text:
    OLLIE HOOD v. STATE.
    No. A-5854.
    Aug. 12, 1927.
    (258 Pac. 1064.)
    Morgan, Osmond & Morgan, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The appellant, Ollie Hood, and Earnest Hood were jointly tried for the offense of manufacturing intoxicating liquor. The jury returned a verdict finding Earnest Hood not guilty, and finding appellant guilty, and fixed his punishment at a fine of $150 and confinement in the county jail for 45 days. From the judgment rendered in pursuance of the verdict, he appeals and makes numerous assignments of errors, only one of which it will be necessary to consider.

C. R. Flynn, a deputy sheriff, testified that with his brother he visited appellant’s farm, three or four miles north of Cement; that they were armed with automatic pistols and a shotgun, and about midnight they left their car parked on the highway near appellant’s farm and proceeded through the fields to an old house on the place, and about half a mile from the highway; that they watched the house for three or four hours, then appellant came, and they held their guns on him and told him to throw his hands up. They searched him and then searched the house; that appellant’s son was sitting on a cot; that they found a still in operation and about five gallons of whisky; that they arrested both the Hoods, and leaving his brother to guard the still he brought the prisoners to Anadarko in appellant’s car, which appellant volunteered to drive; that neither he nor his brother had a search warrant.

The record shows that when arraigned appellant made a motion to suppress the evidence on the ground that it had been obtained in violation of his constitutional rights, which motion was overruled. All of the evidence was admitted over appellant’s objection. At the close of the evidence for the state there was a motion to strike and a motion for a directed verdict of acquittal, which motions were overruled.

This court is committed to the doctrine that, when properly invoked, the first clause of section 21 of the Bill of Rights protects every person from incrimination by the use of evidence obtained through search and seizure made in violation of his rights under section 30 of the Bill of Rights. The admitted acts of the officers show that they acted without authority of law, and that all the state’s evidence was procured through an unlawful search and seizure by such officers in violation of appellant’s constitutional right to be “secure in their persons, houses, papers, and effects against unreasonable searches or seizures” (section 30, Bill of Rights), and that the same was admitted over appellant’s objections in violation of his constitutional right that “no person shall be compelled to give evidence which will tend to incriminate him” (section 21, Bill of Rights), See Jones v. State, 36 Okla. Cr. 180, 253 P. 310.

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

EDWARDS and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    H. C. FROMCKE v. STATE.
    No. A-5871.
    Opinion Filed Aug. 12, 1927.
    (258 Pac. 927.)

      Ash and Jones, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction and sentence of imprisonment in the county jail for 45 days and a fine of $300, rendered upon a plea of guilty to a charge of unlawful possession of intoxicating liquor. The information was filed June 9, 1925, the same day upon arraignment appellant entered a plea of guilty. Thereupon the county judge informed appellant that he would take the matter of punishment to be imposed under advisement until the 1st day of August, and fixed the appearance bond in the sum of $1,000, requiring him to appear and be before the court on said day for judgment and sentence.

On the 27th day of July, appellant, having consulted counsel, filed his motion asking that he be permitted by the court to withdraw his plea of guilty and enter his plea of not guilty. On August 1st, appellant presented said motion to the court, together with his testimony and the testimony of J. G. Springer, county attorney, in support thereof. After hearing said motion, the court overruled the same and allowed exceptions, and thereupon pronounced judgment and sentence.

To reverse the conviction appellant assigns as error that the order of the court overruling the motion to set aside the judgment and grant a new trial was contrary to law, and was an abuse of the court’s discretion.

Appellant’s motion, duly verified, for leave to withdraw his plea, of guilty alleged that it was procured by threats and intimidation, and that he is not guilty of the crime charged; that he was never arrested before and was inexperienced in matters before a court; and that he was caused to enter said plea of guilty because of threats of federal officers.

Upon the hearing appellant’s testimony shows that on June 9th he was arrested and brought before the court in custody of two deputy sheriffs and three federal prohibition officers, namely, Frank Klingleschmidt, J. P. Ellison, and D. A. Tucker; that while on the way to Co.rdell in custody of said officers, and while at the courthouse in their custody during the time said information was being prepared by the county attorney at the instance of said J. P. Ellison the complaining witness the said J. P. Ellison told appellant that if he did not plead guilty before the county judge to the charge of unlawful possession of whiskey that he would take him to Oklahoma City and file a complaint against him in the federal court, and that - if they did he would be there placed in jail and held for a week or more before he could make bond, but if he would plead guilty before the county judge they would have the court postpone ¡sentence, which would be much better for him; that he had never before been arrested, was ignorant of court procedure, was not represented by or did not have the aid of counsel and did not fully understand his legal rights; that not having friends at Oklahoma City, and fearing that it would be impossible for him to make an appearance bond in the federal court, and believing that if he was taken to Oklahoma City he would be confined in jail for an indefinite period of time, and that if confined he would be greatly damaged by being detained from harvesting a large wheat crop which was then nearly ready for harvest, he was thereby induced to and did plead guilty to the offense charged in said information.

J. G. Springer, county attorney, testified that he prepared the information at the request of J. P. Ellison, who claimed to be a federal enforcement officer and said that if the defendant did not plead guilty he was going to take him to Oklahoma City, and further stated, “I am going bo make him plead guilty or I will take him to Oklahoma City,” and further stated that if the defendant entered a plea of guilty the sentence day would be postponed, and asked him if he had any objection, and he told him none whatever; that he was not present when the defendant was arraigned and entered his plea.

Our Code of Criminal Procedure provides as follows:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” Section 2621, C. S. 1921.

Construing this provision in Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298, it is held:

“A motion in a misdemeanor case to withdraw a plea of guilty and to substitute therefor a plea of not guilty is addressed to the sound discretion of the court. Consequently its decision will not be disturbed, unless an abuse of discretion appears.”

In Morgan v. State, 33 Okla. Cr. 277, 243 P. 993, it is held:

“A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, persuasion, promise, or ignorance.”

And see Tipton v. State, 30 Okla. Cr. 56, 235 P. 259, and Hart v. State, 9 Okla. Cr. 414, 233 P. 1095.

In Turner v. State, 33 Okla. Cr. 97, 242 P. 1053, it is held:

“The defendant in a criminal action should be permitted to withdraw his plea of guilty, given unadvisedly, either before or after j'udgment, where any reasonable ground is offered for going to the j'ury.”

Upon the undisputed facts as shown by the record we are of the opinion that the overruling of the motion to vacate and set aside the opinion was a manifest abuse of judicial discretion.

The judgment of the lower court is accordingly reversed, and the cause remanded for proceedings consistent with this opinion.

DAVENPORT, J., concurs.

EDWARDS, J., absent, not participating.


text:
    HOWARD JAY v. STATE.
    No. A-5852.
    Opinion Filed Aug. 12, 1927.
    (258 Pac. 1060.)
    Morgan, Osmond & Morgan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the.State.
   DOYLE, P. J.

Appellant, Howard Jay, was convicted of transporting intoxicating liquor and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. When arraigned, appellant made a motion to quash the information, on the ground that the evidence had been obtained in violation of his constitutional rights, which was overruled, exception taken, and the ruling assigned as error.

The undisputed facts are that officers, in executing a search warrant, visited the home of Harry iSalyers. Appellant drove in from the highway to the house in a Ford car and stopped by the side of the house. The officers went out, and appellant got out of the car, and broke a half pint of whisky over the rear fender, and was arrested by the officers. In the car was a five-gallon jar, which had contained whisky. Appellant did not testify as a witness. An examination of the record discloses that the evidence for the state supports the allegations of the information; that appellant, by his own acts committed in the presence of the officers, was lawfully arrested in the commission of an offense.

Upon the undisputed facts it is not necessary to determine in this case whether the search warrant in question was properly issued.

Finding no errors of law, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    BLONDIE BURTON v. STATE.
    No. A-5864.
    Opinion Filed Aug. 12, 1927.
    (258 Pac. 1059.)

      H. A. Grove, for appellant.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The appellant and his wife were jointly charged with the possession of 4% pints of whisky, with the unlawful intent to sell the same. On the trial his wife was acquitted and he was convicted, the jury fixing the penalty at a fine of $100 and imprisonment in the county jail for 30 days. To reverse the judgment rendered on the verdict he appeals, and assigns as error that the verdict is not sustained by sufficient evidence and is contrary to law, and that the court erred in overruling the motion to suppress evidence.

The state relied for this conviction, upon the testimony of W. S. Mayfield, a deputy sheriff, to the effect that he visited the defendant’s place, consisting of 10 or 20 acres, 3 or 4 miles from Tulsa, in executing a search warrant; that he had a federal man with him and another officer; that the defendants and two men were at the place, and they searched them, and he found a half pint of com liquor on the person of one of the men and a vinegar cruet under the table containing something like a half pint of liquor. That they then proceeded to search the premises, then witness went south of the house about 60 steps and picked up 2 pints of liquor covered up in the grass and proceeded south of there about the same distance and found 2 more pints of liquor; that he made the affidavit for the search Warrant; that the search warrant could not be found; that they destroyed all the whisky except this in the vinegar pitcher.

