text:
    BERNARD BUCKMILLER v. STATE.
    No. A-8536.
    Dec. 22, 1933.
    Rehearing Denied Jan. 5, 1934.
    (28 Pac. [2d] 597.)
    Claud Briggs, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Bernard Buck-miller, hereinafter referred to as defendant, was jointly charged with one Harry Draper in the district court of Latimer county of the crime of grand larceny in the taking of |178.23, the property of the Southern Ice & Utilities Company, without the consent of Frank Barra, custodian, and with the felonious intent on the part of each of them to appropriate the same to his own use and benefit. Upon a joint trial, the defendant and Draper were found guilty and the punishment of each fixed at imprisonment in the state penitentiary for a period of one year. Draper has not appealed.

Defendant was an employee of the Southern Ice & Utilities Company at their plant in the own of Wilburton. Frank Barra was the manager of the plant and in possession and control of the property of the company. The ice trade had been large on the 4th of July. The money accumulated from the sales on that day was placed by Barra in some drawers in a desk and other places in the plant, and nobody but Barra and defendant knew where the money was located. Barra left the plant about 5 o’clock. Defendant remained for the purpose of waiting on customers. Shortly after Barra reached his home, he was called by defendant on the telephone and told the plant had been robbed of all the money placed in the drawers and other receptacles. The sheriff and Barra went to the plant. Defendant told them two men held him up with a pistol and took the money. Investigation of the surroundings did not disclose any suspicious strangers in that community, except a couple of tramps whom defendant failed to identify as having committed the alleged robbery.

On the 14th day of August defendant and Lawrence Jacimilli, a friend of his, drank some liquor together, at which time the defendant told Jacimilli that he and the defendant Draper stole the money; that Draper came to the plant shortly after Barra left, and defendant gave him the money and then reported the alleged robbery to Barra and the sheriff. Draper was afterward arrested for the robbery ,of the Quinton Bank, and, while in the penitentiary at McAlester, confessed to- the officers that he and defendant committed the ice plant robbery, but thereafter on the trial he took the witness stand and repudiated his confession, relying upon an alibi as his defense.

It is first contended the evidence is wholly insufficient to sustain a conviction; it being contended defendant stands convicted on the uncorroborated statement of his codefendant, Draper, made at a time when defendant was not present.

The statement made by the defendant to- Jacimilli, in the absence of Draper, at a time when defendant was not arrested or in the presence of any officer, in which he detailed exactly how this crime was committed, although extrajudicial, was sufficient to- sustain a conviction if believed by the jury, where there was other proof of the corpus delicti and of the crime, independent of such confession.

Nobody but defendant and Barra knew just where this money was kept. There was a pistol in one of the drawers where this money was kept, and on that day Barra had instructed defendant in the use of this pistol. If this had been a robbery, the robbers would probably have taken the pistol as well as the money. No robber would have stopped long enough to- empty the pistol of its shells and throw one of them under the porch of the ice plant before leaving, the scene of the robbery. Yet the undisputed evidence is that this money was taken without any confusion or disturbance of any other part of the premises or the office. When all of the circumstances are considered with defendant’s confession made to Jacimilli, they are sufficient to- sustain the verdict of the jury.

It is next contended the trial court erred in submitting to the jury in its general charge the question of whether or not the codefendant Draper’s confession was voluntary.

It appears from the record that Draper had twice been convicted of felonies; that at the time of the trial he was confined in the penitentiary on one of the other (convictions. The trial court admitted in evidence the alleged confessions by Draper on the theory that they were voluntarily made. There is evidence to support such a conclusion. The court, however, instructed the jury, at the request of Mr. Briggs, who represented both Draper and defendant, that these confessions of Draper could not be considered as evidence against defendant and in addition gave defendant’s requested instruction No. 6 (trial court’s instruction No-. 9) as follows: “You are instructed that where two- defendants are jointly on trial as in this case, evidence of voluntary confessions or admissions made by one of the defendants is admissible against- the defendant making such admissions but not against the other defendant. And, in this connection you are instructed that if you find the defendants, or either of them, made such voluntary admissions or confessions as is defined to- you heretofore in these instructions, then you must consider such admissions only as against the defendant making them and not against the other defendant.”

Under this instruction defendant was absolutely protected and the jury could not have been misled as to the purpose for which it might consider any alleged confession or admission given by the codefendant Draper.

Counsel for defendant contend the witness Jacimilli was impeached by the testimony of one Bill Lackey. Lackey testified to a state of facts which tended to corroborate the defendant, but it was for the jury to determine whether to believe the testimony of Jacimilli or that of Lackey. The most that can be said for his testimony is that it only creates a conflict of fact, which was exclusively for the jury.

On consideration of the whole record, it is apparent the defendant had a fair trial and that the evidence supports the verdict of the jury.

The cause is therefore affirmed.

EDWARDS, P. J., concurs. DAYENPORT, J., dissents.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    CLARENCE LYON v. STATE.
    No. A-8604.
    Jan. 5, 1934.
    (28 Pac. [2d] 598.)
    Percy Powers and Williams & Sasseen, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith. O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, referred to in this opinion as the defendant, was convicted of rape in the first degree, and sentenced to serve a term of 15 years in the state penitentiary at McAlester, and appeals.

An examination of the record shows that the testimony is sufficient to sustain the conviction and the judgment should be affirmed unless it is shown by the record that some error was committed in the trial of the case sufficient to warrant a reversal.

The defendant pleaded insanity; a jury was impaneled and returned a verdict finding the defendant sane.

The defendant has assigned eight errors alleged to have been committed in the trial of his case. In his brief there is only one question argued. The defendant filed a motion in the district court to quash the information, on the ground that he had not had a preliminary trial, and that there was not sufficient evidence in the record upon which to predicate the information in the district court. In his brief the defendant states that he did not take the witness stand, and only introduced other witnesses to support his defense of insanity, and confines his argument to the one assignment:

“That the district court of Greer county erred in overruling his motion to quash the district information.”

The defendant in presenting his argument on the question of his motion to quash the information presents a transcript of the testimony taken in the preliminary trial held by the examining magistrate. In the minutes of the proceedings, among other things, it is stated: “Defendant was duly and regularly brought before me and informed of the nature of the charge against him, his right to aid of counsel, change of venue, and his right to waive examination. Defendant waived examination.”

The minutes of the examining magistrate further shows that on the 9th day of July, 1982, the magistrate began the examination by reading to' the defendant the complaint, and examined a number of witnesses in support of said complaint, and after hearing the testimony found that an offense had been committed, and that there was probable cause to believe the defendant had committed the offense. As shown by the record the defendant was present in person and by counsel, and the record of the preliminary examination was filed in the district court before the information upon which the defendant was tried was filed.

It is urged by the defendant that his motion is well taken and should have been sustained by the trial court. Section 17, art. 2, of the Constitution of Oklahoma, is as follows:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having- had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

Section 2446, C. O. S. 1921, now section 2755, Okla. .Stat. 1931, is as follows :

“When a complaint, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to' believe that the defendant has committed it, issue a warrant of arrest.”

Under the statute, if in a preliminary hearing before a committing magistrate there is testimony sufficient to cause the magistrate to believe that an offense has been committed, and that there is reasonable grounds to believe that the defendant has committed the offense, it is the magistrate’s duty to hold the defendant for trial. In this case the record recites that the defendant waived an examination, but it also recites and shows that the de-i fendant was present in person and by counsel, and that his counsel took part in the preliminary trial by cross-examining the witnesses and interposing objections to the rulings of the court.

A preliminary examination before a magistrate is not a trial, and rule of evidence is not applied as rigidly as in a trial before a court. When in such preliminary examination the commission of a crime is shown and there is reasonable cause for the magistrate to believe the defendant guilty thereof, it is the duty of the magistrate to hold the defendant for trial.

In Sayers v. State, 10 Okla. Cr. 195, 135 Pac. 944, 946, this court said:

“It was settled by this court in Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466, that if on being brought before the examining magistrate the defendant waives his right to a preliminary examination, and it appears that the charge in the preliminary complaint is substantially the same as that charged in the information filed by the county attorney in the district court, a plea of want of a preliminary examination is unavailing.”

An examination of the record in this case shows that the preliminary complaint charges the defendant with the same crime as the information. In Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451, this court held that the state is not barred from holding an examination, even though the defendant waives his right thereto-. It has been the universal holding of this court, even though the defendant may waive a preliminary examination, the state has the right to hold one and have its testimony recorded. Haley v. State, 20 Okla. Cr. 145, 200 Pac. 1009; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925.

The record clearly shows that a preliminary examination was held, and that the motion of the defendant to quash the information was properly overruled. There are no- errors in the record to- justify a reversal.

The case is affirmed.

