text:
    S. O. HARRIS v. STATE.
    No. A-9873.
    Feb. 11, 1942.
    (122 P. 2d 401.)

      Clarence Tankersley, of Shawnee, for plaintiff in error.
    Mathers & Mathers, of Oklahoma, City, amicus curiae on behalf of plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

S. O. Harris was charged in the district court of Pottawatomie county by information, in two counts, with the unlawful importation of intoxicating liquor, a jury was waived, the defendant was convicted, and sentenced to serve three months in the county jail and pay a fine of $250 and costs of prosecution on each count, and has appealed to this court.

This case was tried upon a stipulation as to the facts, and the only contention presented by counsel for defendant in this court is that the court erred in not sustaining his demurrer to the information, for the reason that the act upon which the information herein was based is unconstitutional.

It is contended that chapter 16, Session Laws 1939, 37 O.S. 1941 §§ 41, 42, 43, 44, 45, 46, 47, 48, is unconstitutional for the following reasons:

1. . Because said statute does not grant equal protection of the law to all citizens, for the reason that it makes the importation of liquor into' Oklahoma a felony, whereas the general laws make the transportation of liquor only a misdemeanor.

2. It is contended that said act violates an alleged! constitutional right of the defendant to import liquor for his personal use.

3. It is contended that said act is violative of the provisions of the constitution relating to' intoxicating liquors, in that the Legislature attempts to authorize the importation of intoxicating liquor, other than as specifically authorized by the constitution.

These questions, and others of similar import, have been before the United States District Courts of Oklahoma and Arkansas and the Circuit Courts of Appeal of the Eighth and Tenth Circuits. In all of these casesi the federal courts have uniformly sustained the constitutionality of this legislative act. Hayes v. United States, 10 Cir., 112 F. 2d 417; Hinkle v. United States, 8 Cir., 115 F. 2d 217; Hastings v. United States, 8 Cir., 115 F. 2d 216; Reynolds v. United States, 8 Cir., 115 F. 2d 216; Epps v. United States, 10 Cir., 112 F. 2d 931.

The act herein involved (chapter 16, Session Laws of Oklahoma, 1939, generally known as the Liquor Permit Law) was passed by the Oklahoma Legislature in' 1939 in order to secure the protection of the federal government in the state’s effort to prevent the importation or transportation of liquor into1 Oklahoma, a dry state.

Prior to the passage of the 1939 act, it had been held that the federal liquor enforcement act, 27 U.S.C.A. §' 221 et seq., is inapplicable to Oklahoma, for the reason that the act makes importation or transportation of liquor into a dry state a federal offense only when such state prohibits all such importation or transportation by its laws or requires permits or licenses to accompany liquor lawfully imported. Dunn v. United States, 10 Cir., 98 F.2d 119, 117 A.L.R. 1302.

Since this prosecution was instituted in the district court of Pottawatomie county, the federal decisions above named have been promulgated. In the case of Hayes v. United States, supra, in an áble opinion by Judge Phillips, the contentions herein urged by counsel are fully discussed. Said opinion cites as authority many decisions of this court in disposing of the constitutional questions there involved.

In this case the following propositions of law are stated, as shown by the syllabus in the Federal Reporter:

“Section of Oklahoma statute prohibiting the importation of liquor without a permit was embraced in title of the statute which recited that it was a statute creating and providing for permit system for importation and transportation of intoxicating’ liquor containing, more than 4 per cent, of alcohol by volume, into' the state for scientific, sacramental, medicinal, or mechanical purposes, and forbidding importation of 'such liquor’ without permit, the quoted words referring to intoxicating liquor, regardless of purpose for which it was1 imported.”
“The purpose of the Oklahoma statute relating to' importation of intoxicating liquor was to provide for importation under permit system for certain limited and specified purposes only, and a provision prohibiting importation without permit for all purposes was essential to make the act effective and was referable and cognate to the subject expressed in the title which recited that the act created and provided for permit system for importation and transportation of liquor into1 the state for scientific, sacramental, medicinal, or mechanical purposes, and forbade importation of such liquor without a permit.”
“The fixing of penalties for crime is a legislative function, and what constitutes an adequate penalty is a matter of legislative judgment and discretion, and courts will not interfere therewith unless penalty prescribed is clearly and manifestly cruel and unusual.”
“The Oklahoma statute forbidding importation of intoxicating liquor into the state without a permit, which provides punishment by fine of not less than $50 nor more than $2,000 and by imprisonment for not less than 30 days in county jail, nor more than five years in state penitentiary, is not unconstitutional on ground that statute imposes cruel or unusual punishment.’ ”
“The equal protection clause of Federal Constitution does not prohibit legislative classification, but such a classification must be reasonable, and not arbitrary, and must be based upon a difference having a fair and substantial relation to the object of legislation.”
“If any state of facts reasonably can be conceived that would sustain a legislative classification, a presumption exists that the state of facts exists, and one who assails the classification must show that the action is arbi-rary.”
“Parties who attacked constitutionality of Oklahoma statute relating to importation of intoxicating liquor failed to sustain burden of proving unreasonableness of legislative classification which resulted in more severe penalty for importing liquor than for transporting liquor within the state.”
“The Oklahoma statute imposing penalty for importing and transporting intoxicating liquor into the state, which is more severe than penalty imposed for transporting liquor within the state, is not violative of ‘equal protection’ clause of Federal Constitution, in view of reasonable basis for the classification which bears fair and substantial relation to the object sought toi be attained by the act.”
“Under 21st Amendment to' Federal Constitution, the state may wholly prohibit transportation or importation of intoxicating liquor into the state, or may forbid all importations which do not comply with conditions which the state prescribes regardless of how the state may deal with or regulate transportation of intoxicatingl liquor within its boundaries, without violating the equal protection clause of the 14th Amendment to' Federal Constitution.”
“Oklahoma statute prohibiting importation of intoxicating liquor into the state without a permit, and providing for issuance of permits for importations of liquor for specified purposes, is not unconstitutional on ground that it prohibits importations of liquor into state, for personal use.”
“Although 21st Amendment to Federal Constitution surrenders to each state the power to prohibit or condition importations of intoxicating liquor in interstate commerce into the state, the amendment does not surrender power of Congress to prohibit or regulate transportation of intoxicating liquor in interstate commerce, and Congress has power to enact legislation to execute amendment and penalize its violation.”
“The Liquor Enforcement Act of 1936 is not unconstitutional on ground that it imposes penalties for violation of state law contrary to Federal Constitution, since penalty imposed is for a violation of the act and not for violation of the state law.”

The reasoning given in support of the conclusions reached in said opinion is sound, and we give our full approval to the same.

As regards the contention of the defendant that the act herein violates the provisions of the Constitution relating to the establishment of agencies for the sale of liquor for medicinal purposes and for the furnishing of liquor for scientific and medicinal purposes, other than this bare assertion of counsel in his brief, no way is pointed out in which the legislative act violates the terms! of the proviso of the constitution in question. Said proviso is as follows:

“Provided, that the Legislature may provide by law * * * for the sale of such liquors for medicinal purposes; and for the sale, for industrial purposes, of alcohol which shall have been denaturized by some process approved by the United States Commissioner of Internal Revenue; and for the sale of alcohol for scientific purposes to such scientific institutions, universities, and colleges as are authorized to procure the same free of tax under the laws of the United States; and for the sale of such liquors to any apothecary who shall have executed an approved bond, in a sum not less than one thousand dollars, conditioned that none of such liquors shall he used or disposed of for any purpose other than in the compounding of prescriptions or other medicines, the sale of which would not subject him to the payment of the special tax required of liquor dealers by the United States * * *.” O. S. 1941, Const. Prohibition Ordinance.

We are unable to say, after a careful examination of this act, that it conflicts with any provision of the prohibition amendment to our Constitution. We think the Legislature by the enactment of chapter 16, supra, has abided by the terms of the proviso' above quoted and by the passage of this law has merely carried out the authority vested by the prohibition amendment to' the Constitution.

This court has held that the transportation of intoxicating liquor in Oklahoma is unlawful, regardless of the intent with which the liquor is conveyed. Watkins v. State, 13 Okla. Cr. 507, 165 P. 621; Barnett v. State, 31 Okla. Cr. 413, 239 P. 680; Dyer v. State, 25 Okla. Cr. 328, 220 P. 69; McGill v. State, 16 Okla. Cr. 657, 185 P. 530.

In the Watkins case, supra, it is stated:

“It is unlawful for any person to convey from place to place within this state intoxicating liquors which said person has previously purchased within this state, and it is immaterial whether the person so purchasing, such liquor and conveying the same intended to use such liquor lawfully or unlawfully. Intent is not a material ingredient of the offense of conveying intoxicating liquors.”

With this conclusion adopted, so far as it concerns the transportation of liquor, we are unable to> see why the same reasoning would not apply to the importation of liquor. The Legislature may make such importation without a permit a crime, regardless of the intent with which such liquor is imported.