On cross-examination he stated that the place where he found the 4 pints of whisky was on the adjoining pasture to the defendant’s place.

At the close of the testimony, counsel for the defendants moved to withdraw the testimony of the witness with reference to the 4 pints found on another place, and as to the half pint found on the person of another at the home of the defendants, which motion was overruled.

Thereupon the defendants each separately moved for a directed verdict of acquittal, which motions the court overruled.

The defendants each testified in their own behalf and denied ownership of the whisky found; that they conducted a truck farm and were never before arrested. That Mr. Cannon came into the house and had some liquor in a fruit jar; he wanted a bottle to put it in, and appellant found a half pint bottle, which Cannon filled and placed in his pocket and then poured what was left in the fruit jar into the vinegar cruet.

C. D. Bardon testified that he lived on his brother’s place 10 years, taking care of oil leases; that appellant was the owner of 30 acres near by; that driving by he stopped to visit the Burtons, and while he was there Mr. Cannon came in with about a pint of whisky in a fruit jar; that he drank some of it and Cannon filled a half pint bottle and put it in his pocket; then poured what was left into a vinegar pitcher; that about that time the officers came in and arrested the defendants and Cannon and the witness, searched them, and then searched the place.

In our opinion, the evidence offered on behalf of the state wholly fails to prove the offense charged, in that neither actual nor constructive possession by the defendants of intoxicating liquors, as alleged, was shown.

The testimony of the only witness for the state shows that the 4 pints of whisky found by him were not on the premises of the defendants. In prosecutions of this kind, in order to prove an intent to violate the law, the possession of intoxicating liquors must first be shown. That was not done in this case.

The evidence being insufficient to support the verdict, we deem it unnecessary to discuss the other questions arising in the case.

For the reasons stated, the judgment of the lower court is reversed.

DAVENPORT, J., concurs.

EDWARDS, J., absent, not participating.


text:
    FRED BOSWELL v. STATE.
    No. A-5920.
    Opinion Filed Aug. 18, 1927.
    (258 Pac. 1074.)
    Huggins & Huser, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant was convicted on a charge of unlawfully transporting one gallon of alcohol from the W. B. drug store in Slick City to another point in Hughes county, about three-quarters of a mile east of Slick City, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and confinement in the county jail for 30 days.

The errors assigned are, in substance, that the verdict is contrary to the law and the evidence; that the court erred in admitting- evidence obtained by an illegal search and seizure; and that the court erred in excluding competent evidence offered, by appellant.

The state relied for this conviction upon the testimony of L. C. Stockton, to the effect that he drove up to appellant, who was driving east in a car from Slick City, and stopped him and asked him what he had in the car, and appellant said it was alcohol; that he found a gallon can of alcohol in the car; that he did not have a search warrant or warrant for the arrest of appellant. He was then asked if three-quarters of a mile east of Slick City was in Okfuskee county and failed to answer.

On redirect, he stated that the place he arrested appellant was not east of Slick City; that appellant was driving along the section line, and most of the time his car was on the Hughes county line.

The testimony of this witness was admitted against the objections of appellant that the same was obtained by an illegal search and seizure.

At the close of the evidence for the state, counsel for appellant moved the court to instruct the jury to find him not guilty, on the further ground that the proof showed that the offense, if any, was committed in Okfuskee county, which motion was overruled.

Appellant testified that he was employed by the W. B. pharmacy in Slick City, now called Papoose; that the proprietor was a registered pharmacist. The county attorney objected to any testimony as to what appellant was doing “as having nothing to do with the case,”' which objection was sustained.

Counsel for appellant thereupon offered to show, if permitted to testify, “that he was employed by a regularly registered pharmacist conducting the W. B. pharmacy in the city of Papoose, Okfuskee county, that on this day said registered pharmacist also owned the W. B. pharmacy No. 2 in Okfuskee county, and directed appellant, as his employee, to deliver this gallon of alcohol to W. B. pharmacy No. 2 for the purpose of using the same in his business according to the laws of the state of Oklahoma.” The court overruled the offer.

The testimony further shows that both of the W. B. pharmacies, Nos. 1 and 2, are in Okfuskee county.

Sustaining the state’s objection was error. However, we deem it sufficient to say that on the undisputed facts the testimony of the state’s witness was illegally obtained and improperly received.

The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    LULA SOWARDS v. STATE.
    No. A-5899.
    Opinion Filed Aug. 18, 1927.
    (259 Pac. 157.)

      Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Hughes county, March 21, 1924, Claud Heard and Lula Sowards did transport intoxicating liquor. Upon arraignment, the defendant Claud Heard pleaded guilty. The jury returned a verdict finding the appellant guilty and fixed her punishment at a fine of $50 and confinement in the county jail for 30 days.

The errors assigned relate to rulings of the court on the admission of evidence.

The undisputed facts as shown by the testimony of R. B. Templeman and Sunday Narcomy are that these officers stopped the defendants on the highway 3 miles west of Holdenville, appellant driving a team and with her brother in the wagon.

Narcomy testified that they did not have a warrant for the arrest of the defendants and had no search warrant, and did not know the defendants had any whisky in the wagon until they found it; that they found about 4 gallons of whisky covered up with hay in the wagon and arrested the defendants.

The testimony of each witness was admitted over appellant’s objections that the same was incompetent, having been obtained by an illegal search of her person and property.

At the close of the state’s evidence, appellant moved to strike all the evidence obtained by reason of such search and seizure on the ground that the same was made in violation of her constitutional rights, which motions were overruled.

In Childress v. State, 31 Okla. Cr. 208, 238 P. 218, we said:

“It is too familiar to require citation of authority that it is the settled doctrine in this state that, in order to make arrest and seizure without a warrant under section 7014, C. S. 1921, there must be a violation of the prohibitory liquor laws committed in the presence of the arresting officer, and a conviction must be reversed where evidence procured by an officer of the court by means of an unauthorized search and seizure is admitted over the objections of the defendant.”

And see Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Gower v. State, 34 Okla. Cr. 149, 245 P. 67.

The fact that the defendants were conveying liquor not being discoverable without a search, the offense of conveying was not committed in the presence of the officers, and they had no authority to arrest the defendants therefor without a warrant, and the search and seizure was unlawful because made without a search warrant, and not as an incident to a lawful arrest.

We hold, therefore, the evidence challenged in this case was obtained by the officers by unlawful search and seizure contrary to Bill of Rights § 30, and was. improperly received in evidence against appellant in violation of her rights, under section 21, Bill of Rights.

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

EDWARDS and DAVENPORT, JJ., concur.


text:
    IRA BURNS v. STATE.
    No. A-6075.
    Opinion Filed Aug. 18, 1927.
    (258 Pac. 926.)
    E. Y. Rakestraw, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Kiowa county, April 3, 1925, he did unlawfully transport 9y2 gallon fruit jars of whiisky from a point on the section line south of his home to a point about 45 yards from his home, Ira Burns was tried, convicted, and his punishment fixed at a fine of $300 and confinement in the county jail for 30 days.

From the judgment rendered in pursuance of the verdict he appeals and assigns as error that the verdict and judgment are not supported by the evidence, and that the court erred in the admission of incompetent evidence.

For the state, Lee Watson, deputy sheriff, testified that appellant lived about 5 miles north and 2 east of Mt. Park; that on the night of the day alleged with Kyle Hardy he went there about 10 o’clock; that he saw appellant at Mt. Park that night about 8 o’clock, traveling in a Ford car; that while he was waiting on the road near appellant’s home a car came from the west, stopped about 50 yards from where he was standing; that it looked to him that two sacks were taken from the car; that the car then proceeded to the defendant’s house where a dance was in progress; that witness went to the house and saw appellant getting out of the car; that he went back to the place on the road where he had seen the car stop, and picked up the sacks; in one sack was 4 half-gallon jars of whisky and 5 in the other; that it was a moonlight night.

Against the defendant’s objections a transcript of the testimony of the witness Kyle Hardy on a former trial of the case was read to the jury. It is contended that no proper predicate therefor was laid for the introduction of this testimony. The proof showed that the witness Hardy was in the state of Alabama; that a subpoena had issued for him, and the return thereon was that said witness Hardy was not found in the county. The court reporter was then sworn and testified that she had acted as a stenographer in the former trial of the case and had taken the testimony of the witness Hardy.

Upon a careful consideration of the evidence we think the objection was properly overruled. There was no error committed in allowing the subpoena for this witness which had been issued and returned unserved to be received in evidence for the purpose of showing wihat had been done towards making service upon the absent witness.

Where a witness has testified for the state and said cause is tried again, and the state proves that such witness had left the state and a subpoena is issued for such witness to testify on behalf of the state, and the sheriff’s return thereon shows that the witness could not be found in the county, the testimony of the witness given on such previous trial may be admitted. Henry v. State, 10 Okla. Cr. 369, 136 P. 982; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 P. 453.