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


text:
    WANDA IDA MUSGROVE v. STATE.
    No. A-8608.
    Jan. 5, 1934.
    (28 Pac. [2d] 584.)
    Mathers & Mathers and Joe Ad won, for plaintiff in error.
    J. Berry King, A tty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted in the county court of Oklahoma county, of maintaining a public nuisance and her punishment fixed at a fine of $500 and imprisonment in the county jail for a period of six months.

Ten errors have been assigned by the defendant as grounds for reversal, the ninth and tenth errors being as follows:

“9. The verdict is not supported by the evidence and is very excessive.
“10. The verdict of the jury is contrary to both the law and the evidence.”

Section 7022, C. O. ,S. 1921, now section 2616, Okla. Stat. 1931, in part reads as follows:

“All places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

The state called as witnesses three deputy sheriffs, who testified they searched apartment No. 11 at 420 N. W. Eleventh street; there were two' men and two women sitting a.t the dining room table in the apartment, on which were some glasses partly filled, as the witnesses stated, with beer; witnesses further stated they found a suitcase in the apartment containing 11 pints of beer, the chemical analysis of which showed it contained 5 per cent, alcohol. The defendant was at the apartment.

The witnesses for the state claimed to have received reports against the defendant’s place. They refused to give the names of any parties that reported to them, and the state did not have either of the parties subpoenaed to testify against the defendant. The state’s witnesses further testify they asked the names of the parties whn were present in the apartment of the defendant when they went in, yet they could not give the name of either of the parties. Neither of the parties was subpoenaed to testify in the case.

It would serve no useful purpose to set out the testimony in detail. Suffice it to say there is evidence sufficient to sustain a conviction; but in view of the record in this case and the many facts brought out in the record that are not germane to the charge against the defendant, we hold that the punishment is excessive and should be modified from a fine of $500 and six months in jail, to a fine of $50 and 30} days in jail, and as modified the judgment is affirmed.

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


text:
    GUY ADKISSON v. STATE.
    No. A-8614.
    Jan. 5, 1934.
    (28 Pac. [2d] 586.)
    Ellmore Pinnick, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor with intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days, and appeals.

The county officers went to the home of the defendant with a search warrant, and searched the premises and found on the bed in one of the rooms of the defendant’s home, under the cover, about a quart of whisky; they claimed to have found other whisky out in another building in the yard, or near his house.

The defendant denies it was his whisky, that he had anything to do with the drinking of the whisky at his home, and that there was any whisky at his home for the purpose of bartering, selling, giving, away or otherwise furnishing to others; but the testimony shows that a party was in the house and admitted he had taken a drink. All the facts and circumstances being considered, it is clearly shown that the whisky found by the officers in the defendant’s home was there with defendant’s knowledge.

Several errors have been assigned by the defendant as to why this judgment should be reversed. After a careful examination of the entire record, and the errors submitted and argued by the defendant, we hold that the assignments are without merit.

The judgment of the trial court is affirmed.

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


author: EDWARDS, P. J.

text:
    JIM CARTER v. STATE.
    No. A-8609.
    Jan. 5, 1934.
    (28 Pac. [2d] 581.)
    Jno. L. Ward, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, ivas convicted in the district court of Tulsa county of burning insured property and was sentenced to serve a term of 5 years in the state penitentiary.

The prosecution is under section 2242, Okla. Stat. 1931. The information charges defendant jointly with one W. DeLong. DeLong testified for the state, in substance, that he owned the property in question and also a residence on an adjoining lot; that he had lost the other property by foreclosure; that defendant, a tenant of his, suggested that he burn this particular house in order that he might not lose it also by foreclosure. An agreement was made between them that defendant would bum the house or get some one to burn it for which he should have $50 when the insurance was paid. Upon the arrest of DeLong, he made a statement to the officers implicating defendant, who then left the country and was gone for some two or three weeks. Defendant denied any agreement with DeLong and explained his absence by saying he thought the officers were intending to arrest him for some other offense. He admitted he had twice been convicted of felony.

Defendant contends that the evidence is insufficient in several particulars to sustain the judgment, among them that there was no sufficient proof the house alleged to have been burned was a dwelling house or that it belonged to DeLong as alleged, or that it was insured or that there was any evidence of an intent to' defraud the insurance company, or that there was sufficient proof the property was burned or was the property described in the information or that there was any insurance by the named insurance company. In these various contentions we fear counsel have not scrutinized the record closely. It appears to have been stipulated by counsel during the tidal that the house located on the place described in the information was burned or partially burned at the date alleged; upon this admission the court excluded further testimony on this point. DeLong testified he owned the property at the location charged and that it was a dwelling house, and, while the evidence of insurance was not as direct as it should have been, the circumstantial evidence, particularly as to the agreement between defendant and DeLong, is sufficient. No contention was made a,t the trial that the property was not owned by DeLong or that it was not insured or that there was insufficient description, but was upon the ground that defendant had nothing to do with the burning.

The only other contention requiring discussion is that the court erred in his instructions to the jury, particularly instruction No. 7, which is:

“You are instructed that W. DeLong, one of the state’s witnesses, who' testified in this case, is what is known in law as an accomplice, and that you cannot convict the defendant now on trial on the testimony of an accomplice unless such testimony be corroborated by some other evidence which tends to connect the defendant with the commission of the offense; and corroboration is not sufficient if it merely shows the commission of the offense charged, or the circumstances thereof, but it must go further and tend to show that the defendant was concerned in the commission of the offense charged.”

Defendant contends that there was a conflict of testimony between defendant and his codefendant, DeLong, and it was improper for the court to instruct that DeLong was an accomplice, that by so saying the court assumed the testimony of DeLong to be true and that of defendant untrue, citing McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673; Burleson v. State, 27 Okla. Cr. 443, 228 Pac. 609; 16 C. J. 677, 928; Sipes v. State, 36 Okla. Cr. 1, 251 Pac. 511; Oollins v. State, 28 Okla. Cr. 45, 228 Pac. 993; Adams v. State, 25 Okla. Cr. 298, 220 Pac. 59; Hewitt v. State, 38 Okla. Cr. 105, 259 Pac. 144; Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251.

A similar contention was before this court in Vardeman v. State, 54 Okla. Cr. 329, 20 Pac. (2d) 194, 196, in which the court said:

“* * * If' the defendant was culpably implicated in the theft, it was because of the testimony of Franks and other evidence tending to connect defendant with the commission of the offense. Therefore, it was necessary for the trial court to tell the jury that as a matter of law Franks was an accomplice. It was only fair to defendant to tell them that Franks had placed himself in that category.”

The statutes of this state provide that a conviction cannot be had upon the uncorroborated testimony of an accomplice. Section 3071, Okla. Stat. 1931. This or a similar statute is the law in most of the states. This limitation is for the protection of those accused, its purpose is to prevent one guilty of a crime from implicating another falsely, for hope of clemency, motives of revenge, or for any other reason. This court has considered this statute many times and the rules applicable have been fully stated. Questions under this statute are generally raised by defendant insisting the court erred in not instructing that a witness testifying against the accused was in fact an accomplice or in failing to submit the law governing the testimony of an accomplice.

Loose language has been used in some of the opinions which seem to justify defendant’s contention, but on an examination it becomes plain that they do not. Upon an analysis of the cases, the facts involved and the force of the opinion, only one case has been called to our attention which fully supports the argument. Heivner v. People, 7 Colo. App. 458, 43 Pac. 1047, 1048. After quoting the instrument, the court said: “This instruction was erroneous. It assumed as a fact something which should have been left to the jury to determine from the evidence. It stated, without qualification, that Stewart was an accomplice. He could not be an accomplice unless there was a principal. If the defendant was not guilty, Stewart was not an accessory. The statement that Stewart was an accomplice therefore assumed the guilt of the defendant, and its effect must have been pernicious.”

A statement in State v. Allen, 34 Mont. 403, 87 Pac. 177, is apparently to the same effect.

This argument is indeed specious — note the contrary view taken in Commonwealth v. Ford, 111 Mass. 394.