Prom the conclusions above reached, it is our opinion that the district court of Pottawatomie county correctly sustained the validity of the act in question. The court erred, however, in sentencing- the defendant on each of the twoi counts set forth in the information.

Only one offense may be stated in an information; hut where the same acts may constitute different offenses or the proof may be uncertain as to1 which of the two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same information; and the accused may be convicted of either offense. He may not be convicted of two offenses under one information. 22 O. S. 1941, § 404; Thoreson v. State, 69 Okla. Cr. 128, 100 P. 2d 896.

The information herein charged only the one offense of importing intoxicating liquor without a permit. The district court treated the information the same as if it had charged two separate offenses. The finding of guilty could carry with it only the one sentence, and that part of the judgment and sentence which attempts to impose a double punishment on the defendant for his conviction of this single crime is void.

The judgment and sentence of the district court of Pottawatomie county is affirmed insofar as it finds defendant guilty of the offense of importing intoxicating1 liquor without a permit; and it is ordered in pursuance to said judgment of conviction that the defendant be confined in the county jail of Pottawatomie county for a term of three months and pay a fine in the sum of $250.

That part of the judgment sentencing defendant to serve three months in the county jail and to pay a fine of $250 on the second count is void, and the same is hereby vacated.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    BERT STEELE v. STATE.
    No. A-10043.
    Feb. 11, 1942.
    (122 P. 2d 400.)
    James K. Eaton, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Bert Steele, was convicted in the district court of Okmulgee county upon an information charging that in said county on the 17th day of January, 1940, he did take, steal and carry away, one 1928 model Willis Knight automobile, the personal property of McGown’s Chevrolet Company, a corporation, and in accordance with the verdict of the jury was sentenced to- confinement in the state penitentiary for the term of five years and to pay the costs.

Prom the judgment rendered on the verdict on September 28, 1940, an appeal was taken by filing in this court on March 26, 1941, petition in error with a duly certified transcript of the record, omitting the instructions of the court.

No brief has been filed and no appearance made on behalf of plaintiff in error in this court. When the case was called for final submission, it was submitted on the record.

On appeal by petition in error and duly certified transcript of the record, omitting the instructions of the court, and where no briefs are filed or appearance made, this court will make an examination of the information and the judgment, and, if no fundamental error is apparent, will affirm the judgment.

We have examined the information and the judgment and sentence, and we have discoyered no' error which will warrant a reversal of the judgment.

The judgment of the district court of Okmulgee county is therefore affirmed.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    HERB P. BORDWINE v. STATE.
    No. A-9918.
    Feb. 11, 1942.
    (122 P. 2d 398.)

      Jim Barnett, of Oklahoma City, for defendant.
    Mae Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant Herb P. Bordwine, LeRoy Goodall, and Orville Brown were charged jointly in the court of common pleas of Oklahoma county with the crime of maintaining and operating a public nuisance. A severance was granted and defendant, Herb P. Bord-wine, was tried before a jury, convicted, and by the court sentenced to pay a fine of $50 and to serve a term of 30' days in the county jail, and has appealed.

It is first contended that the'evidence was insufficient to establish the guilt of the defendant for maintaining a public nuisance. The statute under which this charge was made is Oklahoma Statutes 1931, section 2616; O. S. A., Title 37, § 73. That part of the statute applicable to this charge is as follows:

“All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof, * * * and which is capable of being used as a beverage * * * is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances * * * and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a public nuisance, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than 30 days nor more than six months.”

This charge is based upon the operation by defendant of a place known as the “Casino Bar, located at 1704 Northwest 16th Street in the City of Oklahoma City, Oklahoma.” It is unnecessary to give more than a brief statement of the evidence. It revealed that defendant operated the above-described premises for about a year prior to the 19th day of January, 1940. That it was what is commonly known as a “beer joint,” and that the general reputation of the premises was bad as being a place where intoxicating liquor and whisky were sold, and that it was a place of public resort, where the public came and bought and drank intoxicating liquor, and that the reputation of the place was bad. Many police officers and deputy sheriffs testified to this fact and they said that their testimony was based upon statements and complaints of citizens who resided in close proximity to where the premises were located. This specific charge was based upon a visit to the premises on the day and night of January 19, 1940, by officers of the department of public safety of this state. On the first visit to the premises they purchased from one of the codefendants, Orville Brown, a pint of liquor and paid him $1.50 therefor. The liquor was taken from his person and delivered in the house. Afterwards a search of his person revealed that he had three other pints of whisky thereon. The defendant was not present at this time.

On the next visit, being the same night, they purchased another pint of tax-paid whisky from the said Orville Brown and paid $1.25 therefor. The liquor was taken from his person, but the defendant was also present, and they gave a $5 bill to Orville Brown and he handed it to the defendant, who went to the' cash register and rang up the sale and handed back the change and thanked them for the purchase. During the time they were in the building they saw one of the codefendants sell a pint of liquor to a man and woman seated in one of the stalls in said building, and saw him receive the money therefor. It was delivered from his pocket the same as before.

The record alsoi reveals the evidence of a number of police officers and deputy sheriffs who at different times covering a period of from six to eight months prior to the time alleged in the information made searches of the premises, and that upon practically all of these occasions the defendant was present and operating the business. They were positive as to his being* the owner and conducting the business. On many occasions they testified to the finding of liquor either on the premises or nearby. On several occasions it was found in defendant’s automobile parked in front of the place of business, and on one occasion at least defendant furnished his key to unlock the car where they found 18 pints of whisky. On another occasion police officers telephoned the “Casino Bar” and had delivered to them two pints of whisky. There was also found on the premises by the officers and introduced in evidence two internal revenue licenses, one for the year 1939 and one for 1940. They were of the $25 type, and the officers testified they were the kind issued where both whisky and beer were to be sold. That the one where beer only was to> be sold was $20. From the above statement it will be readily seen that the evidence was sufficient to sustain the charge that defendant was operating a public nuisance as defined by the statute above quoted.

There was other testimony which it is unnecessary to state. Under the former decisions of this court, the evidence was sufficient to sustain the charges. Hochderffer v. State, 34 Okla. Cr. 213, 245 P. 904; Legg v. State, 48 Okla. Cr. 152, 289 P. 1110 ; Wiley v. State, 17 Okla. Cr. 643, 191 P. 1057; King v. State, 71 Okla. Cr. 158, 109 P. 2d 836.

We have examined the record with reference to the contention that the court erred in admitting incompetent, immaterial and irrelevant evidence. This contention is based upon the evidence of one of the officers whn testified as; follows:

“Q. Now, while you were there did you see any of these parties sell any liquor to anybody else? A. Yes, sir. There was a man and a woman in a booth there. I believe it was the first booth on the right-band side and they sold a pint of whisky to this man and woman for $1.50. Q. $1.50?”

It is contended that, because the officer did not testify that; the defendant was present at the time the sale was made by the co defendant Orville Brown, the same was inadmissible. Not so. The evidence revealed that defendant was the owner and operator of the business, and where he was charged with operating a, public nuisance, evidence of sale in his place of business, and especially in view of the evidence in this case, was admissible whether he was present or not.' The exception to the remarks of the county attorney were properly overruled by the court.

We are of the opinion that the judgment and sentence of the court of common pleas of Oklahoma county should be affirmed.

JONES and DOYLE, JJ., concur.


text:
    FLOYD ROUTH v. STATE.
    No. A-10039.
    Feb. 11, 1942.
    (122 P. 2d 397.)
    W. Y. Stanfield, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged the defendant, Floyd Routh, with having on the 16th day of September, 1939, in Pontotoc county, possession of 30 pints of whisky, with the unlawful intent to sell the same. Upon his trial the jury found him guilty as charged in the information, and assessed his punishment at confinement for 30 days in the county jail and a fine of $50. Motion for a new trial was duly filed and overruled and on December 3, 1940, the court sentenced the defendant in accordance with the verdict of the jury.

On March 22, 1941, a.n appeal from the judgment was taken by filing in this court a petition in error with case-made and proper proof of notices. No briefs have been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no. brief in support of the petition in error is submitted, and no appearance for oral argument made, we do not consider it the duty of this court to. go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court Avill examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of unlawful possession of intoxicating liquor. The evidence is amply sufficient to sustain the judgment and sentence. On the record before us, we have discovered no error which would warrant a reversal of the judgment and it appears that the defendant was accorded a fair and impartial trial. The judgment of the lower court is accordingly in all things affirmed.

BABEFOOT, P. J., and JONES, J., concur.


author: JONES, J.

text:
    HAZEL HUTCHINSON v. STATE.
    No. A-9899.
    Feb. 11, 1942.
    (122 P. 2d 395.)

      Jim Barnett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Hazel Hutchinson, was by information, in the court of common pleas of Oklahoma county, on November 7, 1939, charged with unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and to- pay a fine of $50, and appeals to this court.