For the defense three witnesses testified, in substance, that'they were .at the home of the defendant with about a hundred other people, coming in 40 or 50 cars that whre parked near the house in the yard; that they were present when the defendant returned to his home about 10 o’clock that night; that the right rear wheel of his car was without a tire; that they had noticed the car coming, and that it had stopped about a quarter of a mile up the road; that they were present when the officers appeared.

As a witness in his own behalf the defendant testified that he had been visiting his father that day and arrived home between 10 and 11 o’clock; was driving a Ford touring car; that west of his house, about 200 yards, he did stop and took off a casing which had gone down on the right rear wheel and put it in the car and drove in on the rim; that that was the only time that he had stopped; that he had no whisky with him in the car that night and did not deposit any whisky in the ditch by the íoadside; that he knew nothing of the whisky found by the officers; that the next morning the officers appeared at his home and arrested him and took his car.

In our opinion, there was sufficient evidence to sustain the conviction, and it was exclusively for the jury to say whether they would believe the evidence given on behalf of the state or that on behalf of the defendant.

Finding no error in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    W. T. MEYERS v. STATE.
    No. A-6685.
    Opinion Filed Aug. 18, 1927.

      (258 Pac. 922.)
    Bond & Bond, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The appellant, W. T. Meyers, was convicted on an information charging that in Stephens county, March 17, 1927, he did have in his possession 16 gallons of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced! to pay a fine of $500 and imprisonment in the county jail for six months'. The judgment was rendered May 9, 1927; the appeal by petition in error and case-made was filed in this court June 2, 1927.

The Attorney General on July 19th filed a motion to dismiss the appeal on the ground that since the appeal was taken appellant committed another crime for which a warrant of arrest was issued; that diligent search has been made to find him and arrest him on such warrant by the sheriff of Stephens county; that said sheriff has been unable to find appellant; that he is informed and believes that he has fled to the. state of Texas as shown by the affidavit of E. R. Young, attached, and by copy of warrant of arrest, attached.

No response has been made to the motion to dismiss the appeal.

Under repeated decisions of this court, it is held that where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider the appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case; and where a defendant makes his escape from the custody of the law and becomes a fugitive from justice pending the determination of his appeal, the same will be dismissed. Boswell v. State, 14 Okla. Cr. 336, 170 P. 1175; Christman v. State, 22 Okla. Cr. 67, 209 P. 969; Daley v. State, 23 Okla, Cr. 355, 214 P. 941.

Appellant having failed to controvert the motion to dismiss the appeal, and it being apparent that he has left the jurisdiction of the state of Oklahoma and cannot be made to respond to any affirmative judgment or order which may be rendered in the case, the. appeal herein is dismissed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    C. J. ROBINSON et al. v. STATE.
    No. A-5718.
    Opinion Filed Aug. 18, 1927.
    (258 Pac. 1073.)

      J. F. Thomas, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Comanche county on a charge of violating the state game law and were each sentenced to pay a fine of $200. The prosecution is based on section 6497, Comp. Stat. 1921, and charges that the defendants on a day stated killed a deer contrary to' the statute.

The only assignment of error argued is that the evidence is insufficient to sustain the judgment. The evidence is circumstantial and is, in substance, that on the date charged a shot was heard on the forest reserve, and that two witnesses working on the reserve went to the scene and there met defendants, each of whom had a rifle, and Robinson in addition had a six-shooter. One of the witnesses arrested defendants, and the other followed their tracks about 40 steps from where they were met and from this point followed a track about 75 steps, where a deer had been dragged, and there found the carcass of a deer, still warm, which had been killed by a rifle bullet. One of the men had hair and blood on his clothes, apparently that of a deer. It was about 175 steps from where the witnesses met defendants to where the deer was found, and defendants were about 35 steps from their car when they were met by the witnesses. The defendants did not take the stand and offered no testimony. There is sufficient evidence from which the jury might logically and reasonably arrive at the guilt of defendants. This court will not disturb the judgment for insufficiency of the evidence.

The case is affirmed.

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


text:
    JESSE WILLIAMS v. STATE.
    No. A-5726.
    Opinion Filed Aug. 18, 1927.
    (258 Pac. 1066.)

      J. G. Ralls and Clarence McCasland, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Atoka county, rendered on the verdict of a jury finding appellant, Jesse Williams, guilty of murder and assessing his punishment at imprisonment in the penitentiary for life.

We will consider the assigned grounds of reversal in the order in which they are presented in appellant’s brief.

Upon arraignment, appellant interposed a demurrer to the information on the ground that it does not substantially conform to the requirements of chapter 7, art. 8, C. S. 1921, and that the facts stated do not constitute a public offense.

The information, omitting formal parts, charges:

“That Maggie De Graff, formerly Maggie Sexton, and Jess Williams did in Atoka county, and in the state of Oklahoma, on or about the 17th day of June, in the year of our Lord 1917 and anterior to the presentment hereof, commit the crime of murder in manner and form as follows, to wit:
“The said Maggie De Graff, formerly Maggie Sexton, and jjess Williams, and each of them, acting together, did then and there willfully, wrongfully, unlawfully, feloniously, with malice aforethought, without authority of law, and with a premeditated design to effect death, kill and murder one Willis Sexton, by then and there willfully, wrongfully, unlawfully, and feloniously, without authority of law, with malice aforethought, and with a premeditated design on the part of the said Maggie De Graff, formerly Maggie Sexton, and Jess Williams, and each of them, inflicting mortal wounds upon him, the said Willis Sexton, by shooting the said Willis Sexton with a 32-caliber automatic pistol, which the said Maggie De Graff, formerly Maggie Sexton, and the said Jess Williams then and there had held in their hands, and thereby inflicting certain mortal wounds upon the body of him, the said Willis Sexton, of which said mortal wounds he, the said Willis Sexton, then and there died.”

The following statement of the material facts which we quote from the brief of the state will answer the purpose of our consideration of the appeal.

Willis Sexton, the deceased, was a Choctaw Indian living on a farm near Wesley, Atoka county. In June, 1917, he suddenly disappeared and since that time nothing has ever been heard of him. He was last seen by neighbors in the town of Pittsburg in Pittsburg county, on the 9th day of June, 1917.

The defendant is a cousin of the deceased’s wife, Maggie, since married to a man by the name of De Graff. The defendant w'as making a share crop on the deceased’s land. At the time deceased disappeared his wife, Maggie, was visiting relatives in the state of Arkansas. About a year after her return she brought suit for divorce, obtained the same, and afterwards married De Graff. The defendant lived on the farm with Maggie Sexton until September, 1917, when he was drafted into the army and served as a soldier overseas until the year 1917, when he returned to this country. Afterwards he married and moved to Burkburnett, Tex., at which place he was arrested and was jointly charged with Maggie De Graff, as alleged in the information herein. In September, 1924, the sheriff of Atoka county, together with one of his deputies and the county attorney, went onto the farm of the deceased, near Wesley, and in a grove on a mound about 300 yards southwest of the house in which the deceased had lived dug up the skeleton of a human being. The evidence showed that the deceased had black hair and was about 5 feet 11 inches tall. The skeleton dug up when the bones were placed together measured about 5 feet 10 inches and certain portions of human hair found were of black color. At that time the defendant had been arrested and was being held in jail at Coalgate, and his codefendant was at that time being held in jail at Atoka. After the sheriff had dug up this skeleton, he proceeded to the jail at Coalgate and told the defendant about it. The defendant made a confession orally to the sheriff, the county attorney, and a deputy sheriff, and the next morning the substance of the oral confession was reduced to writing and signed by the defendant.

Against the objections of the defendant, the typewritten confession was offered in evidence and read to the jury. It is as follows:

“Statement of Jessie Williams.
“I, Jessie Williams, make this voluntary statement of my own free will and accord, without fear of punishment or promise of reward.
“I am 30 years of age. I know how, when, and where Will Sexton was killed. The wife of Will Sexton, Maggie Sexton, was not there in the house at Wesley where this occurred at the time, but had purposely arranged to be away.
“It was understood that I would write her when Will Sexton was put out of the way. I did write her and told her everything was O. K., and she thereupon returned in a few days.
“The killing of Will Sexton had been previously arranged by Maggie Sexton and myself. Maggie Sexton, Will Sexton’s wife, had made a previous trip about six months prior to this time. I told Maggie Sexton on the day she returned where the body was. She burned some of the bedclothing that was stained with blood either that evening or the next day.
“I killed Will Sexton at Maggie Sexton’s request. She was the first one to approach me on the subject. I killed him on the morning of the 16th of June, 1917, about daylight. The weapon used was a 32 automatic. This was Will Sexton’s gun that I used. Maggie Sexton left this gun in the strong box at Stringtown, and I found it there when I returned from the army. The gun was later stolen from me at Burkburnett, Tex.
“I shot him twice in the right side of the head, low down.
“I taken this body and deposited it in a grove south and west of the house about 300 yards. I dug a hple and deposited the body in it.
“The next day after she came home she suggested I haul some old rotten hay off of the hay meadow and put it over the place where the body was buried.
“I signed this 19th day of September, 1924.
“Jessie Williams.
“Witnesses:
“W. H. Parker.
“O. P. Ray, Jr.”