We do not deem it necessary to analyze and point out that Crenshaw v. State, 48 Tex. Cr. R. 77, 85 S. W. 1147; Dixon v. State (Tex. Cr. App.) 90 S. W. 878; State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026, and other cases cited are not in point. In the latter case, after in substance quoting an erroneous instruction, the court said the trial court might fairly have assumed the witness was an accomplice and have cautioned the jury to distrust it. The case was reversed because, among other things, the court instructed that one jointly charged with an accused Avas by reason of that fact an accomplice. The Crenshaw Case, supra, was reversed because the jury were told they could convict if they believed the accomplice was corroborated, whether they believed his testimony was true or false. See, also, Bell v. State, 39 Tex. Cr. R. 677, 47 S. W. 1010. In some of the cases it is said that where the facts with respect to the participation of the Avitness claimed as an accomplice are undisputed or admitted, the court should determine whether or not he is an accomplice ; but where the facts are disputed whether or not the Avitness is an accomplice should be left to the jury. Several decisions of this court state this general rule. None of the cases point ont just what is meant by “disputed facts” or “admitted facts” whether it means disputed by the witness who is designated as an accomplice, or by defendant. Counsel here argue that where defendant denies generally any connection or accomplicity with the witness who is designated as an accomplice, the court, regardless of the testimony of the witness, in no event may instruct the jury that the witness is an accomplice. Surely this cannot be what is meant, for if defendant enters a plea of not guilty and contests the truth of the state’s testimony of a claimed accomplice to prove his guilt, he does not admit the testimony of such witness, for to do so would be tantamount to a plea of guilty. Nor does the fact that he denies the testimony of the witness designated as accomplice make the testimony disputed within the meaning of the term as used in the cases generally. That is to say a denial of guilt and general testimony by accused that he had no connection with the witness testifying as an accomplice is not the dispute meant in the various decisions. But on the other hand where he testifies to the state of facts detailed by the witness, or admits a connection with the witness tending to show an accomplicity, but explains his connection and disputes and denies the significance and tendency of the evidence to prove accomplice, then an instruction on such contested evidence that the witness is an accomplice, may amount to a charge on the weight of the evidence or may be an assumption that the testimony of the witness was true and that of defendant necessarily untrue. But not so when he does not testify to the state of facts detailed by the witness, but merely denies generally any connection with the witness.

The instructions are to be construed all together as a single charge. .So in connection with this instruction of accomplice, the jury is told also that defendant is presumed innocent, that the burden is on the state to prove his guilt beyond a reasonable doubt, and are told the facts necessary to be proven before a verdict of guilty can be returned. So this instruction complained of, when considered with these other instructions as a single charge, amounts, in substance, to the court saying to the jury:

“This witness has testified to a state of facts tending to connect himself and defendant with the commission of the offense charged. His own testimony makes him what is known in law as an accomplice. The law looks upon him with suspicion and will not permit a conviction to be had on his testimony alone, but before you can convict you must believe beyond a reasonable doubt that his testimony is true and must further find he is corroborated by other independent evidence tending to connect defendant with the commission of the crime, and must find and believe beyond a reasonable doubt, from all the evidence, defendant is guilty.”

This is the substance of the charge in this case. It is not an assumption that it is true or a direction that the jury must believe it, but on the contrary it is a warning that it should be looked on with caution. Such an instruction is more favorable to an accused than one which • leaves to the jury the question Avhether or not the witness is an accomplice. Submitting the question of accomplicity to the jury may confuse them. They might erroneously conclude that an accomplice in fact is not an accomplice and return a verdict of guilt without sufficient corroboration, which they might not have done if they had understood clearly that the witness was as a matter of law an accomplice and that corroboration was necessary. Upon a consideration of the entire record we are satisfied defendant had a fair trial.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    COURTLAND E. MURRAY v. STATE.
    No. A-8606.
    Jan. 12, 1934.
    (28 Pac. [2d] 718.)
    Corn & Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Woodward county of the crime of embezzlement, and his punishment fixed by the jury at a fine of $1 and imprisonment in the state penitentiary for a period of one year.

The evidence of the state was that defendant had been treasurer of Webster township in Woodward county for a number of years, and that he received from the county treasure!* of Woodward county, from time to time during a period of three years prior to the commencement of this prosecution, moneys belonging to Webster township from taxes collected by the county treasurer of Woodward county and paid over to him, as evidenced by proper warrants, in the aggregate sum of over $15,000; that an audit of the books disclosed he was short in excess of $6,000, and that he had failed to pay over or satisfactorily account for this money to his successor in office; that defendant had paid out money on checks against the township funds to various persons without any claim having been filed therefor with the township board, or any warrant issued for the payment of the same; that some of those to whom checks were issued testified they had never performed any services for the township nor had furnished the township any material, nor had ever filed a claim with the township board for any money paid to them by defendant, although they had performed services for defendant at different times on his own farm and had furnished provisions to him, individually.

Defendant, testifying for himself, admitted he had executed the checks introduced by the state, but claimed they were for services rendered to the township; that, by permission of the township board, he, as treasurer, paid the bills, and at the next meeting of the board the same were allowed and warrants issued for them to defendant; that, while this was irregular, he had not personally received any of the money; that, when his term of office expired, he had on hand $7.37 which he tried to turn over to his successor in office, but this was refused until an audit could be made.

He contends the evidence is insufficient to support the verdict of the jury.

There is no' merit in this contention, and the cause must be affirmed, unless the errors complained of require a reversal.

It is next contended the court erred in overruling defendant’s demurrer to the information.

His counsel argue the offense is charged under sections 2122, 6357, and 10964, C. O. S. 1921, thereby charging more than one offense. An examination of the information discloses the state charged defendant with a violation of section 2029, C. O. S. 1921, which relates to public officers and makes it a felony: First, to appropriate to his own use or to the use of any other person public moneys coming into his hands; second, to receive, directly or indirectly, any interest, profit, or perquisites arising from the use or loan of any public moneys; third, to knowingly keep any false account or make any false entry or erasure in any account or relating to any public moneys received by him; fourth, to fraudulently alter, falsify, cancel, destroy, or obliterate any such account; fifth, to willfully omit or refuse to pay over to his successor in office any money remaining in his hands at the end of his term of office.

The information, while not artistically drawn, does allege sufficient to bring it within the terms of section 2029, supra.

Where a statute defines an offense, and enumerates disjunctively the different, acts or things which constitute the offense, all of such acts may be charged in a single count, conjunctively, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense. Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355; State v. Williams, 44 Okla. Cr. 430, 281 Pac. 321; Hutchinson v. State, 45 Okla. Cr. 230, 282 Pac. 694.

Measured by these authorities, the information was not duplicitous, and the demurrer was properly overruled.

It is next contended the court erred in instructing the jury on the law of the case.

An examination of the record discloses the court instructed the jury as to the law of the case under section 2029, supra. The information being; drawn under such section and the evidence of the state supporting the charge, it was not error for the court to' give the instructions complained of.

No sufficient reason appearing to require a reversal, the cause is affirmed.

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


text:
    DON BERRY v. STATE.
    No. A-8613.
    Jan. 12, 1934.
    (28 Pac. [2d] 719.)

      W. H. Loofbourrow and R. B. Loofbourrow, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, who will hereinafter be referred to as the defendant, was convicted of having possession and under his control a copper still and still worm, and was sentenced to serve 30 days in jail and pay a fine of $50 and cost, and appeals.

The testimony in this case shows that the sheriff and two other officers went to the farm of the defendant, and in his pasture on the farm about a half mile from- the defendant’s home found a complete still in operation. It was located in a draw in what is known as a dugout. There was some whisky and mash at or in the dugout.

The defendant denies any knowledge of the still being on his place, and considerable testimony is offered by the defendant to show the length of time he had resided in that community and his good character. Testimony was also introduced to show that roads going through the pasture led out in different directions.

The evidence for the state and the defendant was submitted to the jury under the instructions of the court as to the law applicable to the facts, and the jury, after hearing all of the evidence, the argument of counsel, and the instructions of the court as to the law applicable to the facts, found there was sufficient evidence to warrant it in finding the defendant guilty, and returned its verdict accordingly.

The defendant has assigned seven errors alleged to have been committed by the trial court, and alleges they are sufficient to warrant this court in reversing the judgment. The brief of the defendant has been carefully-studied in connection with the record in this case, and citations of authorities in defendant’s brief have been read and studied to see whether or not the facts in the cases cited by the defendant were similar to the facts in this case. The facts in many of the cases cited by the defendant are not applicable to the facts in this case.

It is not disputed, in fact it is conceded, that before the jury is warranted in returning a verdict of guilty against a defendant the evidence must be such that the jury may reasonably and logically find the defendant guilty. In this case the jury had before it the facts that still had been found in the pasture of the defendant, about one-half mile from the home of the defendant, where he had been residing for some time; that the pasture was used by the defendant and a part of the inclosure of the defendant’s home place. A dugout had been constructed in this draw, and water had been provided for the still. No evidence was shown that any other person had ever been seen in the pasture hauling anything for the purpose of locating the still or manufacturing whisky. Under these facts and circumstances, there is sufficient evidence to’ warrant the jury in reasonably and logically concluding that the defendant was connected with the still found on his premises.

It would serve no useful purpose to further discuss the questions raised in this case. Suffice it to' say that the record discloses that the defendant was accorded a fair and impartial trial, that the court properly instructed the jury as to the law applicable to the facts in this case, and this court, where there is any competent testimony to sustain the verdict of the jury, will not substitute its judgment for that of the jury.