Counsel for defendant contends that the court erred in overruling defendant’s motion to suppress the evidence and that the evidence is insufficient to- support the conviction.

Upon the hearing on the motion to suppress the evidence, Bob Turner, an officer, stated that he saw three sacks and one box transferred from the car of one Roy Brown to defendant’s car on Grand Boulevard, north of Oklahoma City. He was not acquainted with Brown, but knew that defendant was- in the whisky business. He was driving towards Oklahoma City when he saw the transfer and followed defendant’s car for a time. She drove about 60 or 70 miles an hour and ran a stop line. Turner then stopped her. A box containing 18 pints of Glenmore whisky was in the seat. The paper was torn, and tlie bottles were sticking out. Eighteen other pints of whisky were concealed in the car.

Defendant testified that Turner did not see the packages transferred to- her car; that she knew he was following her, and did not violate any driving rules; that he stopped her and tore the paper off the whisky before he could see it; that the whisky and the car belonged to her.

The motion to suppress the evidence was overruled.

At the trial of the case, Turner testified substantially the same as he did on the hearing to suppress the evidence. Defendant offered no testimony.

In Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99, 100, this court stated:

“This court will not reverse the findings of the trial court upon a question of fact, where there is a conflict of evidence, and there is competent evidence in the record reasonably tending to support the findings of the trial court.”

According to the evidence of the state, which the trial court apparently believed, the officer was doing his duty in stopping defendant after she had driven at a speed exceeding 60 miles an hour and had run a stop line in Oklahoma City. When the car of defendant was stopped, the whisky was in plain sight, so the officer did not exceed his authority in seizing this whisky and searching her car.

It was held in Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465:

“Peace officers have the right to arrest without a warrant all persons who- are guilty of a violation of the criminal law in their presence.” L. P. Hammonds v. State, 73 Okla. Cr. 287, 120 P. 2d 376.

In Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366, 367, it is held:

“The constitutional provision against unreasonable searches and seizures does not preclude the mailing of a seizure, without a Avarrant previously procured, of intoxicating liquor, Avhere there is no need of a search for the liquor because the liquor is fully disclosed to the eye.” Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.

The evidence offered by the state that defendant was in possession of 36 pints of whisby, without any defense having been offered by defendant, is amply sufficient to support the conviction.

For the reasons above stated, the case is affirmed.

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


author: BABEFOOT, P. J. BAREFOOT, P. J.

text:
    RUFUS DARNELL v. STATE.
    No. A-9864.
    Nov. 5, 1941.
    On Rehearing Feb. 18, 1942 .
    (118 P. 2d 1040; 122 P. 2d 395.)

      H. P. Daugherty, of Chelsea, and H. Tom Eight, of Claremore; for defendant.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and W. Hendrix Wolf, of Jay, for the State.
   BABEFOOT, P. J.

Defendant, Bufus Darnell, was charged jointly with Cecil Bedman and Bill Darnell with murder in Delaware county. A severance was demanded and defendant was tried, convicted of maiislaughter in the first degree, and sentenced to serve a term of 30 years in the penitentiary, and has appealed.

Defendant was charged with the murder of Bluford Graham in Delaware county on the 18th day of June, 1939.

In his brief defendant sets out five assignments of error, but they are all presented together and we will so consider them in this opinion. It is first contended that the original complaint upon which the preliminary hearing was had and upon which defendant was bound over to the district court had not been sworn to as provided by law. The record reveals that the preliminary complaint was filed by the county attorney, and that he also signed the affidavit swearing to¡ the same, but that the court clerk did not sign the same and attach his seal to the oath. After defendant was held for trial in the district court and an information was filed against him, he was arraigned and pleaded not guilty. No demurrer or motion to quash the information was filed. At no time was any question raised as tO' the illegality of the complaint until on appeal. Under the decisions of this court defendant waived his right, if any he had, to question the validity of the preliminary complaint. Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002.

It is next contended that the county attorney subpoenaed 37 witnesses and used only 16. There is nothing shown to the prejudice of defendant by this action.

It is next urged that the evidence does not show that the crime was committed in Delaware county and that the venue was not properly shown. One of the witnesses testified that the crime was committed within half a mile of Jay, and several other witnesses testified it occurred between G-rove and Jay. The court could take judicial knowledge that both of these cities were in Delaware county. Doctor R. W. Otey, a witness for the state, testified that he examined the body at the scene of the killing and it was “In Delaware County, State of Oklahoma.” This evidence was sufficient, in our opinion, to establish the venue in Delaware county. Wise v. State, 46 Okla. Cr. 200, 284 P. 306; Hunter v. State, 6 Okla. Cr. 446, 119 P. 445; Smith v. State, 31 Okla. Cr. 230, 238 P. 866; Tarkington v. State, 41 Okla. Cr. 423, 273 P. 1015.

It is next contended that the evidence is insufficient to sustain the conviction of this defendant. It is unnecessary to give a lengthy detail of this evidence. We have carefully read the record, heard the oral argument and read the well prepared briefs filed in this case. The evidence of the codefendant, Cecil Redman, and the defendant himself is such that if believed by the jury, and it evidently was since they returned a verdict of guilty, was sufficient to sustain the verdict. It is true that there were some conflicts in the evidence, but in the main there was no conflict, and from the view we take of the case, even under the evidence of defendant himself and the surrounding circumstances, defendant was guilty of manslaughter in the first degree. Under the evidence of his codefendant, Cecil Redman, he was guilty of murder. Defendant’s testimony was as follows:

“Q. What did you do? A. Well, I reached over and took the gun from him. Q. What did you do? A. I just stuck it out along the side of the car. I don’t know why I did, just stuck it out of the window. Q. Did you aim to kill Bluford Graham? A. No, sir. Q. Did you aim to kill anybody? A. Not anybody. Q. Did you shoot anybody? A. Yes, I shot it. I just held it down there and' shot it.”

Defendant also complains that the county attorney asked questions of witnesses in such a manner as to prejudice the jury. We have examined the record in reference thereto' and do not find anything prejudicial to the substantial rights of the defendant. The court- sustained objections to questions that were inadmissible, and the trial was conducted in a manner that in no wise prejudiced the defendant. During the progress of the trial and while the witness Cecil Redman. was on the stand testifying., the county attorney stated to the court and in the presence of the jury that he had been surprised by the testimony given by the witness and desired to place witnesses on the stand to impeach his testimony. The .jury was excused and out of their1 presence the county attorney made a statement to the court of the statement made by the witness to him on the night before in the presence of Jap Holland, sheriff, Mr. Fox, undersheriff, Charles Price, jailer, and Riley Hunt, attorney for defendant. After this statement had been made by the county attorney, the court ashed the witness if he had made the statement, as follows:

“The Court: What about that? Did you tell them that last night? A. Yes, sir. Q. Is it so? A. Yes. Q. Why didn’t you tell it awhile ago on the witness stand? The Court: You testified you came out of the by-road and Rufus went north towards Grove, and stopped, then you took the wheel; why did you turn around then? A. He told me to. The Court: Who did? A. Rufus. Q. Tell you what he was going to do? A. No, sir.”

The court then recalled the jury and the witness testified before the jury about as had been stated by the county attorney to the court. This procedure was in the discretion of the court. We do not see that the defendant’s rights were prejudiced thereby, especially in view of all the evidence in the case, including that of the defendant himself.

It is also contended by the defendant that the evidence of the witness Cecil Redman is not corroborated and that it should be, as he was an accomplice. In addition to the evidence corroborating his testimony, the evidence of the defendant himself clearly corroborates him in many respects. It has been held by this court that the evidence of the defendant may be sufficient to corroborate the testimony of an accomplice. Brewer v. State, 63 Okla. Cr. 389, 75 P. 2d 901; Howard v. State, 70 Okla. Cr. 165, 105 P. 2d 440; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289; Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; Blumhoff v. State, 72 Okla. Cr. 339, 116 P. 2d 212; Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763.

The evidence in this case revealed that defendant, his brother, Bill Darnell, and his cousin, Cecil Redman, went to the town of Grove in Delaware county on the evening of June 17, 1939. During the evening and night they visited beer halls there and were drinking. The deceased, Bluford Graham, was also in Grove at the same time. The record reveals that there had been a long-time enmity existing, between the deceased and Bill Darnell, defendant’s brother. Defendant testified he did not know of this ill feeling. During the evening a controversy arose between Bill Darnell and the deceased, Bluford Graham, in one of the beer halls. There was some conflict in the evidence as to whether the defendant was present at the time of this controversy and the part he took therein. At about 12:30 the defendant and his brother, Bill Darnell, and his cousin, Cecil Bedman, went to their car for the purpose of going to the home of their Aunt Sally Fields. The deceased, Boone Van Hoosifer, Boy Paddeck, and Vestal Boberts left Grove at about the same time as did the defendant and his party. They went toward Jay, in Delaware county, and turned off the 59 highway a short distance to take Boy Paddeck home. The car of the defendant had been following the car in which deceased was riding. They started on toward Jay, and a car was following* them. Deceased ivas shot with a 22-caliber rifle while he sat in the car. He died from the effects of this wound.

