned concerning the first conversation, the record discloses the following:

“Q. Just tell the conversation, just tell what was said. A. We were talking about the wolves killing the sheep and about running the dogs and Mr. Voegeli made the remark that he would be glad for us to come in there and if we would let him know one of the boys would go> with us and help us.”

As to the conversation in October the witness testified :

“He just said if we would let him know he and the boys would help get rid of the wolves.”

All of the hunters who testified admitted that they did not mention to the defendant at the time they entered his premises on the night in question that they were going to enter his land, and so far as they knew he had no< knowledge of their presence. The witness Estes, who testified as to the conversation had with the defendant, admitted on cross-examination that the conversation which he detailed occurred with defendant at the farm of defendant’s son, Raymond Voegeli. Although the state made no effort in the testimony of the witnesses in chief to- prove the exact location of the dead sheep on defendant’s premises, the defendant, through cross-examination of his counsel, showed by the witnesses that the sheep was about 75 yards north of the place where the hunters had stopped on the night in question, which would place the sheep in about the center of the 160-acre tract of land. It was also brought out upon cross-examination of one of the state’s] witnesses that the hunters, while making their investigation as to the circuinstanees surrounding the death of their hound dogs, had gone to the farmer who lived closest to where the sheep’s carcass was found, which was about one-half mile distant, and were informed by this farmer that he had his dog locked up for the reason that Voegeli had told him that he had placed poison on the premises.

The statute in question upon which this prosecution is based is section 2440, O. S. 1931, 21 O. S. 1941 § 1197, and is as follows :

“Whoever shall, except in a safe place on his own premises, lay out strychnine or other poison, is guilty of a misdemeanor.”

It was the theory of the state upon which the prosecution was based, and which theory was still urged upon appeal in the brief filed by the state herein, that where it is once shown by the state that the defendant has laid out poison, then it is incumbent upon the defendant to show that the poison was laid in a safe place on his own premises. The court in substance so advised the jury in instruction No. 6 wherein he stated:

“* * * if you further find and believe from the evidence that the defendant, Mike Voegeli, did lay out poison upon his own premises, in a safe place, then and in that event it is your duty to acquit him.”

Counsel for the state rely for a conviction chiefly upon the opinion of our Supreme Court in the case of Midland Valley R. Co. v. Rippe, 61 Okla. 314, 161 P. 233, in which the court stated:

“Where a poisonous compound is kept upon the right of way of a railroad company, it is its duty to keep such poisonous compound in a safe place, and whether or not the place in which such poisonous compound is kept is a safe place is a question of fact for the jury.

“While a railroad company is not required to fence its: right of way at depots and crossings, it is its duty to properly fence or otherwise so guard' a poisonous compound kept upon its right of way as not to leave the same accessible to trespassing, cattle.”

That case was a civil action for damages brought against the railroad company for the loss of some cattle alleged to have been caused by their drinking poisonous water which was negligently allowed to escape by the company from a dipping vat on the right of way of the company adjacent to the land of plaintiff.

We think it is sufficient answer to the contention of the state to remark that there is a great distinction between actions of a person which might cause him tp' become civilly liable for damages for injuries which his negligence has caused and those cases where his actions are criminal in nature. In the civil case a question of negligence arises, and in determining negligence in cases such as the one at bar, the courts follow the rule that persons using poisonous substances are required to use the utmost care to prevent injury and to adopt every known safeguard. The burden is on the plaintiff in a civil action to prove his case by preponderance of the evidence. In a criminal action the burden of proof is upon the state to prove each and every element of the offense charged, and under the statute herein the state must prove beyond a reasonable doubt that defendant did in Grady' county lay out poison, and if it is shown that the poison was laid out on his own premises, the burden is still upon the state to' show that the place where the poison was laid was an unsafe place. This burden may be met by showing the lay of the land, its proximity to human habitation, Avhether concealed or easily found, and by many other factors which might enter into the question as to whether the poison was laid in a safe place.

After the state, by its proof, has shown that the poison Avas laid in an unsafe place on the defendant’s premises, it then becomes a question of fact for the jury to determine whether the place where the poison was laid was a safe place in accordance with the statute.