The evidence is sufficient to sustain the judgment. There are no errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

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


text:
    JIM BALLEW et al. v. STATE.

      No. A-8591.
    Jan. 12, 1934.
    (28 Pac. [2d] 993.)
    H. A. Johnson, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Jim Ballew and Joe Smith were jointly charged in the district court of Logan county with the crime of forgery in the second degree. The jury returned a verdict of guilty against each defendant, but failed to' agree upon the punishment, and the trial judge fixed the punishment of Jim Ballew at imprisonment in the state penitentiary for a term of six years, and the punishment of defendant Joe Smith at imprisonment in the state penitentiary for a term of five years.

The evidence of the state was that the defendants came to Guthrie about the 2d or 3d of November, 1932, and met the prosecuting witness, Tom Withers, at the Fairmont Creamery, where Withers was at that time unloading some beeves for storage in the cold storage plant of the creamery; that defendants represented to Withers they desired to buy a beef to be used at the barbecue! of the American Legion at Perry, on November 11th; that Withers sold them a beef for $18.50; that defendant Ballew represented he was one A. C. Rosamond, and presented a cashier’s check purported to be drawn on the Union Trust & Savings Bank of Borger, Tex., in the sum of $100; that Withers, relying' upon this check to be a true and genuine check and relying upon defendant Ballew to be the aforesaid A., C. Rosamond, -to whose order the check was made payable, took the check in payment of the beef and gave defendant Ballew in exchange $81.50 in money; that Withers advised defendants if they wanted any more beeves they could reach him by telephone at Coyle, Okla.; that on two subsequent occasions, a day or two after the transaction for which defendants were prosecuted, defendant Smith called Withers at Coyle and made arrangements to buy some more beeves, and in payment of these beeves Smith gave Withers two other fictitious and counterfeit cashier’s checks, one in the sum of $75 and the other in a sum greater than the beef came to; that Withers deposited all of these checks in the bank at Coyle, and later they were returned as being counterfeit and fictitious and as there being no such institution as the Union Trust & ¡Savings Bank of Borger, Tex.; and that the defendants thereby defrauded Withers by obtaining three beeves and more than $1.75 in money.

Defendant Ballew testifying for himself admitted he gave the $100 cashier’s check to Withers and that at the time he did so he thought the check was fictitious and of no account, but that he gave the check to Withers on the night of November 4, 1932, in Noble county, in exchange for 36 gallons of whisky and paid Withers $8 in money; that he obtained possession of this check from a purported friend whoi was on his way to Webb City, Mo., and re-, quested defendant to take the check and use it in paying for the whisky for which he had contracted, but did not claim that his friend had made any deal with the prosecuting witness.

It also appears from the evidence that defendant Ballew had been convicted on two previous occasions of violation of the liquor laws; that Smith had likewise been convicted of a violation of the liquor laws; that their negro friend, Porter Williams, had also been convicted of violation of the liquor laws.

It is first contended the court erred in overruling the demurrer to the information.

This assignment of error is based on two propositions: First, that the information is duplicitous in that it charges the defendants with two separate crimes, one of which is the possession of the alleged false and counterfeit cashier’s check with intent to utter the same as genuine; and second, that the instrument shows on its face it is not such an instrument as is capable of defrauding anybody.

In Strong v. State, 42 Okla. Or. 248, 275 Pac. 385, this court said:

“Where an accused is charged with forgery in the second degree in selling a forged instrument with intent to injure and defraud, a statement in the information, ‘having in possession such forged instrument/ is incidental to the selling and does not render the information duplicitous. Such allegations are of a continuing transaction and may properly he charged in the information as one offense.”

It is self-evident a person could not exchange or utter a false or bogus instrument without having possession of it, and the fact that preliminary to the charge of passing or uttering the instrument, the pleader charged possession with intent to utter such instrument would not make the pleading duplicitous, as possession with intent to utter is by statute made forgery in the second degree, as is also the uttering of such instrument. The crimes are identical and the one of possession is merged in the one of uttering where the uttering of the instrument follows the possession thereof. The trial judge in its instruction to the jury properly limited their consideration to the acts of these defendants in uttering the particular instrument.

An examination of the record discloses that the second ground — that the instrument shows on its face it is not such a one as is capable of defrauding anybody— arises out of the fact that a clerical error was made in the copying of the instrument alleged to have been forged and counterfeited into the information. The information contains all of the language of the original instrument, but it is transposed in such a way that it appears to be almost unintelligible. This is borne out by the fact that the original instrument was offered in evidence and a true copy thereof appears in the case-made. On its face the instrument introduced in evidence appears to be a cashier’s check for payment of $100. It was in possession of these defendants and they jointly uttered the same. That their purpose was to* defraud the prosecuting witness, Withers, clearly appears from the evidence. The instrument passed by defendants was the equivalent of a certified check on that bank and defendants will not be permitted to rely on a technical defense such as is here interposed as ground for demurrer to the information, when in fact they indorsed the check and uttered and passed it to the prosecuting witness. Defendant Ballew having represented himself to' be the payee of such check, is estopped from claiming any alleged defect on the face of the check, especially after he indorsed it and passed it to the prosecuting witness.

It is next contended the trial court erred in admitting certain alleged hearsay evidence over the objection of defendants.

It appears from the record that the prosecuting, witness deposited this particular check in the bank at Coyle, Okla., and received thereon the sum of $100, the amount for which the check was made payable. It is apparent, therefore, that there was nothing on the face of the check that led the bankers at Coyle to believe it was irregular or,unintelligible. In the course of banking business the check was returned to the bank at Coyle with a slip attached noting that there was no such bank in existence as the Union Trust & Savings Bank of Borger, Tex. At the time of the trial, this slip with the notation on it had been lost and the witnesses, having knowledge of the return of the check and the statements contained in the notation on the slip, were permitted to' testify both as to the return of the check and as to' the reason the same was returned.

It is contended the slip itself was the best evidence of what was on it, and that to permit the witnesses to testify as to the notation on the slip was permitting the introduction of hearsay evidence. This might be true were it not for the fact that it was disclosed that the slip had been lost. Proof of the loss having been made, it was proper to permit the witnesses who had knowledge of the contents of the slip to testify to facts within their knowledge. This evidence related to a business transaction which was conducted in the usual course of banking business, and, in the absence of the slip itself, secondary evidence of its contents was admissible. Boone v. State, 15 Okla. Cr. 29, 175 Pac. 61.

It is next contended the court erred in refusing to give defendants’ requested instructions Nos. 1 and 2.

The trial court in instructions Nos. 2; 3, 7, and 8 correctly stated the law of the case, and in substance those given contain all of the matters asked for in defendants’ requested instructions.

It is next contended the court erred in failing to instruct the jury that it was their duty to fix the punishment.

Neither defendants nor their counsel requested the court to instruct the jury to fix the punishment.

Where defendant does not request this instruction, it is not error for the trial court to fail to- give it. Don Big Elk v. State, 48 Okla. Cr. 240, 290 Pac. 420.

It is next contended the court erred in giving instruction No. 6, which reads as follows: “You are further instructed that testimony has been presented to you that certain witnesses who have testified before you have been previously convicted of a crime, and in that regard you are instructed that no person shall be disqualified as a witness in any criminal action or proceeding by reason of his conviction of a crime, but such conviction shall be considered by you only for the purpose of affecting the credibility of such witness and the weight and value which you shall give to his testimony.”

In this connection it is contended that the crimes referred to in said instruction were only misdemeanors not involving moral turpitude, and that the instruction is erroneous in that it does not confine the jury’s consideration for imprisonment purposes to crimes of felonies or misdemeanors which involve moral turpitude. This court has repeatedly held that a conviction for any crime may be shown for the purpose of affecting the credibility of a witness. Reagan v. State, 35 Okla. Cr. 332, 250 Pac. 435; Strickland v. State, 46 Okla. Cr. 190, 284 Pac. 651.

In Gore v. State, 25 Okla. Cr. 214, 219 Pac. 153, this court held that the question of moral turpitude is not the test.

There was no error, therefore, in the giving of the instruction complained of.

Finally, it is contended the trial court erred in making certain prejudicial remarks in the presence of the jury.

Only one of the prejudicial remarks claimed to have been made by the court was excepted to. This question is not properly before us, for the reason that neither in the motion for a new trial nor in the petition in error filed in this court was the question of prejudice to these defendants because of remarks of the trial judge ever raised. Mobbs v. State, 52 Okla. Cr. 64, 2 Pac. (2d) 974; Langley v. State, 53 Okla. Cr. 401, 12 Pac. (2d) 254.