The evidence revealed that he was shot by the defendant, he himself testifying that he fired the gun. The co-defendant Cecil Bedman testified that the defendant leaned out of the car and fiped the shot and that there was only one shot fired. Cecil Bedman also testified that there was talk by the defendant and his brother1 about the killing of deceased, and that each one wanted to do it, but the defendant fired the shot. Under this evidence the jury was amply warranted in returning a verdict of guilty against the defendant.

Under the facts we do not feel the punishment assessed was. excessive. It was assessed by the jury in the verdict they returned. It' is true that there had been no ill feeling between the defendant and deceased, but there is evidence that he took up the quarrel of his brother and without justifiable or excusable cause fired the fatal shot that took the life of deceased. Under the testimony of Cecil Eedman the defendant was guilty of murder. The fact that Cecil Redman had served a term in the reformatory of Louisiana was probably the reason for the jury finding the defendant only guilty of manslaughter in the first degree and not of murder.

For the reasons' above stated, the judgment and sentence of the district court of Delaware county is affirmed.

JONES and'DOYLE, JJ., concur.

On Rehearing.

BAREFOOT, P. J.

A rehearing was granted in the above case, and counsel for the state and the defendant were requested to re-argue the above case. This hearing was had on the 27th day of January, 1942. We have again carefully reviewed the record and considered the facts and circumstances surrounding this case and have come to- the conclusion that justice would be best subserved by reducing the punishment assessed from a period of 30 years in the penitentiary to a period of 15 years. It is unnecessary to further review the record and the evidence. As so modified the judgment and sentence of the district court of Delaware county is affirmed.


text:
    MAMIE TYLER v. STATE.
    No. A-9917.
    Feb. 18, 1942.
    (122 P. 2d 826.)

      Page & Spencer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Mamie Tyler was charged in the county court of Grady county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $150, and has appealed to this court.

In the brief filed herein by the defendant, two propositions are presented:

(1) The evidence of the state is insufficient to support the verdict; (2) the punishment assessed is excessive.

The question of the sufficiency of the evidence was never raised in the trial court. No demurrer to the evidence as being insufficient, nor motion for a directed verdict, was ever presented. Neither was such question raised in the petition in error filed herein.

It is well established that errors occurring during the trial cannot be considered unless they were incorporated in the motion for a new trial, and thereby submitted to the trial court and its ruling thereon excepted to and afterwards assigned for error. Ledgerwood v. State, 6 Okla. Cr. 105, 116 P. 202; Cardwell v. State, 20 Okla. Cr. 177, 201 P. 817; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Brashears v. State, 38 Okla. Cr. 175, 259 P. 665.

However, if the errors complained of are fundamental in character, such questions would be considered in this court even though raised for the first time on appeal.

Fundamental errors are those which go to the foundation of the case, or which take from the defendant a right which was essential to his defense.

Where there is total lack of any evidence to show the commission of a crime, or to connect the defendant with a crime after the commission is shown, such a deficiency would be considered a fundamental error.

The case is weak, Three and one-half pints of whisky were found in the possession of a neighbor residing adjacent to the home of the defendant by officers of Grady county. The person in whose possession the whisky was found told the officers it belonged to the Tylers. The officers went immediately to the home of the defendant next door and the defendant, when questioned concerning the whisky, stated it was her liquor and that she was ready to go with the officers. The woman in whose house tlie whisky was found testified for the state that the whisky was brought to1 her house and hidden in a basket by the husband of the defendant who* stated they were expecting a raid.

As hereinbefore pointed out, no objections were made to the introduction of any of the evidence and no question as to the sufficiency of the evidence was ever presented, and while the evidence is weak, Ave cannot say that there is an absolute lack of any testimony to show the defendant guilty of the offense.

Because of the weakness of the state’s case and the small amount of intoxicating liquor involved, we feel that the contention of the defendant that the punishment assessed is excessive should be sustained.

It is therefore ordered that the judgment of the county court of Grady county be reduced from 30 days in the county jail and a fine of $150 to 30 days in the county jail and a fine of $50, and the judgment and sentence of the county court of Grady county, as thus modified, is affirmed.

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


text:
    JOHN ARMSTRONG v. STATE.

      No. A-9912.
    Feb. 18, 1942.
    (122 P. 2d 823.)

      John F. Thomas, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, John Armstrong, was charged in the district court of Comanche county by two informations filed on September1 13, 1939, and by one information filed on October 9, 1939, with fraudulently obtaining property by means of a bogus check. The cases were consolidated for the purpose of taking evidence, and have been consolidated in this, court for the purpose of appeal. Defendant was tried to the court without a jury and convicted in all three cases. He was sentenced to three years imprisonment in the State Penitentiary in each case, the sentences to rnn concurrently, and appeals to- this court.

Counsel for defendant contends that the evidence is insufficient to support the convictions.

Section 208'6, O. S. 1931, 21 Okla. St. Ann. § 1541, states that every person who, with intent to cheat and defraud, shall obtain from any person, by means or use of any false or bogus check, anything of more than $20 in value shall be guilty of a felony.

“The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima, facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within five days from the date the same is presented for payment; and, provided, further, that said check or order is presented for payment within 30 days after same is delivered and accepted.”

Ed Morrow testified for the state that on Sunday, July 23, 1939, defendant came to his place and bought two- bull calves. Defendant gave him a check for $60, dated July 22, 1939, drawn on defendant’s account. Nothing was said about the date that check was to be presented for payment or there being insufficient funds to- pay it. On July 25th, Morrow presented the check a,t the bank on which it was drawn and payment was refused. Defendant stated if the prosecution were dropped, he would try to pay the check.

R. E. Paries stated that on Sunday, July 23, 1939, he sold defendant six calves and a heifer. Defendant gave him a check drawn on his account in the sum of $102.50, dated July 22, 1939. Nothing was said about insufficient funds or time for presentation of the check. On July 25th, payment of the check was refused. Defendant told witness that he could get the money for the check if he could get the check. Defendant never offered him the money.

T. J. Clark, Jr., testified that defendant bought a cow from him on July 23, 1939, and gave him a check for $35 drawn on defendant’s account, dated July 22, 1939. Payment was refused on the check on July 25th and 26th. Witness had no reason to believe that the check would not be paid upon presentation. Defendant told him that he would try to pay the check after the bank had refused payment.

Harold Huffer, teller at the Security Bank & Trust Company of Lawton, stated that defendant had $15.50 on deposit at that bank on July 22, 1939, and had made no deposits since that time. The three checks given by defendant were drawn on the bank for which he worked, that the signatures were defendant’s, and that there were insufficient funds to pay any of the checks.

Joe Tice testified for defendant that on July 24, 1939, defendant sold some cattle in Duncan, and was paid $20 in cash and the balance in a check.

Jim Glover, on behalf of defendant, said that he offered to let the defendant have the money he needed to pay off the $102.50 check given to Faries, if defendant would get the check.

Defendant, testifying in his own behalf, stated that in buying cattle which were to be resold immediately, it was the custom to give checks on a bank and then deposit the money to' take care of the checks when the cattle were sold. He admitted giving the checks, knowing that he did not have sufficient funds in the bank to cover any of them. He states that he advised Marlow and Faries of this fact, but only inquired of T. J. Clark when he would present the check for payment. He didn’t remember of having seen T. J. Clark, Jr. Defendant could have borrowed the money from Jim G-lover to take up the Faries check, but was unable to malee arrangements with Faries.

Defendant’s testimony further states that the cattle were sold on July 24th. Defendant was paid after dark. He received $20 in cash and a check for either $186 or $196 to be deposited to take care of the outstanding checks. He was feeling bad when he went home. He took a drink and got drunk. Four or five or six days later he woke up in Burkburnett, Tex., with four or five or six dollars in his pocket. He does not know what happened to the check.

Defendant admitted prior convictions for manslaughter, driving while drunk, and possession of whisky.

In the case of Huckaby v. State, 22 Okla. Cr. 376, 211 P. 525, it was held that under the bogus check statute, before the 1923 amendment, where checks were given in payment of the purchase price of cattle and the vendors were expressly informed that there was then no money in the bank to honor such checks, but parted with the cattle on the strength of the purchaser’s promise to< take care of such checks in the future, a failure to keep these promises did not constitute false pretense.

In 95 A. L. R. 494, it is stated:

“* * * under statutes of the type under consideration, disclosure by the drawer to the payee that he has not at the time sufficient funds in the bank to meet the check, purges the transaction of its criminal character, because under such circumstances the element of fraudulent intent is lacking and the transaction in its essential nature is an extension of credit to the drawer.”