It .appears also from the testimony of Mrs. Winnie Woods that the defendant had confessed to her that he had shot and killed Sexton and buried him on the farm; that his statement was that he shot him in the north bedroom of the house while he was asleep, and that he buried the body in a little grove southwest of the house; that at that time she asked him if stains on the floor of the room were blood stains and he said they were, and that he had' removed other stains with hot embers; that this conversation with the defendant was in 1919.

It appears that Mrs. Woods kept secret this confession for a number of years. However, it is evident that it was through her that the skeleton was located.

As a witness in his own behalf, the defendant testified that he did not remember making any confession, that he did remember of the sheriff coming to him and stated that the sheriff held out certain promises to him, but he does not in any place in his testimony indicate that these promises or hope of immunity relied upon were held out to him before he made the statement to the sheriff.

The first assignment of error is the overruling of the demurrer to the information and the motion in arrest of judgment.

In this connection it is contended that the information is insufficient to charge murder, in that it does not allege that any assault was committed by the defendant upon the deceased, nor that the pistol was loaded, nor that a leaden bullet was discharged into the body and head of the deceased.

An information is sufficient which states the offense clearly and distinctly in ordinary and concise language, without repetition, and in such manner to enable a person of common understanding to know what is intended.

It is well settled that it is not necessary that the information should aver that the pistol was loaded with gunpowder and leaden bullets. When the kind of firearm is designated, the manner of using it, the intent with which the act is done, and the person against whom the act is directed are alleged in plain and concise language, the act charged as the offense is sufficiently pleaded. Deen v. State, 7 Okla. Cr. 150, 122 P. 941; Heatley v. Territory, 15 Okla. 72, 78 P. 79.

The information being sufficient, the demurrer thereto and the motion in arrest of judgment were properly overruled.

It is next contended that the trial court erred in permitting the state, over the objections of defendant, to indorse additional names of witnesses on the information on the day the case was called for trial.

In this connection the record discloses that the names of all of these witnesses, with their post office addresses, had been served upon the defendant at least two days prior to the date the case was set for trial.

In the case of Smith v. State, 5 Ojkla. Cr. 282, 114 P. 350, this court held:

“Where the record shows in a capital case that a list of the witnesses to be used upon the trial of said cause by the state was duly served upon the defendant more than two days before the trial began, the defendant cannot be heard to complain if the court permits such names to be indorsed on the indictment at any time during the trial.”

It follows that this assignment is without merit.

It is next contended that the court erred in admitting in evidence alleged confessions of the defendant, because, if made, they were not voluntary.

The record shows that when proof of the written confession was offered, the defendant objected to its admission on the grounds just stated. The court then caused the jury to retire, and the sheriff, deputy sheriff, and the county attorney each testified, in substance, to the effect that the confession as set forth in the statement was voluntarily made. The defendant offered no testimony at this time tending to support the grounds of the objections made.

In this state it is a settled rule of practice that the admissibility of a confession, where objection is interposed, is primarily a question for the court and should be determined preliminary to allowing the confession to go to the jury, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A. (N. S.) 849; Wilson v. State, 17 Okla. Cr. 47, 183 P. 613; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Guthery v. State, 24 Okla. Cr. 183, 216 P. 948; Doublehead v. State, 27 Okla. Cr. 375, 228 P. 170; Hix v. State, 29 Okla. Cr. 20, 232 P. 123.

Considering all the evidence on the grounds of admissibility of the defendant’s confession, the conclusion is reached that the objections thereto were properly overruled.

It is also contended that the court erred in overruling the defendant’s motion for a directed verdict of acquittal in the form of a demurrer to the state’s evidence.

This proposition is based upon the contention that the information alleges that the deceased was shot in the body, while the evidence discloses that he was shot in the head.

The rule has always been and is universal that in charging a homicide it must be alleged that the wound was mortal, and that the wounded person died thereof. But it fs not now deemed necessary to describe the wound, or is it necessary to state that it was of a character likely to produce death.

Wharton says:
“Nor is it necessary to specify the portion of the body upon which the wound was inflicted; the words ‘upon the body’ are a sufficient averment of location. If the wound be stated to be on one part of the body and proved to be on another, the variance is not fatal, though it had been held that the allegation that the wound was infllicted on the body of the deceased is necessary. Nor need the wound which caused death be proved exactly as alleged; it is sufficient if there is a substantial conformity between the allegation and the proof.” Wharton on Homicide, pp. 859, 860, and cases cited.

The motion for a directed verdict was properly overruled.

Finally, it is contended that the trial court erred in refusing to give requested instructions.

The instructions given ¿by the court, to which .no objection was made or exception taken, fairly covered the law in the case, and the defendant’s requested instructions were fully covered by those given by the court.

Upon an examination of the whole case, we find there was no prejudicial error in the admission or exclusion of evidence. The evidence fully warranted the verdict rendered by the jury.

Finding no error in the record prejudicial to the defendant, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JAMES HOURIGAN v. STATE.
    No. A-5855.
    Opinion Filed Aug. 18, 1927.
    (258 Pac. 1057.)
    Morgan, Osmond & Morgan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having the possession of mash fit for distillation, under section 1, c. 42, Session Laws 1924 (Special Session), and he was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The record discloses that at the time charged certain officers had discovered the parts of a still and a quantity of mash concealed in a canyon not far from the town of Carnegie. A few* nights later they lay in wait nearby, and during the night defendant, his uncle, father-in-law, brother-in-law, and others came to the place and proceeded to work on the still to get it ready to operate. The officers thereupon attempted to arrest them, but all fled. In his flight, defendant ran against a tree and was apprehended. Henry Shaw, an uncle of defendant, was also captured and later pleaded guilty. At the trial of defendant, he testified that the still belonged to him, and he had invited defendant there to get some whisky; that defendant had no interest in the mash or still. Defendant testified substantially the same. The state offered in evidence that defendant on the preceding afternoon was in the town of Carnegie with other persons and went with one of them to the scene in a car in which they conveyed a large tank. That after his arrest he stated to the officers that this was the first time he had been engaged in the whisky business and it would be his last; that he was willing to take his time.

Under all the evidence, we think the circumstances proved, with the admission of defendant, were sufficient to warrant the jury in finding him guilty, and that the judgment should not be disturbed for insufficiency of evidence.

The case is affirmed.

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


text:
    JAMES HOURIGAN v. STATE.
    No. A-5856.
    Opinion Filed Aug. 18, 1927.
    (258 Pac. 1057.)

      Morgan, Osmond & Morgan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of setting up, to be used as a distillery, a still worm and substitute therefor, and he was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days.

This is a companion case to case No. A-5855, 38 Okla. Cr. 10, 258 P. 1057, just decided, and the conviction rests on substantially the same evidence as the conviction in that case. Under the provisions of sections 2619 and 2626, Comp. Stat. 1921, in addition to his plea of not guilty defendant also filed a formal plea of former conviction. In support of this latter plea, the information, the verdict of the jury, and the judgment and sentence in the former case w*ere admitted in evidence, and oral testimony was introduced in substance and to the effect that the evidence of the state’s witness in the former case was substantially the same as that-given in the instant case. The court also instructed the jury that defendant had entered a plea of former jeopardy by reason of his conviction in a former case, and that he could not twice be placed in jeopardy for the same offense.

The “same offense” as the term is used in the constitutional guaranty, section 21, art. 2, state Constitution, and the statutes just referred to, does not mean the same offense eo nomine, but means the same criminal act, transaction, or omission. To constitute a good plea on the ground of former jeopardy, the offense in which the plea is made must be the same as that in which jeopardy has attached. But to make the offenses the same, the information need not be in identical language. The offenses may differ in name and yet be the same. First Bishop’s New Criminal Law, par. 1050.

Where the same testimony will support' both charges, it is generally said that the offenses are the same. Estep v. State, 11 Okla. Cr. 103, 143 P. 64. The testimony in the case at bar is practically the same as the testimony given in No. A-5855. It discloses that at the time charged defendant with others had possession of the parts of a still and a quantity of mash. Defendant has been convicted of having possession of mash. The state may not split or divide up an offense into the different parts and punish an accused for each of such parts. Hirshfield v. State, 11 Tex. App. 207.