The Attorney General in his brief says: “These parties are clearly guilty of the crime. The defense interposed was apparently a fabricated one. The court properly instructed the jury on the law of the ease, and in the opinion of the writer of this brief, the only error presented to this court possessing any semblance of merit was never raised in the trial court in the motion for new trial nor by the petition in error filed in this court. It is not a jurisdictional error nor one affecting the substantial rights of these defendants. It would appear, therefore, that if the court believes error was committed and they should recognize the same, although not properly raised, that at most the punishment should be modified and not the conviction reversed.”

Considering the whole record, justice will be done by modifying the judgment and reducing the punishment of defendant Ballew to imprisonment in the state penitentiary for four years and of defendant to imprisonment in the state penitentiary for three years, and, as modified, the cause is affirmed.

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


text:
    JAMES WISWELL et al. v. STATE.
    No. A-8619.
    Jan. 18, 1934.
    (29 Pac. [2d] 134.)

      Watts & Wall, for plaintiff in error.
    J. Berry King, Atty. Gen, and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Haskell county of robbery with firearms, and were each sentenced to serve a term of five years in the state penitentiary.

The facts are about as follows: John Townsend operated a mercantile store at Star, and resided with his wife and daughter in a room connected with his store building. On November 4', 1982, about T p. m., after he had closed, three persons came to his store and sought admittance. He admitted two of them and one remained outside. The two who entered were identified by the state’s testimony as Jim Wiswell and one Benge; they covered Townsend with a gun, required him to put up his hands. Benge then went into the residence part of the building, pointed a pistol at Mrs. Townsend, the young daughter, and Homer Sullivan, a young man who was there at the time. One of them then informed Townsend he had two pistols and required him to produce them, then demanded his money, and forced him to disclose where it was. They then took the two pistols and about $150 in money, and forced all the Townsend party to go to a schoolhouse close by, and there endeavored to put them in the schoolhouse cellar, but, finding it locked, left them at the schoolhouse, telling them to remain there twenty minutes.

Townsend, his wife and Sullivan testified to' the circumstances of the robbery. Townsend identified Jim Wiswell and also a cap later found on Earnest Wiswell. He was not able to' positively identify Benge. The testimony of this witness was somewhat shaken on cross-examination. Mrs. Townsend very positively identified defendant Jim Wiswell and Benge as the two- who came in to the store. She was not able to identify the one remaining outside. Sullivan positively identified two of the defendants — one of those inside and the other outside, stating he saw the one outside in the light and again at the schoolhouse. The defense was alibi. Defendants testified in their own behalf and called a number of witnesses. The testimony introduced by them, if believed by the jury, entitled them to an acquittal.

The only, contention argued is that the testimony is sharply contradicted and the testimony of defendants and his witnesses to prove alibi is so strong and so outweighs the testimony of the state that, as a, whole, the evidence is insufficient to' sustain the judgment. It cannot be contended, however, that there is no competent evidence, nor can it be said that the jury, from the evidence, could not reasonably and logically find defendants guilty. It is a fixed and settled rule that this court will not disturb a judgment, when to do so. it must weigh the evidence and pass on the credibility of the witnesses. Those questions are for the jury.

The rule has its basis in reason. The jury sees the witnesses, observes their demeanor and appearance on the stand, their candor and fairness or the lack thereof, and is in a better position to determine the weight and value of the evidence and the credibility of the witness than any appellate court could be. It was for them to say whether the witnesses for the state identifying the defendants as the persons committing the crime or the testimony of defendants and their witnesses on the question of alibi was true. Certainly, if the jury believed the state’s testimony and did not believe the defendants’ testimony tending to prove an alibi, as from the verdict returned they must have done, this court is not justified in interfering with the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOE ADAMS v. STATE.
    No. A-8618.
    Jan. 18, 1934.
    (28 Pac. [2d] 1113.)
    Perry & Bristow, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with manslaughter in the first degree; was convicted and sentenced to' serve a term of 25 years in the state penitentiary; and appeals.

The substance of the testimony is that the deceased and defendant met in a pool hall operated by Jesse Duran, at 415 S. W. Fifteenth street, Oklahoma City, Okla.; they were both drinking; the deceased, K. C. Jackson, was boisterous, and was interfering with the parties who were playing pool, and the proprietor tried to get him to behave, and he declined to do so; and the proprietor put the deceased out of the pool hall, and told the other parties to get out, as he was going to close. The defendant went out of the pool hall to where the deceased was standing, and there is some testimony to show that the deceased threw a bottle at the defendant. Another party who went out carried a billiard cue. In the difficulty that occurred in front of the pool hall, and near where there was a track, the deceased and defendant came together and defendant used a knife on the deceased; from the wounds received at the hands of the defendant, the deceased some time thereafter died.

The defendant admits he cut the deceased with his knife. All of the testimony shows the difficulty was the result of intoxication, and that the defendant pursued the deceased after he came out of the pool hall and cut him without justification. There is no testimony showing the deceased was the aggressor. The only testimony whatever tending to show any violence of the deceased toward the defendant is that from some place in front of the pool hall the deceased threw a bottle at the defendant, which struck the glass in the building near the defendant. The evidence is sufficient to sustain the verdict, and under the testimony the sentence imposed is not excessive. The question for this court to determine is, 'was the defendant accorded a fair and impartial trial?

The defendant in his argument urges that the court erred in overruling* his motion for a new trial, and argues at length that the court erred in excluding from the consideration of the jury competent, relevant, and material testimony offered by the defendant tending to show that the deceased Avas a man of dangerous, violent, and turbulent character.

When the objection was interposed to the question prouounded to the Avitness as to Avhether or not he was acquainted with the general reputation in the community in which the deceased lived, as being a quarrelsome, violent, racketing sort of a fellow, the court sustained the objection on the ground that the defendant had not laid the “proper foundation. If the defendant desired to reserve the question as to the competency of the testimony sought to be introduced for the determination of this court, the record should contain some showing as to Avhat the testimony of the witness would have been had he been permitted to answer the question. Otherwise this court cannot determine whether or not the accused had been injured by the ruling of the trial court. Stouse et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271.

In Francis v. State, 22 Okla. Or. 287, 211 Pac. 433, in the third paragraph of the syllabus, this court said:

“The trial court committed no error in the exclusion of evidence, as recited in the opinion, where no sufficient showing was made as to what the defendant expected to prove by the testimony of the witness.”

Tbe defendant next urges that the court erred in overruling his demurrer to- the evidence and refusing to give an instruction directing the jury to render a verdict of not guilty. This assignment is without merit, as there is competent evidence to sustain the verdict.

After a careful examination of the record and the assignments of error, we hold that the defendant was accorded a fair and impartial trial. There are no' errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

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


text:
    R. C. ANTHONY v. STATE.
    No. A-8630.
    Jan. 18, 1934.
    (28 Pac. [2d] 1115.)

      Hughey Baker, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of larceny by fraud, and sentenced to serve a term of three years in the state penitentiary and to pay the cost of prosecution, from which judgment and sentence the defendant appeals.

The testimony on behalf of the state, in substance, is as follows: That a short while before the 20th of November, 1931, W. E. Groves was operating a filling station and tourist camp in Tulsa, Okla. He was approached at his filling station by two men who gave their names as Henson and Rockwell, who- asked about a man by the name of R. C. Anthony. Anthony was a brother-in-law of Groves; the parties telling Groves they wanted to locate Anthony, as Anthony was the owner of an oil lease in Texas they desired to purchase in order to square up a block of leases upon which to drill for oil. They also advised Groves that the lease Anthony had was very valuable. Groves advised the parties he did not know where Anthony was. They drove away, requesting Groves to let them know if Anthony showed up. The parties appeared. the second time to see if Groves had heard anything from Anthony.

The testimony further shows that the next day after the parties had been to' see Groves the last time R. C. Anthony appeared at Groves’ filling station, and Groves told Anthony about the two men inquiring for him. The next day, or shortly thereafter, Anthony went to Groves’ house and explained the lease to' him, and Groves went with Anthony to the hotel to talk with the parties. They had what they claimed was an oil lease upon land in Hill county, Tex., and after some discussion they filled in the name of Groves in the lease. This was on or about the 20th of November, 1931, and Groves gave Anthony a check for $2,250; Anthony telling Groves the deal would be closed .in a few days, and he would get his money bacín They told him they had to buy an interest from another party; that the lease was worth several thousand dollars. After the defendant cashed the check that had been given him by Groves, he and the other parties disappeared and were not seen or heard of for several months.

The defendant denies they got the Groves money by fraud, but testified it was an out and out sale, that Groves gave him $2,250 for his interest in the oil lease, and that he did not commit any offense.

It is clearly shown by the record that these two men who gave their names as Henson and Rockwell approached Groves at his filling station some time before Anthony showed up, were acquaintances of Anthony’s, and were operating with him. Anthony called at Groves’ home about the morning of November 20, 1931. It is shown that he and Groves went to the Mincks Hotel, where a conference was held, and then to the Tulsa Hotel, and there delivered to' Groves what they claimed to be a good and valid oil lease and got the check from Groves and cashed it, and the defendant disappeared and was not seen for several months. No> unbiased man can read this record without reaching the conclusion that Henson, Rockwell, and Anthony had entered into a conspiracy to defraud Groves out of the money.