In Gunther v. State, 42 Okla. Cr. 129, 276 P. 237, 238, this court said:

“It is apparent from the act that it was the intent of the Legislature to make it a criminal offense for any person to' obtain money or anything of value by giving a check on a bank in which he had no funds at the time to meet the same, or which funds at the time were insufficient to pay the check. The indorsement of the check by the drawee, ‘insufficient funds,’ would be prima.facie evidence of the intent to defraud, provided that the drawer did not pay the drawee the amount of the check with protest fees within five days from the date of the presentment thereof for payment.”

The state made a prima facie case by showing that defendant obtained cattle for the checks; that the checks were presented and payment refused within 30 days from the date of delivery of the check; that the defendant did not have sufficient funds in the bank to pay any of the checks; and that the checks were not paid by the defendant within five days after the drawee refused payment.

Defendant offered evidence of having no intent to defraud by showing the custom of cattle buyers, by stating to Marlow and Faries that he did not have sufficient funds in the bank, and by having the proceeds from the sale of the cattle put into check form so that the outstanding checks would be honored.

The intent of defendant thus became a question of fact for the court, who was sitting in this case without a jury, to decide.

In Beach v. State, 28 Okla. Cr. 348, 230 P. 758, this court held:

“Fraudulent intent is the gist of the offense of obtaining money by means of a bogus check.
“(a) Where there is competent evidence supporting a finding of such intent, the verdict of the jury will not be disturbed, because there is some testimony tending to indicate there was no such fraudulent intent.”

We find no prejudice or abuse of discretion in the action of the trial court.

The case is affirmed.

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


author: BABEFOOT, P. J.

text:
    WALTER W. COMPTON v. STATE.
    No. A-9919.
    Feb. 18, 1942.
    (122 P. 2d 819.)

      See, also, 70 Okla. Cr. 258, 105 P. 2d 793.
    D. S. MacDonald, Jr., of Durant, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Bill Steger, Cot Atty., of Durant, for the State.
   BABEFOOT, P. J.

Defendant, Walter W. Compton, was charged in the district court of Bryan county with the crime of assault with intent to kill, was tried and convicted of the crime of assault with a dangerous weapon and his punishment assessed at two years in the penitentiary, and he has appealed.

This charge was the outgrowth of a shooting by defendant of Fred Bookout, in Bryan county, on the 29th day of March, 1934. Defendant was not apprehended until the 1st day of April, 1938, and was tried, and convicted as above stated on the 30th day of May, 1940. His appeal was filed in this court on the 29th day of November, 1940, and was submitted on the 27th day of April, 1941.

In the brief of defendant but two1 questions are relied upon for reversal of this case. They axe:

“(1) The lower court committed reversible error in excluding testimony to explain defendant’s absence and in instructions pertaining to flight.”
“(2) By the giving of instruction No. 13, admitting prejudicial evidence and excluding competent evidence and by the asking of improper questions to prejudice the jury on irrelevant matters Walter W. Compton was prevented from having a fair and impartial trial.”

For consideration of these propositions it is unnecessary to give a detailed statement of the voluminous evidence as revealed by the record. Defendant was. charged under Oklahoma Statutes 1931, section 1873, 21 Okla. St. Ann. § 652, which is as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to> shoot at another, with any kind of firearm, airgun or other means whatever, with intent to- kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.”

He was convicted of assault with a dangerous weapon as defined by Oklahoma Statutes 1931, section 1870, 21 Okla. St. Ann. § 645, as an included offense. This was proper under the decisions of this court. Castleberry v. State, 26 Okla. Cr. 59, 221 P. 1044; De Witt v. State, 58 Okla. Cr. 261, 52 P. 2d 88; Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910; Horton v. State, 35 Okla. Cr. 80, 248 P. 878; Wheeler v. State, 66 Okla. Cr. 127, 90 P. 2d 49; Bayne v. State, 72 Okla. Cr. 52, 112 P. 2d 1113

The evidence of the state was that defendant shot the prosecuting witness, Fred Bookout, three times1 with a shotgun; that he was at a distance of between 50 and 60 yards; that the prosecuting witness did not know that he was being attacked by defendant. He was shot in the back of the neck and side of the face with his back to defendant at the time the shots were fired. Several eyewitnesses testified that defendant was behind a tree with his gun resting against the same at the time the shot was fired. The difficulty was the outgrowth of a fight between the parties just a short time prior to the shooting. Both parties went to their homes and procured guns and returned to the scene of the difficulty. One of defendant’s sons1 had shot the prosecuting witness with a shotgun just prior to the time he was shot by defendant. Under this statement it will be readily observed that the evidence was sufficient to1 sustain the judgment and sentence. It would have easily justified a sentence under the attempt to kill statute above quoted.

After the shooting defendant went to' the home of Alvin Willingham and was by him taken in an automobile to the town of Caddo, in Bryan county. He left the county and state and was not apprehended until the 1st day of April, 1938.

The first contention is based upon the evidence of the sheriff of Bryan county, Ben Eisner, upon cross-examination, and Alvin Willingham, a witness for. defendant who testified by deposition, he being the party who took the defendant to Caddo after the difficulty as above stated, and the evidence which defendant offered to show that the prosecuting witness was searching for defendant with a shotgun after he had left and which was excluded by the court. A careful examination of - the record discloses that defendant at no time knew of any search for him by the prosecuting witness, nor did he in any way attempt to explain his four-year absence from the state. The evidence simply revealed that defendant went to Caddo and on into' the, oil fields, and that he was at one time seen in Pampa, Tex., in April, 1985, by his own witness Alvin Willingham. He never attempted to explain his flight to Texas. The charge of the court with reference to flight was No. 14, as follows:

“Evidence has been introduced relative to the departure of the defendant after the alleged assault had taken place. You are instructed that you must first determine whether or not the actions of the defendant constituted! flight. In this connection you are told that one who absents or conceals himself, conscious of his guilt of a crime, can be said to be in flight if the jury believe all these facts. However, a defendant may explain his absence, and if he does so to the satisfaction of the jury, or if the jury have a reasonable doubt as to whether or not he was in flight, then the fact of his absence is not a circumstance against him. If the jury believe from the evidence beyond a reasonable doubt that the defendant was in flight after the alleged assault took place, then this is a circumstance to be considered by you, with all the other evidence, to aid you in determining the question of his guilt or innocence.”

This instruction was a very fair one, taking* into consideration the evidence in this case, and this applies to the evidence of defendant’s witness, Alvin Willingham, who testified that defendant wanted him to bring him to Caddo to see a deputy sheriff, and that when he left him stated that he was going to see a deputy sheriff, but that he did not do so, and that when he waited for ten or twenty minutes for his return, he went away. This evidence, coupled with the fact that defendant did leave the county and state and did not return and give himself up to the officers for a period of four years, and that no explanation of his absence was attempted in his own testimony, was sufficient for the court to present the issue to the jury as a question of fact for their consideration; and certainly the above instruction very fairly presented this issue and in no way was prejudicial to the rights of the defendant.

The refusal to permit the witness Eoy Laughlin to testify that prosecuting witness and his brother were searching for defendant during his absence and that they had a gun was not error. There is nothing in the record to show that this information was ever conveyed to defendant. Counsel for defendant in his brief quotes from 16 Corpus Juris 552 in giving a definition of flight, as follows:

“The term signifies, in legal parlance, not merely a leaving, but a leaving* or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.” See, also1, 22 C. J. S., Criminal Law, § 625.

The evidence and the record in the instant case brings the defendant clearly within the terms of this definition when it says, “a leaving * * * under a consciousness of guilt and for the purpose of evading arrest.”. The mere fact that parties may have been searching for him did not justify his fleeing and remaining away, and the fact that the sheriff of Bryan county had a warrant for his arrest and was looting for him was no reason for his absenting himself from the county and from the state. If he had any valid reason it would have been permissible for him to submit such evidence to the jury, but he made no attempt to do so. The mere fact that he was afraid of bodily harm at the hands of the prosecuting witness did not justify his fleeing and remaining away. As a matter of fact, if he had surrendered to the deputy sheriff as he stated he was going to do on the date of the conflict there would have been no opportunity for harm at the hands of the prosecuting witness.

All through the record in this case there was evidence of the defendant that he intended to and was making* preparations to leave on the very day this difficulty arose, and that he intended to go to Ada to try to- secure work in the oil fields, thisi being, his occupation. The court at no time denied defendant the right to introduce this evidence and it was for the proper consideration of the jury as the other evidence in the record upon the question of flight, and no' doubt was so considered by the jury. Robinson v. State, 8 Okla. Cr. 667, 130 P. 121; Jackson v. State, 12 Okla, Cr. 406, 157 P. 945; Colglazier v. State, 23 Okla. Cr. 23, 212 P. 332; Sprouse v. State, 52 Okla. Cr. 184, 3 P. 2d 918.