If an accused in one act and transaction should steal different items of property from different owners, he is guilty of but one crime, or if in one act or transaction he should transport or have possession of whisky, beer, wine, and alcohol, certainly he could not be punished for each separate item, but the possession of all would constitute but one offense. Bishop says:

“We now come to questions inherently difficult, and made more so by contradictory and confused decisions from many of the. courts. In reason, in these cases of offenses included within one another wherein if, as we have seen, a man has been put in jeopardy for the one which includes all the rest he has been so also for each one of the others, it cannot be competent for the government to indict him first for the lowest, then for tbe one next, and so on through all the graduations to the highest. When he has been put in jeopardy for the lowest, then, for example, is prosecuted for the highest, our constitutional guaranty stands in the way of his being convicted a second time for the lowest. For a jeopardy of the highest is equally a jeopardy of the lowest. And since the government confessedly cannot begin with the highest, and then go down step by step bringing him into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest with precisely the same result. Some apparent authority, therefore, English and American, that jeopardy for the less will not bar an indictment for the greater, must be deemed unsound in principle. * * *”

If the state elects through its authorized officers to prosecute an offense in one of its phases or aspects, it cannot afterwards prosecute for the same criminal act, or series of acts under color of another name.

A reversal is also required upon another point. In this case the matter of former jeopardy was submitted to the jury, and defendant requested that the verdict upon this point be furnished the jury. His request was not complied with and no verdict upon the plea of former conviction was returned. It is well settled that where a plea of former conviction is entered with a plea of not guilty, a defendant is entitled to have both pleas passed upon by the jury. Sections 2639 and 2738, Comp. Stat. 1921; Putman v. State, 6 Okla. Cr. 138, 117 P. 460; Bonham v. State, 6 Okla. Cr. 227, 118 P. 159.

Of course, if the pléa of former jeopardy be insufficient as a matter of law or the evidence shall not support it, the court is not required to submit it to the jury and no verdict upon the plea is necessary. Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180; Hamlin v. State, 8 Okla Cr. 187, 126 P. 704; Kent v. State, 8 Okla. Cr. 188, 126 F. 1040; Scribner v. State, 9 Okla. Cr. 465, 132 P. 933, Ann. Cas. 1915B, 381; Dunn v. State, 15 Okla. Cr. 245, 176 P. 86.

The case is reversed and remanded, with instructions to dismiss.

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


text:
    D. E. BROWN v. STATE.
    No. A-5867.
    Opinion Filed Aug. 20, 1927.
    (259 Pac. 154.)
    M. Bristow, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

D. E. Brown was convicted on an information charging that in Caddo county, February 7, 1925, he did unlawfully convey and transport one quart of whisky “from a point on the bank of the Washita river, about three-fourths of a mile southwest of Ft. Cobb, to the automobile of J. B. Rogers, a distance of about 200 feet” and in accordance with the verdict of the jury he was sentenced to pay a fine of $1'00 and to confinement in the county jail for 60 days. To reverse the judgment he appeals, and he assigns as error that the verdict is not sustained by the evidence, and that the court erred in excluding competent and legal evidence on the part of appellant.

Jodie Rogers testified that he stopped at Wray's store in Ft. Cobb and had a conversation there, then he went down to the river in his car something like three-quarters of a mile and found Mr. Brown there in a car and told him that some parties said that he could get whisky there, and Mr. Brown said, “Well, will a quart do?” and witness said a quart would be plenty, and the defendant got out of his car and went about 75 feet and picked up a jar of whisky and witness said, “Bring it over here to my car,” and he said, “All right, I will take it over there;” that he brought the whisky up to the car, and then threw it against the running board and it bounced to the ground; that he arrested the defendant, put handcuffs on him, and started to Anadarko and stopped at Wray’s place, and there gave the whisky to Miss Mary Van Eaton and she kept it; that the defendant complained that the handcuffs were pinching his wrists and asked witness to loosen them.

On cross-examination, he stated, that he had no commission as a deputy sheriff at that time; that when his commission expired Sheriff Nixon told him, “I will keep you until you get a federal commission;” that he did not have a Written commission, but was deputized.

The defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled and exception allowed.

As a witness in his own behalf, D. E. Brown testified that he went to the river to get wood and bought the whisky and took a drink of it and placed it by a tree; that Jodie Rogers drove up and said, “What about buying some whisky?” and ,he said, “I guess you are mistaken in the man; I am not a whisky peddler.” Rogers said: “A fellow up town told me I could get it down here.” He said: “The fellow w'as mistaken; there were some boys here that left this morning.” Rogers said: “Did you get some?” He said “Yes.” Rogers says: “I am a good old farmer up here, and if I cannot buy some whisky, just give me a drink;” and he said: “Some whisky is lying under that tree; I am not selling it, but you are welcome to a drink if you want it.” That Rogers picked up the whisky, tasted it, and walked back and turned his gun on him, then put a pair of handcuffs on him.

Miss Mary Van Eaton testified that she remembered Jodie Rogers and Mr. Brown coming into Wray’s place, and Mr. Rogers brought a jar to her and asked her to watch it. Mr. Brown said, “That was the hardest jar to break I ever saw in my life;” that he threw it as hard as he could against the running board of the car and it bounced right off.

The defendant, recalled, testified:

“I might have said something, that I should have broken it;'I don’t remember of having said anything.”
He was then asked:
“Explain to the jury the best you can any conversation you had there at that time.
“The Court: Objection sustained; exception allowed.
“Q. Did you try to break that bottle down there?
“Objection sustained; exception allowed.
“Q. Explain to the jury the best you can, any conversation you had there at that time.
“Objection sustained; exception allowed.
“Here the defendant offers to prove by this witness that in this conversation he may have said something about breaking the bottle, or was foolish in not breaking the bottle.
“Objection sustained.
“Q. If you had such a conversation at that time did it refer to the breaking of this bottle at all?
“Objection sustained; exception allowed.”

A brief reference to a few facts of the case is all that is necessary to show the materiality of the evidence offered on the part of the defendant and rejected by the court. The prosecuting witness testified that he asked the defendant to bring the bottle to his car. Thus it appears he was an accomplice, and, under the statute (section 2701, C. S. 1921), unless corroborated by other evidence tending to connect the defendant with the commission of the offense, a verdict of guilty would be contrary to law and the evidence. Without any foundation for impeachment being laid, the witness Miss Van Eaton testified to a statement made by the defendant, as tending to corroborate the testimony of the prosecuting witness. It follows that he had the right to explain what was said and questions asked were proper.

Where material evidence has been offered on the part of the defendant and erroneously rejected by the court, we are not at liberty to say that the error is merely technical or ftiat the substantial rights of the defendant have not been prejudiced.

Upon the record before us, we are satisfied that the defendant did not have such a fair and impartial trial as he was entitled to under the law.

The judgment of conviction is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WALTER BAKER v. STATE.
    No. A-5865.
    Opinion Filed Aug. 20, 1927.
    (259 Pac. 158.)
    Disney & Wheeler, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant, Walter Baker, was tried and convicted on an information charging that in Tulsa county, February 2, 1924, he did have in his possession one quart of whisky with the unlawful intent to sell the same. The jury failed to agree upon the punishment.

Motion for new trial was duly filed and denied. Thereupon the court sentenced him to pay a fine of $150 and to be confined in jail for 60 days. To reverse the judgment he appeals and assigns 14 errors.

R. D. Sanford, sheriff, tetstified that with deputies Mayfield and Larkin and two army officers he visited defendant’s home and in executing a search warrant.found in one of the'living rooms a milk bottle about two-thirds full of Whisky; that the other officers found a big copper still in the cellar; that he could not find the search warrant; that there was no record of the affidavit, search warrant or return thereon.

Over the defendant’s objections, he was asked if he knew the general reputation of the defendant’s residence as to whether or not it was a place where intoxicating liquors were kept, sold, and stored, and he answered, “Yes,” and that reputation was bad.

Earl Logan, clerk of the court of common pleas, testified that on or about that date a search warrant issued out of the common pleas court to search the premises of Walter Baker, and that the same was lost in the district court in a civil proceeding.

Defendant moved to strike the testimony as incompetent and not the best evidence, which was overruled.

The testimony of the witnesses Mayfield and Larkin was substantially that given by the sheriff.

At the close of the state’s evidence there was a motion to strike and a motion for a directed verdict of acquittal, which motions were overruled.

As a witness in his own behalf, the defendant testified that he built his home in 1923, and with his wife lived there about a month, then rented the place to Mr. Renfro; that the lease was made in Judge Warren’s office, and he received at that time $125 on the rent; that they reserved one room to keep their clothes in; that he had been visiting his folks at Bixby and Muskogee and with his wife returned the day before the officers raided the place; that he knew nothing about what the officers found in the basement, that his wife was sick at the time, and Dr. Flannagan, her physician, was there when the officers appeared.

The testimony of Mrs. Baker, wife of the defendant, was substantially the same as that given by her husband.

Judge Shaffer, partner of Judge Warren, identified the lease as having been executed in their office.

In a prosecution for unlawful possession of intoxicating liquors, evidence of general reputation of the defendant’s home as a place where intoxicating liquors are kept for sale is incompetent to prove the charge. Thompson v. State, 9 Okla. Cr. 525, 132 P. 695; Severns v. State, 31 Okla. Cr. 281, 238 P. 217.