The only question in this case is, Was the defendant accorded a fair and impartial trial, and did the court correctly rule, on the admission or rejection of the testimony, and correctly advise the jury as to the law applicable to the facts in the case?

The defendant, as grounds for reversal of this case, has assigned twenty-one errors alleged to have been committed by the trial court. In his brief, the first question discussed by the defendant is that the court erred in overruling the defendant’s objection to the introduction of any testimony at the beginning of the trial of the case, and denying defendant a continuance when the date was changed in the information, making a discrepancy in the time of two- years. After the trial had started, it was discovered the offense was alleged to have been committed the same day the information was filed.

The defendant urges that the order of the court permitting' the state to amend its information after the trial had begun, by changing the year from 1933 to 1931, was a reversible error, and in support of his contention he cites a number of authorities. After a careful study of the authorities cited by the defendant,. we find that the contention of the defendant that it was reversible error for the court to permit the information to be amended was not well taken, and that the authorities cited do not sustain the contention of the defendant. The amendment the court permitted the county attorney to make to the information did not change the information in substance or form, nor is it shown by the defendant that he was surprised.

In Potter v. State, 47 Okla. Or. 254, 288 Pac. 362, this court in the first paragraph of the syllabus said:

“It is not error to permit a county attorney to amend the information in matter of form or substance, where the same can be done without material injury to the defendant, even though the trial may have begun.”

The question then is, Did the changing of the year in the information materially injure or prejudice the rights of the defendant? The defendant shows by his testimony that he knew the crime for which he was called to answer, that he not only remembered the circumstances leading up to his securing the money of the prosecuting witness, but he testified he secured the money from Groves by the sale of an oil lease, and that he was not acting in conjunction with Henson and Rockwell in securing the prosecuting witness’ money by fraud.

In Elkins v. State, 29 Okla. Or. 175, 233 Pac. 491, in the first paragraph of the syllabus, this court said:

“An information for murder which charges the homicide to have occurred on the 30th day of December, 1923, and from the effects of which deceased died on the 30th day of December, 1922, is not fatally defective. The mistake of date is merely clerical, and its correction by amendment is a matter of form, which may be made even after the jury is impaneled.”

It is not error to permit the county attorney to amend the information in matter of form or substance where the same can be done without material injury to the defendant, even though the trial has begun. Rich v. State, 46 Okla. Cr. 242, 284 Pac. 903.

It is next urged by the defendant that the court erred in permitting hearsay evidence, over the objection and exceptions of the defendant. An examination of the record shows that the defendant was being tried for the crime of larceny by fraud, and that all the testimony complained of hy the defendant was testimony of the prosecuting witness wherein he stated that certain parties came to his place and inquired for the defendant prior to' the day of the alleged offense. The defendant earnestly urges that it was error for the court to permit the prosecuting witness to say anything about Henson and Rockwell coming to him and inquiring for the defendant. Under the theory of the state, the defendant is charged with larceny of this money by fraud and that Henson and Rockwell were co-conspirators with him. The contention of the defendant that the court admitted hearsay testimony is untenable and without merit.

It is next urged by the defendant that there is a variance between the proof and information, and that the court erred in not sustaining the defendant’s motion to instruct the jury to return a verdict of not guilty by reason of the variance between the information and proof. This contention of the defendant is based upon the fact that the information charged that the crime was committed by the defendant in concert with Richard Doe and John Doe, and that it does not charge the real names of Richard Doe and John Doe were unknown to the pleader, and that the evidence shows that the names of Henson and Rockwell, alleged to be connected with the defendant, were known to the pleader at the time the information was filed, and therefore there is a variance in the proof and the information.

It is immaterial to this defendant who was named as his codefendants. The crime was identified by other material allegations in the information, and the facts clearly show that the names of the other parties alleged to be co-conspirators with the defendant were known to him. We do not think the defendant or his counsel were misled by the names used in the information. However, this is not a new question in this court. This question was before this court and decided adversely to’ the contention here urged in Winfield v. State, 18 Okla. Cr. 257, 191 Pac 609.

It is also contended by the defendant that the trial court erred in permitting the county attorney to indorse the name of Mrs. W. E. Groves on the information after the case was called for trial. Under section 2511, O. O. S. 1921, now section 2829, Okla. Stat. 1931, permission to indorse names of additional witnesses on the information at the trial is a matter resting entirely within the sound discretion of the trial court, and, unless it clearly appears it was an abuse of discretion, and that it was prejudicial to the substantial rights of the defendant, it will not be held reversible error.

There is nothing in the record to show that the court abused its discretion in permitting the county attorney to indorse the name of Mrs. W. E. Groves on the information, or that it was prejudicial to the substantial rights of the defendant. The testimony given by Mrs. Groves was cumulative. Harrell v. State, 36 Okla. Cr. 225, 253 Pac. 516.

In Ireton v. State, 29 Okla. Or. 266, 233 Pac. 771, in the fifth paragraph of the syllabus, this court said:

“This court will not reverse a case for an error in any matter of pleading or procedure, unless, after an ex-animation of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.”

All of the questions raised by the defendant have been considered by the court, and we hold that neither of the assignments possesses sufficient merit to warrant a reversal. It is clear ífrom¡ the record in this case that the defend-* ant, who was a brother-in-law of the prosecuting witness, conspired with Henson and Rockwell to fleece the prosecuting witness out of his money by fraud. Their scheme shows to have been carefully planned; the parties appearing at the business place of prosecuting witness and inquiring for defendant, returning again to inquire if the prosecuting witness had heard anything from the defendant, and the next day the defendant showed up at the place of business of the prosecuting witness; every step, every act, conclusively showing a scheme had been laid for the purpose of taking the money of the prosecuting witness. The defendant knew all about the other parties being in the city of Tulsa at the time of the alleged crime; they were in the hotel lobby where they could consult and advise the defendant..

The evidence in this case shows the defendant guilty. He was accorded a fair and impartial trial, and no unbiased jury could have reached any other, conclusion than that of his guilt. The evidence is sufficient to sustain the judgment. There are no errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

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


author: PER CURIAM.

text:
    Ex parte ROBERT C. SHERMAN.
    No. A-8675.
    Jan. 30, 1934.
    (29 Pac. [2d] 1118.)
    Ellmore C. Pinnick, for petitioner.
    Lewis R. Morris, Co. Atty., for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus in which petitioner is charged with murder in Oklahoma county and was held by the committing magistrate for the district court.

Petitioner alleges that there is not any showing of probable cause and proposes that he be discharged, but in the alternative defendant prays that, in case the court should: find a showing of probable cause, he be admitted to bail.

Upon a consideration of the testimony before the committing magistrate, we are of the opinion that there is a showing of probable cause. Upon the question of bail the county attorney admits and the court is of the opinion that bail should be granted.

It is therefore ordered that bail be fixed at the sum of $15,000, sureties to be approved by the court clerk of Oklahoma county, and, when so approved, petitioner is to be enlarged on said bail.


text:
    G. H. STAGGS et al. v. STATE.
    No. A-8611.
    Feb. 2, 1934.
    (29 Pao. [2d] 135.)

      J. Q. A. Harrod and L. W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of having possession of one complete copper still, and were each sentenced to pay a fine of $150, and to be confined in the county jail for a period of 60 days, and both defendants appeal.

The testimony on behalf of the state shows that Don Stone and other officers went to a house; the location and description being a one-story frame house and outbuildings located the first house east of the Oklahoma City and Norman Interurban, in the northeast quarter of section 34, township 11, range 3, in Oklahoma, county, Olda. When the officers arrived at the house, they found both G. H. Staggs and S. H. Staggs there; they also found a whisky still set up, 250 gallons of mash, and 6 gallons of whisky. G. H. Staggs claimed he had just recently been released from the jail at Enid and had only been at home a day or two. The father claimed he was crippled and unable to work. The house where the still, mash, whisky, and the defendants were found was occupied by S. EL Staggs’ son-in-law and daughter, Mr. and Mrs. Shepard, neither of whom was found anywhere near the place. S. H. Staggs claimed he was unable to work and had nothing to do with the still, mash, or whisky; that he did not live there; that the house was occupied by his son-in-law and daughter.

The defendants called C. M. Brantley, who stated that S. EL Staggs, the father of G. H. Staggs, lived near him in the oil field, some distance from the house where the defendants were found; they used water from the same well or hydrant; the defendant S. H. Staggs was in such health he could hardly get around the place; the defendants came to town the morning they were arrested in the afternoon with Mr. Brantley and left him in the city. The defendants state that, as they were returning from the city, near this house they met Mrs. Shepard, the daughter of S. EL Staggs, and she took the car to go get groceries, and these defendants went on up to' the house where the defendants were found and arrested. The foregoing is the substance of the testimony. It would serve no useful purpose to set the testimony out in full.