Here the state proved that poison had been placed in a sheep on defendant’s premises, and that certain dogs had eaten of the dead sheep and died. In the view which we take of this statute, no presumption arises that the poison was in an unsafe place by reason of the fact that the dogs were killed. This evidence was admissible as a circumstance which, if the state had proved other circumstances, would have been sufficient to submit to the jury the question as to¡ whether the poison was in a safe place, but the burden never shifts to the defendant under this statute to show that the poison was placed in a safe place. He may, of course, after the state has made a prima facie case, in his own defense, as was done herein, show by Avitnesses and by circumstances that the place where the poison was laid was a safe place, giving due consideration to the locality, the distance from human habitation,, its likelihood to affect persons or domestic animals or1 property which might come upon said premises.

The defendant, in his own behalf, testified that he went to- the county attorney's office and discussed with the assistant county attorney the question as to what he should do about the killing of his sheep and as to whether he would be permitted to place poison on his place to kill the coyotes or dogs which were causing the damage. That the assistant county attorney read him the statute under which this prosecution was instituted and advised him that if he placed any poison on his own premises in a safe place that it would not be a violation of the law. That pursuant to this advice which he received from the assistant county attorney, he placed the poison in the carcass of one of the sheep which had been killed and left the carcass in as near the center of the uninhabited 160-acre tract of land as he could place it. That only one of the farmers, who lived close to the tract owned a dog and he went to him and advised him that he had placed the poison in the sheep so that the farmer could keepi his dog tied and prevent it from getting poisoned. That he did not know that the hunters had been running their dogs on his land or he would have been glad to have advised them that he had put out the poison.

This case was prosecuted on the wrong theory. At no place in the record did counsel for the state elicit from the witnesses for the state testimony as to> the location of the poison, but such testimony as was shown in the evidence of the state was brought out on cross-examination by defendant’s counsel, the state apparently relying upon the fact that they had proved defendant put out strychnin© and that dogs died as a result of eating the poisoned sheep.

In the case of Larrimore v. American National Ins. Co., 184 Okla. 614, 89 P. 2d 340, 341, our Supreme Court defined the term “safe place” as prescribed by the statute here in question, insofar as it was applicable to civil cases for damages. It is therein stated:

“The ‘safe place’ prescribed by section 2440, O. S. 1931, 21 Okla. St. Ann. § 1197 (making a misdemeanor of the laying out of strychnine or other poison ‘except in a safe place on his own premises’), means a safe place in regard to the substance’s character as poison; that is, where it would not be likely toi poison people or such animals as are within the protection of the law.”

It is further stated in the first, second, and third syllabus paragraphs of said case:

“Violation of section 2440, O. S. 1931, 21 Okla. St. Ann. § 1197 (providing that whoever shall lay out strychnine or other poison, except in a safe place on his own premises; is guilty of a misdemeanor), does not render the defendant negligent per se in an action by one who was injured solely by an explosion of said poison.

“It is not enough for a plaintiff to show that the defendant neglected a duty imposed by statute. He must go< further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him.

“One who does an unlawful act is not thereby placed outside of the protection of the law, but to¡ have this effect the unlawful act must have some casual connection with the injury complained of.”

Under instruction No. 6, above quoted, the jury was required to believe that the defendant had placed the poison in a safe place before they could return a verdict of acquittal when they should have been advised that no presumption of guilt attaches to the fact that defendant has laid out poison on Ms own premises, but that the burden of proof was upon the state to prove beyond a reasonable doubt that the place where, the poison was laid was an unsafe place within the meaning of the statute.

It is our conclusion that the trial court erred in not sustaining the demurrer to the evidence of the state and in refusing to advise the jury to return a verdict of not guilty at the close of the state’s evidence for the reason that the state made no showing that the poison laid out by the defendant on his own premises was in an unsafe place, and that no sufficient facts or circumstances were detailed by the witnesses which would have justified the court in submitting this issue to the jury for their determination as to whether the place where the poison was laid was an unsafe place within the meaning of the statute.

For the reasons hereinabove stated, the judgment of the county court of Grady county is reversed, with instructions to discharge the defendant.

BAREFOOT, P. J., and DOYLE, J., concur.