The statement in defendant’s brief that the question of flight was the only evidence that caused the jury to convict the defendant cannot be harmonized with the record in this case. The evidence of the defendant and that of his family is such that justifies a verdict of guilty in this case, not considering the evidence of several disinterested witnesses. The sons of the defendant were in no immediate danger of the loss of their lives nor of suffering great bodily harm at the hands of the prosecuting witness at the time defendant shot, nor was the prosecuting witness in any way committing any overt act either toward the defendant or his sons or family. We find no error of the court as contended in defendant’s first assignment of error.

The second contention of defendant is that the court erred in giving* instruction No. 13, which was as follows:

“You are instructed that if you find from the evidence beyond a reasonable doubt that the complaining witness, Fred Bookout, did not make some overt act or demonstration at the time of the difficulty indicating to the defendant, as a reasonable man, an intention to assault him or liis son and do some serious bodily harm or kill either of them, then the fact of a previous difficulty is immaterial for any purpose in the case, and should he disregarded by the jury and given no weight.”

Counsel for defendant contends in his brief that this instruction “is erroneous in its entirety. It did not, nor did any of the other instructions, take into consideration that from the circumstances there existing defendant may have been properly led to- have believed that prosecuting witness was about to make an overt act which would have endangered the life of his son.” This statement is not the law. No- authorities are cited in defendant’s- brief to substantiate this contention. In Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, 972, Ann. Cas. 1912B, 766, this court said:

“The law does not permit one to kill another merely because the other has made threats against him. And unless the deceased at the time of the fatal difficulty, without being willfully provoked thereto- by the defendant, and without the defendant having sought the difficulty or having voluntarily entered into it, made some overt act or demonstration indicating to- the defendant as a reasonable man an intention to kill him or do him some great bodily injury, then any threats previously made against or communicated to the defendant are immaterial for any purpose in the case; and the jury should be so instructed. We therefore find no- error in the instruction given. Morris v. Territory, 1 Okla. Cr. 617, 99 P. 760, 101 P. 111; Reed v. State, 2 Okla. Cr. 589, 103 P. 1042; Wigmore on Evidence, vol. I, §§ 110, 111.”

See, also, Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A. L. R. 405; Ging v. State, 31 Okla. Cr. 428, 239 P. 685.

In People v. Westlake, 62 Cal. 303, the court says:

“Past threats or conduct of the deceased, how violent soever, will not excuse a homicide, without sufficient present demonstration to authorize the belief that the deadly purpose then exists, and the fear that it will then be executed.”

Defendant’s own testimony did not show any overt act on the part of the prosecuting witness and his own witness, Alvin Willingham, testified: “Just as soon as Compton came out from the canyon, Bookout broke to run.”

From the examination of the record in this case we find nothing that deprived this defendant of any substantial right. The instructions of the court as a whole were very fair to the defendant and stated the law as shown by the testimony and issues in this case. The defendant was indeed fortunate that his counsel was able to secure a verdict of only assault with a dangerous weapon and his punishment assessed at two years in the penitentiary.

The judgment and sentence of the district court of Bryan county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    BEN HUDGENS v. STATE.

      No. A-9906.
    Feb. 18, 1942.
    (122 P. 2d 815.)

      Robert J. Bell, of McAlester, for defendant.

      Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of Mc-Alester, for the State.
   BAREFOOT, P. J.

Defendant, Ben Hudgens, was charged in the county court of Pittsburg county with the crime of unlawful possession of intoxicating liquor, to wit: eight half-pints of Sunny South whisky, was tried, convicted and sentenced to pay a fine of $100, and serve 30 days in the county jail, and has appealed.

Defendant has assigned 12 errors, but in his brief has discussed them under five heads. The first three are that the court erred in overruling the motion to suppress the evidence and to quash the search warrant.

The search was based upon a search warrant issued to search the residence of defendant. It was issued on the first day of February, 1940. It is contended that the proof did not show that it was a place of “public resort” nor was it “a store, shop, hotel, boarding house, or place for storage” as provided by Oklahoma Statutes 1931, section 2639, O. S. A. Title 37, § 88. It is further contended that the affidavit upon which the search warrant was based was upon information and belief. The affidavit was as follows:

“State of Oklahoma, In the Justice of the Peace Court ss.
“Pittsburg County, Before Ernest W. Thomas Justice of the Peace in and for McAles-ter District, Pittsburg County, Oklahoma,
“The State of Oklahoma vs. “Ben Hudgens and Peggy Hudgens
“Comes now Walter Haggard and being duly sworn on oath states to the court that he has probable cause to believe and affiant does believe that intoxicating liquor is being manufactured, sold, bartered, given away and otherwise furnished, by: Ben Hudgens and Peggy Hud-gens upon and about the following described premises to-wit: One five room stone veneer house a.t No. 1020 East Delaware Avenue in the City of McAlester, Oklahoma, and occupied by Ben Hudgens and Peggy Hudgens as a residence.
“That said premises are occupied as a residence and a part or all of said residence is used as a store, shop, hotel, boarding house or place of storage and said residence is a place of public resort: That the said Ben Hud-gens and Peggy Hudgens has1 the reputation in the community in which he resides and in which the above described premises are located of being a person who deals in intoxicating liquor in violation of law and that the above described premises have the reputation in the neighborhood in which they are situated of being a public nuisance and a place where intoxicating liquors can be and are bought and consumed by the public in general at any hour of the day or night; that this affiant has seen known users of intoxicating liquor, several at a time, coming from said premises in a state of intoxication and has seen liquor drinkers, several at a time, going into said premises at a late hour1 of the night; that it has been reported to this affiant by reputable citizens that intoxicating liquors are at the present time kept and sold upon said premises by the said Ben Hudgens and Peggy Hud-gens in violation of law. That affiant has personally seen large numbers of automobiles take personal property from said premises at all hours of the night. That the said Ben Hudgens has a United States liquor dealers license. The said Ben Hudgens and Peggy Hudgens have heretofore been convicted of possession of intoxicating liquor with intent to sell, give away or otherwise furnish the same.
“That said liquors are so kept, stored, sold, given away or manufactured and otherwise furnished in violation of law and against the peace and dignity of the state.
“Wherefore complainant prays that a search warrant issue and a search of said premises be made for all liquor, vessels in which, it is contained and all implements and utensils used in the unlawful manufacturing of said liquor.
“Walter Haggard
“Subscribed and sworn to before me this 1st day of February, 1940.
“Ernest W. Thomas
“Justice of the Peace.”

The question of the sufficiency of the affidavit to support the issuance of a search warrant must be determined from the terms of the affidavit. The argument that its terms should not be considered because a part of them were in printed form cannot be sustained. A reading of the affidavit reveals that the identical- words of the statute are used when it states “said residence is used as a store, shop, hotel, boarding house or place of storage, and said residence is a place of public resort.” It is true that in the first paragraph of the affidavit it is stated that affiant “has probable cause to believe and affiant does believe,” but in the following paragraph the facts are stated in positive terms upon which this belief is based. When these positive facts “which are personally known” are stated, it should not be held that this statement is dependent upon the first paragraph of the affidavit as above stated. Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162; Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 187.

These facts which were personally known to affiant are stated in the affidavit above quoted. It is unnecessary to repeat them. They were sufficient upon their face to- cause the magistrate to believe there was probable cause for the issuance of a search warrant to search the premises described therein. This is in harmony with the later decisions of this court. Wagner v. State, supra, and Hays v. State, supra.

There was evidence introduced by the state to show* that defendant had obtained and was in possession of a federal liquor dealer’s license. It was contended by defendant that this license was for his restaurant or place of business which was situated about 12 blocks from where the liquor in question was found at his residence. However, his testimony shows that he had taken out a $25 stamp which was for the sale of both beer and intoxicating liquor. The price of a beer stamp was only $20. It is argued by defendant that the fact that the affidavit states the defendant “Ben Hudgens has a United States liquor dealers license” should not have been considered by the court in determining Avhether the search warrant should have been issued. In support of this contention the case of Robinson v. State, 66 Okla. Cr. 139, 90 P. 2d 54, is cited. This case does not support defendant’s position. In the Robinson Case there was no evidence to sIioav that defendant had possession of the liquor charged. In the instant case the liquor was found in the home or residence of defendant, and the question of possession was a question of fact for the jury to decide. We have held in the case of Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300, that an allegation such as above was proper1 for the consideration of the magistrate in determining whether or not a search Avarrant should be issued.

The evidence in this case revealed the defendant wasl the owner of a residence at “No. 1020 East Delaware Avenue in the City of McAlester, Oklahoma,” on the 1st day of February, 1940. That he and his family resided there. That he operated a restaurant about 12 blocks distant therefrom. That on February 1, 1940, the sheriff of Pittsburg county and two of his deputies procured a search Avarrant and searched the residence of defendant as above described. Neither defendant nor his wife was present at the time the search was made, but they were at his place of business. That it was necessary to- break the screen i in order to> enter the house, but no property of any kind was destroyed or interfered with in making this search. The officers are to be commended in so conducting themselves. The officers found under the bathtub behind a paper that was torn from the wall eight half-pints of whisky. The officers also found a truck in the backyard, and in the truck and near it were found a number of brown paper wrappers such as come around bottles of whisky and marked “SS”, which the officers testified were the initials for “Sunny South” whisky, and a number of empty whisky bottles. Proof was also offered by the state to show the possession of the federal internal revenue stamp as above indicated.