The defendants have assigned four errors alleged to have been committed by the trial court. The first assignment; is the court erred in failing and refusing to permit the attorney for the defendants to make inquiry upon impaneling the jury upon the bias and prejudice of the jurors concerning the defendants and each of them. The defendants insist that the court should have permitted the jurors to answer on their voir dire the following question: “If the evidence in this case should disclose that the defendants, and each of them, have heretofore been convicted of the violation of the National Prohibition Act, would that prejudice you against them at the outset in the trial of this case?”

It is urged by the defendants that, in view of the fact that the defense of the defendant <3. H. Staggs was predicated upon the fact that he had just served 125 days in the county jail in Garfield county, for a violation of the National Prohibition Act (27 TTSCA), by reason of his incarceration it was impossible for him to have committed the crime alleged in the information, and that the defendant had a right to know whether the fact of his former conviction of the violation of the Prohibition Act would prejudice the jurors against him, and defendants further urge that the defendant S. H. Staggs had also been convicted upon a violation of the prohibition law and that he had a right to know whether his former conviction would prejudice the jurors against him.

There is no showing made by the defendants that they, or either of them, were forced to trial before a prejudiced jury, or that any member of the panel that sat in the trial of their case was influenced directly or indirectly by the fact that the evidence disclosed a former conviction for a violation of the prohibition law.

This court, in Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029, said:

“A juror cannot be disqualified on Ms voir dire by asking him if it would have any bearing upon him in rendering his verdict in a case if it should develop during the trial that the defendant had prior thereto been convicted of manslaughter, and it is not error for the trial court to refuse to allow such question to be answered.”

We think the question propounded to the jurors by the defendants was proper, and that the court should have permitted the question and required the jurors to answer, as the defendants had a right to inquire of the jurors on their voir dire and test their knowledge and to ascertain whether or not the jurors might be prejudiced against them. However, considering all the facts and circumstances in this case, we do not think that the action of the court in sustaining the objection to- the question propounded is such an error as would justify this court in reversing this case.

It is next urged by the defendants that the application for the search warrant and the search warrant under which the officers made the search was. insufficient tO' justify the issuance of the warrant for the search of the premises. After examining the affidavit for the search warrant and the search warrant, we hold the affidavit was sufficient to- predicate the issuing of the search warrant, and the search warrant sufficiently described the premises.

The third and last question argued by the defendants is that the verdict of the jury is contrary to- the law and the evidence. In brief, the testimony shows the defendants were at the house where the mash and whisky was found in a room where the still was located. The defendants denied they had anything to do with the still or mash or the whisky found there; that the house was occupied by a Mr. and Mrs. Shepard, who were a son-in-law and daughter of S. H. Staggs. Neither Mr. or Mrs. Shepard appeared at the trial, and the defendants’ testimony shows they did not know where they were. The jury heard the testimony and had an opportunity to judge the demeanor of the witnesses while on the stand, and, under the proper instructions of the court-, found against the defendants. This court has many times held that, where there is any competent evidence, though conflicting, to sustain the verdict, this court will not interfere. There is little conflict in the testimony; the only conflict being that the defendants denied they lived at the house or had anything to' do with the still that was found.

The evidence is sufficient to sustain the verdict. The defendants were accorded a fair and impartial trial. No errors appear in the record to warrant a reversal.

The judgment of the trial court is affirmed.

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


text:
    STATE v. W. L. BEAVERS.
    No. A-8584.
    Feb. 2, 1934.
    (29 Pac. [2d] 133.)

      J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty. (Charles H. Garnett, of counsel), for the State.
   CHAPPELL, J.

This case is an appeal by the state from an order and judgment of the district court of Oklahoma county sustaining a motion of defendant to quash and set aside the information .filed against him in that court upon the ground the evidence before the examining magistrate on preliminary examination was insufficient to show the crime charged had been committed.

The information alleged defendant embezzled the sum of $5,000 intrusted to' him by one M. E. Stinson for the purpose of paying' certain salesmen for the sale of corporation stock in which Miss Stinson was interested.

The evidence of the state was that Miss Stinson was taken to the office by defendant and introduced to one C. R. Prunty, at which time defendant and Prunty represented to her that certain salesmen were then in his office ready to- begin the sale of stock, and that this $5,000 had to be in their hands before the sale began, to be used in paying the expenses of these salesmen; that acting on these representations, Miss Stinson gave defendant a check for $5,000'; that as soon as defendant and Prunty were able to' reach the bank, they cashed the check, defendant taking $500 and Prunty $4,500, none of which they used to pay the expenses of the stock salesmen, but used the same in payment of their personal bills; that Prunty lives - outside of the state, having left the state shortly after the commission of the crime, and has never been apprehended.

Defendant is charged with embezzlement under section 2124, C. O. S. 1921, which reads as follows:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise intrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

The particular part of this statute applicable to the offense of defendant is:

“If any person being * * * intrusted with or having in his control property for the use of any other person, * * * fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, * * * he is guilty of embezzlement.”

This evidence of the state clearly shows that defendant was intrusted by Miss Stinson with the sum of |5,000 to be expended for her use and benefit in the matter ]>£ selling stock in the Arklahoma Company, and that he fraudulently appropriated it to another use and purpose not in the due and lawful execution of his trust.

This court has many times announced the rule that evidence before a, committing; magistrate need not be sufficient to support a conviction upon trial, but if there was any evidence from which a reasonable mind might draw the conclusion that a crime had been committed and defendant was probably guilty thereof, the action of the magistrate in holding him to answer in the district court should be sustained. Ex parte Miller, 29 Okla. Cr. 301, 233 Pac. 775; Ex parte Bambo, 31 Okla. Cr. 214, 238 Pac. 869; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925; State v. Harris, 44 Okla. Cr. 116, 279 Pac. 925; Ex parte Eason, 45 Okla. Cr. 211, 282 Pac. 684.

When the evidence introduced by the state is measured by these authorities, the state not only established that a crime had been committed, but also, introduced sufficient evidence to show defendant probably guilty of the offense.

. The case is therefore reversed with directions to the court toi proceed with the trial of the case in accordance with this opinion.

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


text:
    C. C. (CHARLIE) McCURDY v. STATE.
    No. A-8624.
    Feb. 2, 1934.
    (29 Pac. [2d] 132.)
    George H. Giddings, Jr., and R. H. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as. the defendant, was convicted of having possession of intoxicating liquor with the intent to. barter, sell, give away, and otherwise furnish to others, and sentenced to .pay a fine of $75, and to be imprisoned in the county jail for 30 days and pay the cost of the prosecution.

From a reading of the record in this case we find in substance that the officers went to defendant’s place and searched the same and failed to find anything on the premises, or upon any of the lands owned or controlled by him, but did find sixty-two gallons of whisky on land near the defendant not in the possession or control of the defendant. A number of witnesses testified in behalf of the defendant as to the location where the whisky was found, and to his previous good character.

The first assignment of the défendant is that the court erred in overruling the motion for a new trial. In the motion for a new trial, it is urged that the evidence is insufficient to sustain the judgment. With this contention we agree. While the circumstances and surroundings indicate that defendant must have known something of the whisky found on the adjoining property, yet there is no testimony showing that he had exercised ownership, possession, or control over the land where the whisky was found, or that he had in any way whatever been connected with this whisky for which he is charged with having possession with intent to barter, sell, give away, or otherwise furnish to others.

There being no competent evidence in the record to sustain the judgment, the case is reversed.

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


text:
    MOSE AUSTIN v. STATE.
    No. A-8625.
    Jan. 12, 1934.
    Rehearing Denied Feb. 2, 1934.
    (28 Pac. [2d] 1113.)
    W. F. Duncan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error Avas convicted in the county court of Blaine county of having, unlaAvful possession of Avhisky and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

This appeal must he dismissed for two reasons :

First. The notice of appeal Avas not served on the court clerk as required by section 3193, Okla. Stat. 1931, but was served only on the county attorney. The failure to serve the court clerk is jurisdictional. Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

Second. The case-made was not served on the county attorney within the time fixed by law nor within any legal extension of time.

Section 3192, Okla. Stat. 1931, provides that an appeal from a misdemeanor may be taken in 60 days, or upon good cause shown the trial judge may extend the time not to exceed 60 days additional. In the instant case judgment was entered on the 29th day of May and no order of extension was made till the 29th day of July, 61 days from the date of judgment. Time is computed by excluding the first day and including the last. Section 22, Okla. Stat. 1931; Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PEE CURIAM.

text:
    BILL BRATCHER v. STATE.
    No. A-8610.
    Jan. 5, 1934.
    Rehearing Denied Peto. 2, 1934.
    (28 Pac. [2d] 1118.)
    J. T. Roberts, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEE CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Nowata county of theft of domestic fowls, and was sentenced to serve a term of one year in the state penitentiary.