The evidence here complained of therefore was inadmissible and obviously prejudicial. Possession of less than one quart of whisky in a person’s home is not presumptive evidence of an intention to violate provisions of the prohibitory liquor law, and for this reason we believe the evidence was insufficient to sustain the conviction.

We deem it unnecessary to consider other errors assigned, which are apparently well founded.

For the reason stated, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    MANSON HAGGART et al. v. STATE.
    No. A-5828.
    Opinion Filed Aug. 20, 1927.
    (259 Pac. 166.)

      E. C. Patton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county of transporting whisky and each sentenced to pay a fine of $500 and to serve 6 months in the county jail.

The record discloses that these defendants with one Olin Valentine transported whisky from Dewey county to Canadian county. When they arrived at El Reno, they ran the car upon the curb near the jail and an officer approached and discovered they were partially intoxicated and half a gallon of whisky was found in the car. All pleaded guilty and were sentenced to the extreme punishment. These defendants thereupon filed an application to withdraw the plea of guilty, which was granted. Both are under the age of 21 years, and the evidence is that they have not before been convicted of any offense. No prejudicial error is apparent, but it is earnestly argued that the punishment assessed is excessive. The punishment for the first offense, under the circumstances shown, is excessive, and is modified by being reduced to a fine of $100 and confinement in thé county jail for a period of 60 days as to each defendant, and, as modified, the case is affirmed.

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


text:
    HARRISON MOODY v. STATE.
    No. A-5889.
    Opinion Filed Aug. 20, 1927.
    (259 Pac. 159.)
    M. D. Hartsell, Glenn Alcorn, and W. P. Miller, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

The record discloses a state of facts about as follows : The defendant is a colored man who lived in the town of Haskell. On the date charged he shot and killed Bill Guillory, also a colored man. At the time of the homicide, defendant and deceased were but slightly acquainted. They had a short time before this had an altercation in a restaurant, deceased at the time being intoxicated and had made some threats because defendant would not buy him a drink of whisky. On the day of the homicide, deceased was intoxicated; he approached defendant, who was seated on the sidewalk, and threatened him. Defendant conducted himself with restraint and went into a colored barber shop. Deceased then went to a restaurant, had some altercation with the proprietor, and after being induced to leave there went to the colored barber shop where defendant w'as. Deceased apparently did not observe defendant at the time but got in a barber chair to have some work done, but learning that defendant was in the shop began to curse and threaten him. After considerable colloquy defendant left the shop, was gone some 15 or 20 minutes, and returned. Deceased was in the chair with a cloth around his neck, getting a haircut. On the return of defendant, deceased said, “You son of a bitch, I told you to stay out of here,” and started toward defendant, who drew a revolver and pointed it at deceased. Another barber said to defendant, “Don’t do that, Moody.” Defendant then lowered his gun and deceased said, “No; you pulled that gun and you have got to use it;” and he continued to advance; defendant then fired (three shots into the body of deceased, from which he died instantly. Deceased was unarmed. Defendant testified that owing to the previous threats of deceased he believed he was armed and the shooting was done in his necessary self-defense.

The information charges manslaughter in the first degree, and its sufficiency to charge this degree of manslaughter is challenged. Counsel for defendant earnestly insist that an information based on subdivision 2 of section 1740, Comp. Stat. 1921, which fails to charge that the homicide was perpetrated in a heat of passion, is insufficient to charge first degree manslaughter.

The charging part of the information is:

“* * * That Harrison Moody * * * did knowingly, willfully, unlawfully, wrongfully, and feloniously make an assault, without justifiable or excusable cause, upon one Bill Guillory, with a certain dangerous and deadly weapon, to wit, a revolver, then and there loaded with powder and bullets, and then and there had and held in the hands of him, the said Harrison Moody, and did then and there feloniously, without justifiable or excusable cause, shoot the said Bill Guillory, then and there inflicting certain mortal wounds upon the said Bill Guillory, of which mortal wounds, the said Bill Guillory did * * * di0 ^ ^

Section 1740, Comp. Stat. 1921, reads:

“Homicide is manslaughter in the first degree in the following cases:
“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

The case of Barker v. Ty., 15 Okla. 22, 78 P. '81, sustains defendant’s contention. Our attention has not been called to any subsequent decision by this court upon this point and we know of none, nor has a decision of any other state under a similar statute been cited. In the Barker Case, Burwell, J., speaking for the court, said:

“It is not contended that the first or third subdivisions of this section have any application to this case, but that the indictment must be upheld, if at all, under the second subdivision. Therefore, we will confine our views to it. This statute has been in force in the territory ever since 1890, and the trial courts have repeatedly held that if the killing was effected by means of a dangerous weapon, it would be manslaughter, although not done in a heat of passion; but we are of the opinion that the clause, ‘and in a heat of passion’ modifies not only the language, ‘but in a cruel and unusual manner,’ but also the words, ‘or by means of a dangerous weapon.’ To state it differently, homicide is manslaughter in the first degree when perpetrated without a design to effect death, but in a heat of passion, and in a cruel and unusual manner, or when committed without a design to effect death, but in a heat of passion and by means of a dangerous weapon. In other Words, homicide is not necessarily manslaughter in the first degree, simply because death is produced by means of a dangerous weapon.”

If the Barker Case be followed, this case must be reversed for insufficiency of the information, and, while that case is persuasive and we are reluctant to give a different construction to this section of the statute, we feel constrained to do so. The better grammatical construction and the more common sense interpretation is found in the view that where an information charges a homicide without a design to effect death by means of a dangerous weapon, although not alleging it to have been done in a heat of passion, it is a charge of manslaughter in the first degree. That is, the conjunction “and” and “or” connect two co-ordinate clauses, and the first part of the third subdivision means, “Homicide is manslaughter in the first degree when perpetrated without a design to effect death and in a heat of passion but in a cruel and unusual manner,” and the second part means, “Homicide is manslaughter in the first degree * * * when perpetrated without a design to effect death by means of a dangerous weapon. * * *” This is what the information alleges, and, adopting this construction of the statute, it sufficiently charges manslaughter in the first degree.

It is next contended that the court erred in admitting evidence on the part of the state as to the general reputation of defendant. This question was opened by defendant-offering testimony that prior to the homicide he bore a good reputation as a peaceful and quiet citizen so far as being quarrelsome was concerned. In developing this matter it was disclosed that defendant had been charged with violating the prohibitory liquor laws. Upon cross-examination it was shown by these witnesses that defendant had the reputation of being a bootlegger. Where a defendant offers testimony of his good reputation, the question is then open and the state may in rebuttal attack the reputation and character of the accused. It is generally held, however, that the evidence of reputation should be limited to the traits involved. The rule is laid down in, 3 Underhill, § 137, p. 174, as follows:

“Whenever the accused shall introduce evidence of good character, rebutting evidence to show his bad character, but only as regarding the trait involved in the crime charged against him, is always admissible.”

See Montgomery v. State, 11 Okla. Cr. 415, 142 P. 1048, 147 P. 1054; Worley v. State, 32 Okla. Cr. 1, 239 P. 683.

Except for the fact that the question was opened by the defense and it was shown that defendant had the reputation of violating the prohibitory law, the action of the county attorney w'ould probably be prejudicial error, but where, as here, the evidence in the first instance disclosed the reputation of defendant as having violated the liquor lav/, the fact that the state further inquired about this matter will be unavailing, particularly where as in this case the minimum punishment for the offense charged is assessed.

The argument is also pressed that the county attorney was guilty of prejudicial conduct in the course of the trial and in his argument. This assignment is directed to several (different matters, among them the questioning of the defendant as to his having been convicted for a violation of the prohibitory law. The record discloses that this matter was unnecessarily pursued by the state. It is also' directed to the argument that after defendant left the barber shop he went to a tailor shop and procured a pistol and returned, when the shooting took place, as being a statement of facts outside the record. This contention cannot be sustained. It is plain that the statement was not made as of a fact in evidence but as a deduction from the evidence. As such, the deduction is reasonable and logical. It is further argued upon this point that there was misconduct in reference by the county attorney to the absence of one Burke, and in stating that the state had looked in vain for the witness. Burke conducted the tailor shop where defendant went after leaving the barber shop, and from whence he returned just before the homicide. It was the theory of the state apparently that defendant procured the pistol with which the killing was done at the tailor shop. Defendant was asked about this on cross-examination. The inference sought to be conveyed is that the'evidence of Burke, if he were obtained, would be unfavorable. The error does not require a reversal.

There are errors in the record, but it must have been manifest to the jury that defendant, provoked by abusive language on the part of deceased, left the barber shop, procured a pistol, and returned having in mind that if the quarrel should be renewed by deceased to shoot him, and that deceased in a drunken and practically irresponsible condition did renew the quarrel and was shot and killed. There is no miscarriage of justice, and no reason for a reversal is apparent.

The case is affirmed.

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


text:
    CHARLEY PORTLOCK v. STATE.