Defendant on cross-examination testified that he had been previously convicted and served a sentence for a violation of the prohibition law. Defendant took the witness stand and denied possession of the liquor, stating that he never knew it was there and that his truck wasj broken and had not been used for some time. It will thus be seen that an issue of fact was presented to the jury, and this court will not set aside a verdict of the jury where there is a conflict in the evidence and the evidence of the state is sufficient to sustain the same.

It is further contended that the court erred in refusing. to give certain requested instructions and erred in certain instructions given to the jury. It would unnecessarily prolong this opinion to go' into a detailed discussion of these alleged errors. The contention is very technical. The instructions requested were given in a modified form, and we think that the instructions as a whole fairly stated the law.

It is further contended that the court erred in permitting the county attorney to ask certain questions with reference to proof of the reputation of defendant and defendant’s home without the proper predicate being* laid therefor. The court sustained objections to this testimony and instructed the jury not to consider the same. It is contended that the asking of these questions by the county attorney in the presence of the jury was prejudicial to defendant, notwithstanding the sustaining of objections to same by the court. We have often held that it is not permissible for the state to prove the reputation of defendant where one is charged with the unlawful possession of intoxicating liquor. Lindsey v. State, 31 Okla. Cr. 406, 239 P. 684; Giles v. State, 55 Okla. Cr. 145, 28 P. 2d 600. It is permissible to prove the reputation of the premises after a proper predicate is first laid showing that the place is a place of public resort or comes within the terms prescribed by the statute. Rainey v. State, 71 Okla. Cr. 1, 107 P. 2d 371; Strong v. State, 63 Okla. Cr. 184, 73 P. 2d 876; Frazier v. State, 31 Okla. Cr. 324, 239 P. 185; Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Brown v. State, 72 Okla. Cr. 333, 116 P. 2d 216. While we do not consider that these errors are sufficient to reverse this case by reason of the fact that the court sustained objections to this evidence and instructed the jury not to consider the same, we are of the opinion that the judgment and sentence should be modified to the minimum punishment provided by the statute by reason of the county attorney’s asking these questions in the presence of the jury.

The judgment and sentence of the county court of Pittsburg county is modified from a judgment and sentence of $100 fine and 30 days, in jail to> a fine of $50 and 30 days in jail, and as so modified, the judgment and sentence is affirmed.

JONES, J., concurs. DOYLE, J., absent and not participating.


text:
    JACK YOUNG v. STATE.
    No. A-9891.
    Feb. 25, 1942.
    (123 P. 2d 294.)

      Hulsey & Hulsey, of McAlester, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen. and Paul Goteher, Co. Atty., of McAles-ter, for the State.
   BAREFOOT, P. J.

Defendant, Jack Young, was charged in the county court of Pittsburg county with the crime of unlawful possession of intoxicating liquor, to wit: “One pint and six half pints of mixed whisky,” was tried, convicted, and sentenced to pay a fine of $50 and serve 30 days in the county jail.

This charge was the outgrowth of a search of defendant’s residence at “No. 2 West Kiowa Street, McAlester, Pittsburg County, Oklahoma,” on the 29th day of November, 1939, by the sheriff of Pittsburg county and two deputies and the finding of the liquor above described in an attic in said residence.

Defendant for reversal of this case contends':

First. That the trial court erred in refusing to sustain his motion to' disqualify himself.

Second. That the court erred in refusing to sustain his motion to suppress the evidence obtained under the search warrant for the reason that the same was illegal and void.

Third. That the evidence is insufficient to sustain the verdict, and that the court should have sustained the demurrer to the evidence and instructed the jury to return a verdict of not guilty.

It may first be stated that the information in this case was filed on the 5th day of December, 1989. It charged the defendant and his wife, Ethel Young, jointly. On the 27th day of March, 1940, defendants filed a motion to disqualify the county judge of Pittsburg county, which wasi as follows:

“Comes now the defendants, Jack Young and Ethel Young, and make application to the court for the Honorable Wm. Jones, County Judge, to disqualify in this cause of State of Oklahoma vs. Jack Young and Ethel Young, No. 4946 in the County Court of Pittsburg County, Oklahoma, for the reason that the said County Judge has prejudged the guilt or innocence of the defendant, Jack Young, and has publicly declared that said Jack Young is a bootlegger and criminal, and has threatened to> wear the county jail out with the said Jack Young if the said Jack Young did not cease the commission of the alleged crime of the violation of the prohibition laws of the State of Oklahoma, and these defendants state that they do not believe they can have a fair and impartial trial before said County Judge because of the prejudice of said County Judge against the said Jack Young, one of the defendants in this action, he being the husband of the other defendant, Ethel Young.
“Wherefore the said defendants move the court to disqualify in this cause.”

To this motion there was attached the affidavit of Joe Dyer, Jr., which was as follows:

“Joe Dyer, Jr., being duly sworn, makes affidavit and says that on about the 18th day of November, 1939, when he appeared before Wm. Jones, County Judge of Pittsburg County, Oklahoma, to qualify on the appearance bond of Jack Young and Ethel Young, in the County Court in and for Pittsburg County, Oklahoma, the said County Judge, Wm. Jones, warned him to not sign said bond or cautioned him that he should not sign said bond, stating to this affiant that the said Jack Young was one of the biggest criminals and bootleggers in Pittsburg County, or words to that effect.”

On the same day, March 27, 1940, this case was set for trial, and a jury was in attendance upon the court. The motion was presented to the court, and in support of the motion defendant was offered as a witness and examined. It is unnecessary to give all of his testimony. Reference will hereafter be made as occasion demands. No other evidence was offered by defendant. The court, in overruling the motion to- disqualify himself, made a lengthy statement which is shown by the record. In this statement the court expressly stated that notwithstanding any personal opinion, he could and would give the defendant a fair and impartial trial. The only question passed upon by the court in the trial of the case was the motion to suppress the evidence. Reference thereto will be made later in this opinion. There is nothing in the record to show any action on the part of the court to indicate any personal prejudice against the defendant. He was given the minimum sentence provided by the statute.

On the same day, March 27, 1940, defendant filed his motion to suppress, with a copy of the affidavit and search warrant attached thereto, and on the same day the same was overruled by the court.. No evidence was presented by defendant on tbe motion to suppress. The case on the same day, March 27, 1940, came on regularly for trial, having been set for that day, and was tried before a jury with the result that defendant was convicted as above stated. Defendant Jack Young was given a severance and he alone was tried and has appealed to this court.

The statute which prescribes the procedure for the disqualification of trial judges in this state is Oklahoma Statutes 1981, section 2915, O. S. A. Title 22, § 575, and is as follows:

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

This statute has often been construed by this court in criminal cases and by the Supreme Court in civil cases. The following cases are cited. Pruitt v. State, 62 Okla. Cr. 38, 70 P. 2d 129; Fisk v. Venable, 61 Okla. Cr. 360, 68 P. 2d 425; Castleberry v. Jones, 68 Okla. Cr. 414, 99 P. 2d 174; Lee v. State, 66 Okla. Cr. 351, 92 P. 2d 591; Ingles v. McMillan, 5 Okla. Cr. 130, 113 P. 998, 45 L.R.A., N.S., 511; Ex parte Hudson, 3 Okla. Cr. 393, 106 P. 540, 107 P. 735; Lewis v. Russell, 4 Okla. Cr. 129, 111 P. 818; Yeargain v. Venable, 65 Okla. Cr. 225, 84 P. 2d 812; Johnson v. Wells, 5 Okla. Cr. 599, 115 P. 375; Saddler v. Crump, 30 Okla. Cr. 157, 235 P. 263. In civil cases: Holloway v. Hall, 79 Okla. 163, 192 P. 219; Prowant v. Sealy, 77 Okla. 244, 187 P. 235; Fox v. Ziehme, 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820. These cases give fully the history of this statute, the rule that was in force in this state prior to. its passage, and the rule to be followed since its adoption. It is unnecessary to quote from them fully, as they may be read by those who desire.