Judgment was rendered on tlie 2d day of February, 1933, and the appeal was lodged in this court August 2, 1933. No briefs have been filed in support of the appeal, and no appearance was made for oral argument.

Upon a careful examination of the record, we find the judgment amply supported by the evidence and observe no material errors.

The case is affirmed.


text:
    DAISY BLAIR v. STATE.
    No. A-8550.
    Nov. 24, 1933.
    Rehearing Denied Deb. 16, 1934.
    (29 Pac. [2d] 998.)
    Karl D. Cunningham, for plaintiff in error.
    J. Berry King, Atty. Gen., and George J. Fagin, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having in her possession intoxicating liquor, with intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to pay a fine of $50 and be confined in the county jail for 41 days, and appeals.

The testimony shows that the sheriff of Kingfisher county, together with other officers, went to the home of the defendant with a search warrant; when they got to the home of defendant and made their presence known, the defendant went into a room where there was a closet, and, when the officers got in the house, they found a keg turned over and the contents pouring through a hole in the floor to the ground. The testimony shows that the officers got a sponge and sponged up about a half pint of whisky. The defendant admitted it was whisky, and said it was for the purpose of using and not for the purpose of sale. There was no evidence offered by the state of the sale of any intoxicating liquor by the defendant. The above is in substance the testimony on behalf of the state and defendant.

Several errors have been assigned by the defendant as grounds for reversal. It is urged by the defendant that the justice of the peace was without jurisdiction to issue the search warrant, for the reason that the title of the officer before whom the state claims the affidavit for the search warrant Avas made Avas not attached to the complaint. As examination of the record clearly shows, that the complaint upon which the justice of the peace based the search Avarrant did not have the title of the justice following his name, but, upon a hearing on the motion to' quash the search warrant, the defendant called as a witness in support of her motion to quash the search Avarrant V. D. Firestone, and. among other questions propounded to him were the following, to which he gave the following answers:

“Q. Is that the original criminal complaint filed in this matter? A. I think so. Q. is the signature your original signature? A. Yes, sir. Q. This complaint was sworn to by you before Clay O. Oaks, justice of the peace of Kingfisher county, Oklahoma? A. Yes.”

Section 3223, Oklahoma Statutes J U31, is as follows:

“A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing' the person, and particularly describing the property and the place to be searched.”

.Section 3224, Oklahoma Statutes 1931, states:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.”

The justice of the peace failed to attach his title to the jurat attached to the affidavit made by the witness V. D. Firestone for the search warrant. His failure to do so did not make the statement in the complaint void, and the defect could have been cured by the court at any time its attention was directed to it by having the justice come into court and attach his title to. the complaint. The defendant saved the state the trouble of calling the justice of the peace by placing the witness who. had sworn to- the complaint on the stand, and asking him the direct question, if he had sworn to the complaint, and he answered he did.

The defendant cured the defect in the complaint, and cannot be heard to complain. Blackburn v. Commonwealth, 202 Ky. 751, 261 3. TV. 277; James v. State, 188 Ind. 579, 125 N. E. 211; Warren et al. v. State, 35 Okla. Cr. 430, 251 Pac. 101.

It is further urged by the defendant that the complaint upon which the search warrant was based was insufficient, and was based upon hearsay evidence, and not upon facts within the knowledge of the party making the affidavit for the search warrant. The truth of an affidavit to procure the search, warrant positively sworn to is not an issue in the trial of a case in which evidence procured by such search warrant is offered. Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451.

The motion of the defendant to quash the warrant of arrest and information was properly overruled.

It is further urged by the defendant that the evidence in this case is insufficient to sustain the judgment. With this contention we cannot agree, yet it is true the amount of whisky recovered was small, and there is a total failure of any evidence to show that the defendant was selling, giving away, or furnishing whisky to others.

Considering the circumstances in this case, and the action of the defendant when the officers went to. search her home, and the fact that she was pouring something out of a keg, we hold the evidence sufficient to sustain the judgment.

The case is affirmed.

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


text:
    PRANK TEAGUE v. STATE.
    No. A-8622.
    Feb. 16, 1934.
    (29 Pac. [2d] 994.)

      F. R. Blosser and Amey & Barker, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted of burglary in the second degree in; the district court of Roger Mills county and his punishment fixed at two years in the penitentiary.

It appears the teacher and officers of the Diamond Front- school district of Roger Mills county had lost coal from their coal house, and for the purpose of detecting the guilty person they bored holes in certain lumps of coal, put paper with marks of identification in, and sealed, which lumps were then replaced in their coal bin. At the time charged the coal house was broken into and. coal stolen. The tracks of a car were followed to defendant’s home about five miles away, a search under a warrant made, and the identical lump's of coal with the identifying marks in them found in defendant’s coal pile. Also a stone which had been used for a hammer and thrown in the coal pile at the school building was found in defendant’s coal pile. The defense was alibi.

It is argued the evidence is insufficient to sustain the judgment. With a state of facts as detailed a defense must have been extremely difficult. That some person unknown to defendant on a cold December night committed the burglary and pnt this coal at defendant’s premises is out of the picture. It is too unreasonable. The contention is wholly without merit.

The only other contention made is that the court’s instruction No. 5 is erroneous. This instruction is:

“You are instructed that when the fact that a burglary has been committed has been shown, and the question is whether or not the defendant committed such burglary, his possession of property which was contained in said building at the time of said burglary, or of a part thereof, at a time not too long after said burglary, is a circumstance for the jury to> weigh and consider, in connection with all the other facts and circumstances in the case. Its significance will vary with its special facts, and with the other facts in the case, among which are the nearness or remoteness of the proven possession to the burglary ;■ the nature of the property as passing readily from hand to hand or not; what explanation the defendant made, if any, of the possession of said property when same was found in his possession; together with such other facts and circumstances as would reasonably influence the opinion of the jurors as to the guilt or innocence of the defendant.”

No exception tO' this instruction was taken at the time it was given. The instruction is not erroneous. Bradley v. State, 18 Okla. Or. 503, 196 Pac. 730.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOHN SHERWOOD v. STATE.
    No. A-8647.
    Feb. 16, 1934.
    (30 Pac. [2d] 197.)

      A. V. Dinwiddie, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to- as the defendant, was convicted of a second and subsequent offense of a violation of the prohibition laws, and sentenced to- pay a fine of |300 and imprisonment in the state penitentiary for a year and one day, and appeals.

The testimony in this case shows that defendant was intoxicated on the streets of Cushing, Payne county, Okla., in front of the Cherry Rooms that defendant and his wife were operating; that defendant got in his car, and asked W. F. Stroup, who was a police officer of the city of Cushing, to> get in the car with him; he would start the motor of his car and the officer would turn it off. The officer looked back in the car between the two seats and saw a grip containing four glass jars of whisky; the defendant was arrested and taken to the city jail; the officers searched his car and found two gallons of whisky in the trunk of the car.

Before proceeding with the trial the defendant moved to suppress the evidence on the ground that it was unlawfully secured by tbe officers, as they did not have a search warrant to search his car, or a warrant for his arrest, which motion was overruled and defendant duly excepted.

The defendant offered no proof. The defendant, among other cases to sustain his contention, cites the case of Rambo v. State, 38 Okla. Cr. 192, 259 Pac. 602. On a careful reading of this case we find that the facts in the Rambo Case are not similar to the facts in this case, that this court has repeatedly held that when a person is lawfully arrested by an officer without a warrant for an offense committed or attempted in his presence, the officer may take from the immediate person of the person arrested the tools, implements, papers, and instrumentalities which have been or manifestly may be used to commit the crime for which such person is arrested, and the seizure of such instrumentalities is not in violation of the Bill of Rights (Const. art. 2, § 30) against such search and seizures. In this case the proof shows the defendant was intoxicated upon the streets of the city of Cushing, and the officers had a right to arrest him without a warrant.

In Smith v. State, 51 Okla. Cr. 119, 299 Pac. 243, this court in the syllabus said:

“Where a person is legally arrested for an offense, whatever is found upon his person or in his control, which is unlawful for him to have and which may be used to prove the offense, may be seized and held for evidence in the prosecution.”

When the officers found the defendant on the streets of the city of Cushing in an intoxicated condition, they had the right to arrest him and then search his person, or his car. The evidence is sufficient to sustain the judgment. The court did not err in overruling the motion of the defendant to suppress the evidence. There are no errors in the record warranting a reversal. The defendant seems to be a chronic violator of the law. The judgment is sustained by the evidence, and the case is affirmed.

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