      No. A-5903.
    Opinion, Filed Aug. 20, 1927.
    (258 Pac. 1070.)

      Anglin & Stevenson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

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

The information charges defendant with unlawfully transporting whisky. Only one witness, Birt Hodges, a deputy sheriff, testified. The substance of his testimony is that he saw defendant come out of an alley on Main street and go to Hamp Dennis’ store¡. That he followed him and caught up with him in the store building where he was with Mr. Parker. That he found between a half pint and six ounces of whisky on his person. He had no search warrant nor warrant for arrest and did not see the defendant in the commission of any offense. His testimony is as follows:

“Q. Did you search the defendant? A. Yes, sir.
“Q. You found some whisky on his person? A. Yes, sir.
“Q. Did you have a warrant for his arrest? A. No, sir.
“Q. Did you have a search warrant? A. No. sir.
“Q. You took the whisky out of his shirt bosom? A. Yes, sir.
“Q. You didn’t know he had it? A. I don’t understand.
“Q. You didn’t know he had the whisky. A. No, sir. * %

It is a violation of the provisions of the Bill of Rights of the state Constitution against unreasonable searches for an officer without a search warrant, or a warrant of arrest, or without having made an arrest for an offense committed or attempted in his presence, to search the person of a citizen on mere suspicion. The evidence here discloses a flagrant violation of this constitutional guaranty. Evidence obtained in this manner is not competent and a conviction based on it cannot be sustained.

The case is reversed and remanded, with instructions to dismiss].

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


text:
    W. H. STOUT v. STATE.
    No. A-6566
    Opinion Filed Aug. 20, 1927.
    (258 Pac. 1054.)
    A. M. Stewart, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The appellant was tried upon an information charging that in Jackson county, August 19, 1926, he did shoot at and attempted to shoot one J. W. Reynolds, with intent to kill. The trial resulted in a verdict fiñding him guilty of assault with a dangerous weapon with intent to do bodily harm, and fixing his punishment at confinement in the county jail for 90 days. From the judgment rendered in accordance with the verdict an appeal was duly perfected.

While his appeal was pending and awaiting decision before this court, the Attorney General filed a motion to dismiss for the reason that on the application of appellant a full and unconditional pardon was granted by H,on. Henry S’. Johnston, Governor, on August 2, 1927. The uniform holding of this court is that, when a pardon is granted by the Governor and accepted by the appellant, and this fact is called to the attention of the court pending the determination of the appeal, the appeal will be dismissed.

It follows that the motion to dismiss the appeal will be sustained. It is therefore considered, ordered, and adjudged that the appeal herein be dismissed, and the cause remanded to the district court of Jackson county.

EDWARDS and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    Ex parte ALONZO RAYMER.
    No. A-5847.
    Opinion Filed Aug. 22, 1927.
    (258 Pac. 1063.)

      Troy W. Griffin, for petitioner.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for. whit of habeas corpus, filed in this court October 13, 1925, and the return thereto shows that on the 8th day of February, 1925, Alonzo Raymer, a minor under the age of 16 years, was arraigned in the district court of Grady county on an information charging burglary and without the benefit of counsel waived time within which to plead and entered his plea of guilty, and was thereupon sentenced to be imprisoned in the state reformatory at Granite for a term of two years, and was on the 10th day of February delivered to said warden.

It is averred in the petition that his said imprisonment is unlawful for the reason that the district court of Grady county had no jurisdiction at the time judgment was pronounced and said sentence imposed, in that no preliminary complaint against him was ever filed in the county court of Grady county, and that no investigation was ever had before said court or the judge thereof sitting as a juvenile court concerning the charge against him before filing said information in the district court of said county.

It is further averred that Alonzo Raymer was born on the 7th day of March, 1909, near Baley, Okla., and was at the time of said judgment of the age 15 years. Upon the hearing, the evidence was undisputed that said minor was under the age of 16 years.

At the conclusion of the hearing on October 23,1925, the writ was awarded and the petitioner discharged upon the authority of Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624, wherein it was held that, under the statute (chapter 70, art. 4, 'Comp. Stats. 1921) relating to juvenile courts and their jurisdiction and control over delinquent children, a child under 16 years of age cannot be guilty of the commission of a crime except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of his acts at the time they were committed and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony, and, further, that the law contemplates an investigation by the juvenile court of complaints against children under 16 years of age, with the view of determining whether or not the child committed the acts charged, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense, and, if upon such investigation the juvenile court finds aifirmatively, it is then within its discretion to hold said child to be proceeded with, in the manner provided by law, in the court having competent jurisdiction of the offense, certifying to such court both findings as to probable cause and that the child knew the wrongfulness of the acts complained of.

The precise question, here presented was also passed upon by this court in. Ex parte Bonitz, 30 Okla. Cr. 45, 234 P. 780.


text:
    W. C. MALOON v. STATE.
    No. A-5890.
    Opinion Filed Aug. 23, 1927.
    (259 Pac. 173.)
    W. N. Redwine and Geo. Hill, for plaintiff in error.'

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, W. C. Maloon, was tried upon an information charging him with the crime of murder, alleged to have been committed in Pittsburg county, October 1*8, 1924, by shooting one Pete Lout with a pistol. The trial resulted in a conviction of manslaughter in the first degree, the jury were unable to agree upon the punishment. Motion for new trial was duly filed and overruled, and on the 12th day of June, 1925, the court pronounced judgment and sentenced him to imprisonment in the penitentiary for a term of 40 years.

The evidence shows that the deceased, Pete Lout, and the defendant were both coal miners and lived at a little place in the eastern part of Pittsburg county called Manning. They were both members of the miners’ union and at the time of this killing the defendant was a member of a committee appointed by the local union at Adamson to distribute aid to union miners and their families in the district where such miners were at that time unemployed. It appears that there was no strike on at that time, but many of the mines had closed down, and for that reason many of the miners and their families were in destitute circumstances. The supplies distributed consisted mostly of groceries.

The deceased had been a member of this committee and had assisted the defendant in the distribution of these supplies, which were being kept at the home of the defendant as a matter of convenience, both for the committee and the miners themselves. On the day in question the deceased and his brother Alex visited at the home of the defendant for the purpose of procuring some supplies for Alex Lout and his family. That the deceased went for the purpose of returning a bucket of syrup to the committee which he had previously bought from Maloon. It seems that whatever trouble occurred leading up to the killing was occasioned by the defendant checking off against the deceased with his employee a charge of 80 cents for this bucket of syrup.

The testimony of Alex Lout, brother of the deceased, and 'John Tenny, brother-in-law of the deceased, an<$ numerous other witnesses for the state was, in substance, to the effect that when the deceased and his brother approached the defendant’s home he was sitting at a table on the porch; that the deceased placed the bucket of syrup on the porch and said, “Bill, what did you turn that 80 cents in against me for?” The defendant said, “What else could I do? you didn’t pay me like you promised;” and the deceased said, “You ought to give me a little more time on it; I think it was a damn dirty trick in you, and it will never do you a damn bit of good;” that the defendant ran into the house and right back out of the door and shot the deceased twice; one bullet entered below the left shoulder blade and the other near the left hip.

The evidence on the part of appellant was to the effect that deceased had threatened to do him bodily injury; that these threats had been communicated; and that the deceased was a man of violent and dangerous disposition.

As a witness in his own behalf defendant testified that his age was 42 years, a married man, coal mineh by occupation. As chairman of the committee was distributing supplies to the destitute families of miners; that the deceased had aided in the work by acting on the committee until about two or three weeks before the homicide; that the deceased was working and purchased a bucket of syrup and promised to’ pay for it on following Saturday night, the price was 80 cents, and other members of the committee were there and consented to the sale to accommodate the deceased; that he had distributed aid to Alex Lout’s children that day; and that shortly after Alex Lout and his brother, the deceased, came to his place. The deceased threw the bucket of syrup down át his feet and said, “Why did you turn that 80 cents in against me?” and he said, “Pete, what else could I do ? you didn’t pay like you agreed to; you passed the first, the second and third Saturday, and how could I keep my books anything like straight?” and he said, “You damn dirty son of a bitch, it will never do you any good; I will cut your head off;” and he had a knife in his hand; that his gun was hanging on the inside of the door, and he got his gun and said, “Pete, you get aWay from my place; if I have done you any wrong we will take our trouble to the local union;” and he said, “You damn dirty son of a bitch, I will settle with you now;” and at that I fired my gun twice. That he believed his life was in imminent danger when he fired the shots; that he knew deceased to be a quarrelsome and dangerous man; that he knew two instances where he had assaulted another person with a knife.

The errors assigned are that the court erred in its rulings in rejecting competent evidence to which exceptions were duly saved, and that the pufiishment assessed is excessive, and asking that the judgment be either reversed or modified.

An examination of the record discloses that only in one instance did counsel for the defendant make any offer of what was expected to be proved, had the witnesses been permitted to answer. The practice is well settled that such an offer is absolutely necessary to present the question for review. White v. State, 4 Okla. Cr. 160, 111 P. 1017; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121.

A witness for the defendant was asked if he heard the defendant make any statement in a meeting of the local as to the settlement of disputes about the aid. The state’s objection was sustained, and counsel for the defendant stated:

“Defendant expects to prove by this witness that at a meeting of the local, at Manning, the defendant in the presence of the deceased and other members of the local made the statement that, if there was any complaint or grievances about the disposition of the aid, such complaint or grievance should be made at the meeting of the local and not at the home of this defendant.
“The Court: Objections sustained.”

We are inclined to think that the court erred in sustaining the objection made. However, it appears that it is shown by the testimony of other witnesses that this statement was made.

It is well settled that an error in the rejection of evidence is not ground for reversal, unless after an examination of the entire record it appears to this court that the same probably resulted in a miscarriage of justice or deprived the defendant of a substantial right. Littleton v. State, 19 Okla. Cr. 461, 200 P. 716.

It was the exclusive province of the jury to pass upon the credibility of the witnesses, and under the settled rules of the court we cannot disturb the verdict of the jury where there is substantia] evidence to support it.

There was no objection made to the instructions given. They fully covered the laws applicable to the facts in evidence in the case.

Finally, it is insisted that the punishment imposed by the court is excessive and should be modified. Counsel in their brief say that:

“In the event the court comes to the conclusion that the case should not be reversed, then the defendant most respectfully submits that the sentence given to defendant by the court, to wit, 40 years in the penitentiary, was not warranted under the evidence and the verdict of the jury. The case was submitted to the jury about 7 o’clock in the afternoon, and about 1 hour thereafter the jury returned their verdict of manslaughter in the first degree; that the jury in their deliberation stood from 5 to 20 years as a sentence, and that the jury would have agreed on a verdict and sentence not exceeding 20 years if they had continued their deliberations, but on account of the trial judge’s father having died during the trial of the case at his home in Illinois, the jury were anxious to get through so the trial judge could leave on the north-bound train at 9 o’clock that night; that this explains for the short consideration of the jury. That a 40-year sentence would mean a life sentence, and the jury did not intend that said defendant should have a life sentence.”

Upon a careful examination of the record we are inclined to think that the punishment imposed is excessive. It is both the spirit and the intention of our laws that punishment for crime shall be imposed for the protection of society and reformation of the criminal.

Under authority conferred upon this court by section 2820, C. S. 1921, we deem it our duty to modify the judgment to imprisonment in the penitentiary for a term of 20 years instead of 40 years.

The judgment and sentence of the trial court is hereby modified to the extent of reducing it to a term of 20 years’ imprisonment in the state penitentiary. As so modified, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    SAM DAVIS v. STATE.
    No. A-5935.
    Opinion Filed Aug. 24, 1927.
    (259 Pac. 172.)

      E. E. Ammons, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Sam Davis was convicted, his punishment fixed at a fine of $50 and confinement in jail for 30 days, and he appeals.

One of the errors assigned is that the verdict is not sustained by the evidence.

It appears that defendant, Davis, and Raymond Redding were at Lenna P. O., and on their way to defendant’s home stopped a quarter of a mile west of Lenna, and in the brush Davis picked up a bottle and gave it to Redding, who took a drink.

H. F. Smith, deputy sheriff, testified that he saw Sam Davis at Lenna and with L. E. Norton waited in the brush about a hundred yards east of Mr. Norton’s barn; that defendant, Davis, and Redding came by and. left the road, and stopped about 30 yards from the road, and defendant picked up a bottle of whisky, carried it about 40 or 50 feet, and gave it to Redding, who took a drink and passed it back, then he rushed up and took the bottle from defendant; that it had about a spoonful of whisky in it; that he arrested defendant and took him to Eufaula and put him in jail; that on the way defendant offered him $25 to take him back home and not put him in jail.

On cross-examination, he stated that he went there to catch the defendant on his way home; that in his first complaint he stated that defendant had carried the whisky 100 yards; that he refused to let defendant get a banjo that he had laid down before he went to the brush.

Raymond Redding testified that Sam Davis told him he would give him a drink of whisky, and they left the road and went to the edge of the brush, and that Davis picked up a bottle which contained about a half pint of whisky and handed it to him, and he took a drink of it; that Officer Smith stepped up and arrested Mr. Davis; that the defendant took just one step in handing the whisky to him.

L. E. Norton, the third and last witness for the state, testified that he was with H. F. Smith northeast of his barn, and he saw defendant, Davis, and Rédding walk up to the edge of the thicket, and defendant, Davis, picked up a bottle and handed it to Redding; that he could not tell the exact distance between the two when defendant picked up the bottle, but it might have been 2, 3 or 4 steps.

The state rested and the defendant moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled.

The testimony of the defendant was that morning about 10 o’clock Jeff Ward had a bottle there and gave him a drink, and then in the evening on his way back home he left the road there to see if there was any whisky left in the bottle; that Raymond Redding was with him; that he picked up the bottle and handed it to Red-ding, who took the bottle and tasted it, and about that time Officer Smith came running out of the brush and arrested him.

The court refused to give the following requested instruction:

“If you find from the evidence, beyond a reasonable doubt, that the defendant did transport the intoxicating liquor in question some distance from one place in McIntosh county to another place in McIntosh county, as charged in the information, you will convict him. On the other hand, if upon a consideration of the evidence you entertain a reasonable doubt as to whether the defendant did, as charged in the information, transport the intoxicating liquor in question any distance whatever, you will acquit him.”

It will be observed that two or three of the witnesses for the state testified, in effect, that there was no conveyance. They were disinterested witnesses.

In Wilder v. State, 34 Okla. Cr. 291, 246 P. 660, it is said:

“The gist of the offense charged is the conveyance from one place to another ‘place.’ The word ‘place’ has a variable meaning. As used in the statute it means region or locality.”

In Proctor v. State, 8 Okla. Cr. 537, 129 P. 77, it is said:

“On the essential ingredient of the offense charged, * * * there must be a conveyance from a place beyond the premises of the defendant.”

In De Graff v. State, 2 Okla. Cr. 519, 103 P. 538, it is held that the removal of intoxicating liquor from one room in the house to another room in the same house is not an offense within the meaning of the law.

On the facts as shown by the testimony of two witnesses for the state, we are of the opinion that the court erred in overruling the defendant’s motion for a directed verdict, and that the court also erred in refusing to give the instruction requested.

Because the evidence is insufficient to show a conveyance from place to place, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    RILEY STEVENS v. STATE.
    No. A-5944.
    Opinion Filed Aug. 24, 1927.
    (258 Pac. 1074.)
    Hugh M. Bland, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Riley Stevens, was convicted in the county court of Adair county on an information charging that in said county, April 26, 1925, he did sell intoxicating liquor to Jim Miller, and in accordance with the verdict of the jury he was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days. From the judgment rendered in pursuance of the verdict, he appeals.

An examination of the record discloses that the information is sufficient; that the evidence for the state, which is undisputed, fully supports the allegations of the information.

We find the charge of the court fairly presented the law of the case. No error being apparent, the judgment appealed from is affirmed.

EDWARDS and DAyENPORT, JJ., concur.


text:
    WALTER HENDERSON v. STATE.
    No. A-5936.
    Opinion Filed Aug. 24, 1927.
    (258 Pac. 1073.)
    H. S. Hines, for plaintiff in error.
    Edwin D'abney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Walter Henderson, was convicted on a charge that in Kay county, July 15, 1925, he did unlawfully have in his possession one whisky still, capable of being used to manufacture intoxicating liquor, and in accordance with the verdict of the jury he was sentenced to pay a fine of $100 and to be confined in jail for 90 days. The judgment was rendered Septem* ber 1'8, 1925. An appeal by case-made was filed in this court December 2, 1925.

No brief has been filed, and no appearance made in behalf of appellant, when the case was called for final submission. It was thereupon submitted on the motion of the Attorney General that the same .be affirmed for w'ant of prosecution. The proof on the part of the state, which was undisputed, tended to show that the sheriff and several deputies of Kay county found a still a half mile east of Hardy, and appellant was there at the time.

An examination of the record shows there are no errors which would authorize a reversal of the judgment, the motion of the Attorney General to affirm is sustained, and the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    In re CAL GOWER.
    No. A-6617.
    Opinion Filed Aug. 25, 1927.
    (258 Pac. 1118.)
    I. L. Cook and J. G. Ralls, for petitioner.
   PER CURIAM.

The petitioner, Cal Gower, filed in this court a verified petition, wherein he alleges that he is unlawfully imprisoned in the county jail of Atoka county, by the sheriff of said county, having been committed after a preliminary examination to answer the district court on a charge of murder, and further alleging that he is not guilty of murder, and that the proof of his guilt is not evident, nor the presumption thereof great. Since the filing of the petition, his counsel of record has moved the court to dismiss the cause. In conformity to said motion, the cause is dismissed.