In the Pruitt Case, supra, Fisk v. Venable, supra, Ingles v. McMillan, supra, and Lewis, v. Bussell, supra, a review of all the cases is made, and in the Pruitt Case it was said [62 Okla. Cr. 38, 70 P. 2d 131] :

“From a reading of the above statute, it Avill be noted there Avas no attempt to comply Avith its terms. The statute requires the filing of a written application setting forth the facts upon which the claim is made that the judge is disqualified, and if the judge so finds, he should so certify. The opposite side is to be given reasonable notice. If the judge fails to make his certification Avithin three days before the cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do. It has been held by this court that the Criminal Court of Appeals is the proper court for such application in criminal cases. See Brown v. State, 6 Okla. Cr. 442, 119 P. 447.
“In the instant case, there was no attempt to give the notice required by the statute. The application was not made to the trial court until the very day the case was set for trial, although the record shows that the son of the presiding judge Avithdrew as counsel in the case during the summer prior to the trial in November. The application was by dictating orally into the record, and at no time was application made to this court asking for a writ of mandamus.
“Prior to the passage of the above statute, Avhich was effective from June 10, 1909, the uncorroborated affidavit of the accused was all that was necessary to file, alleging the 'bias and prejudice of the presiding judge, and this, within itself operated to disqualify him. The truth of the affidavit, or the motive of the defendant in making, it could not be denied. A change of judge was imperative with the filing of the affidavit. With the coming of statehood, the courts found this statute very much abused. Dockets would he set and the affidavit would often be filed when the case was called fox* trial, and after witnesses had been subpoenaed and were in attendance on the court. It not only caused additional costs to. the county and continuance of cases, but it often delayed, obstructed, and finally defeated justice.”

The facts in the instant case are identical. Although this defendant was arrested on the 6th day of December, 1939, made bond on the 9th day of December, 1939, and his case was not set for trial until the 27th day of March, 1940, he did not at any time attempt to comply with the terms of the statute above quoted, but delayed until the very day his case was set for trial to- file the motion to disqualify the trial judge. No notice was given to the county attorney of the filing of the same three days prior to the time the case was set for trial, and after the same Avas overruled no attempt was made to file a mandamus action in this court as provided by the statute.

We have examined all the cases appealed to this court involving this question, and they have uniformly come on application for Avrit of mandamus and not by appeal. The cases above cited give the reason for the necessity of hearing this question prior to the time the case is set for tidal and in accordance with the terms of the statute, so there may be no unnecessary delay and extra expense to the county in the trial of criminal eases. In the case of Holloway v. Hall, 79 Okla. 163, 192 P. 219, 220, the Supreme Court of this state says:

“Since the adoption of sections 5812 and 5816, Rev. Laws 1910, 22 O. S. 1941, §§ 571, 575, it has been consistently held by this court that, where parties seeking to- disqualify a trial judge had knoAvledge of the grounds of the disqualification for more than three days prior to the trial, and did not avail themselves of the procedure prescribed by section 5816, supra, they cannot urge the disqualification on appeal. Prowant v. Sealy, 77 Okla. 244, 187 P. 235; Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820; Ingles v. McMillan, 5 Okla. Cr. 130, 113 P. 998, 45 L.R.A., N.S., 511; Ex parte Hudson, supra.”

Defendant in support of his contention relies upon the case of Castleberry v. Jones, 68 Okla. Cr. 414, 99 P. 2d 174. In that case the same judge presided as in the instant case. We first call attention to the fact that in that case an application was made for writ of mandamus and the statute above quoted was complied with in every respect. There was no attempt to raise the question on appeal, and under the same circumstances as in the instant case. It will be further noted that the facts in that case are very different from those here presented. There is no direct charge or averment of personal bias or prejudice by the trial judge against the defendant, hut he states that he does not believe that he can have a fair and impartial trial before the county judge because of such prejudice. It has often been held by this court and other courts that the mere fact that a court may have had an opinion as to the guilt or innocence of defendant would not be a sufficient reason to disqualify such judge.

In the case of Fisk v. Venable, supra [61 Okla. Cr. 360, 68 P. 2d 426], the court says:

“The constitutional provision which guarantees to every person charged with crime a trial without ‘prejudice’ in so far as it relates to the presiding judge does not include the opinion of the judge as to the guilt or innocence of the defendant; the prejudice contemplated means the presence of such a state of mind or feeling as might prevent him from giving, the defendant a. fair trial.”

Also, in the case of Saddler v. Crump, 30 Okla. Cr. 157, 235 P. 263, 264, it is said:

“The Constitution (article 2, § 6) guarantees to every person charged with an offense a trial without ‘prejudice.’ As applied to a, judge, this is properly construed to mean personal prejudice or bias on the part of the judge against the defendant. It does not mean that the judge may not have an opinion of the guilt or innocence of a defendant or may not be prejudiced against the crime with which he is charged but shall not entertain a personal prejudice against him. In order to disqualify, it must he shown as a matter of fact, and not as a conclusion, that the judge does entertain such personal prejudice. Lewis v. Russell, Judge, supra; State ex rel., etc., v. Lockridge, Judge, 6 Okla. Cr. 216, 118 P. 152, 45 L.R.A., N.S., 525, Ann. Cas. 1913C, 251; State v. Brown, Judge, 8 Okla. Cr. 40, 126 P. 245, Ann. Cas. 1914C, 394.”

After a careful consideration of the 'record, we are of the opinion that it is necessary for a defendant to comply with the statute by giving the notice prescribed therein, and if the court refuses to disqualify himself, then it is the duty of defendant to file in this court a petition for writ of mandamus to require him to so disqualify, as was held in the case of Brown v. State, 6 Okla. Cr. 442, 119 P. 447. We have examined the record and do not think the facts justify the court in disqualifying in this case. There was nothing in the trial of the case to show that the court in any way acted in a prejudicial manner against the defendant in the trial of this case. Defendant was given the minimum punishment provided by law.

It is next contended that the court erred in overruling the motion to suppress the search warrant and the evidence procured thereunder. As heretofore stated, no evidence was presented in support of the motion. Therefore, if the affidavit and search warrant are in substantial compliance with the statute, the truthfulness of said' affidavit and the facts therein set forth cannot be assailed upon the trial. Blair v. State, 55 Okla. Cr. 280, 29 P. 2d 998; Phillips v. State, 34 Okla. Cr. 52, 244 P. 451.

The affidavit is sworn to by the sheriff of Pittsburg* county. It states positively that intoxicating liquor: “ * * * is had and kept for the purpose of sale, barter, giving* away and otherwise furnishing the same; and that same is being sold, bartered, given away, and otherwise furnished in violation of the Laws of the State of Oklahoma, in the above named County and State, in and upon the following described premises * *

It then states the facts as follows:

“Affiant further states that the basis of this complaint and the facts upon which it is founded are as folio avs :
“Ethel Young who lives at this place is operating under the authority of a Retail Liquor Dealers Stamp issued by the U. S. Government and this place is a place of public resort. The affiant knows persons who have bought whisky there very recently.”

It has been held in the case of Ben Hudgens v. State, 74 Okla. Cr. 56, 122 P. 2d 815, that the allegation in an affidavit to procure a search warrant, that the party whose permises were described was operating under and was the owner of a federal internal revenue retail liquor dealer’s license, was a fact to be taken into consideration by the magistrate, together with the other facts stated therein. Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300.

As to the issue of whether or not there was probable cause for the issuance of the search Avarrant, the affidavit further stated that the place described Avas a place of public resort and further, “The affiant knows persons who have bought whisky there very recently.” It is claimed that, because the affidavit does not state the names of the parties who have bought the liquor, it is based upon information and belief. The statements in an affidavit for the issuance of a search warrant need not be as specific as the allegations in an information or indictment. We do not consider that it was necessary to allege the names of the parties who- had bought whisky. If a hearing had been had on the motion defendant could have made inquiry of the party wlm made the affidavit and thus obtain the name so that he might meet this evidence at the trial if the same was offered in evidence.

We have carefully examined the cases cited from this court, and a review of them would unduly lengthen the opinion in this case. The facts in those cases in most instances are entirely different from the facts in this case. Many of these decisions have been reviewed in the case of Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162, and Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 187. See, also, Dobbs v. State, 39 Okla. Cr. 376, 265 P. 658; Rhodes v. State, 40 Okla. Cr. 124, 267 P. 490; Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300; Gransbury v. State, 64 Okla. Cr. 423, 82 P. 2d 240.

The last contention of defendant is that the evidence is insufficient to sustain the verdict of the jury and the judgment of the court. This is largely based upon the fact of the small amount of liquor found in the attic of defendant’s home, the same being one pint and six half-pints. Defendant offered no evidence. His contention in his brief is that section 2625, O. S. 1931, O. S. A. Title 37, § 32, which is commonly known as ‘the “gallon statute”, has application to this case. It may be stated that this statute is no' longer in force and effect, as will be seen 'by the recent decisions of this court in Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671; Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757; Whitwell v. State, 72 Okla. Cr. 192, 114 P. 2d 489. Defendant was charged and convicted under chapter 158, sec. 3, Session Laws 1933; O. S. A. Title 37, § 82, which provides:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors * * * whether medicated or not, which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight and which is capable of being used as a beverage * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

The instructions given by the court in the instant case were clearly under the above section, and section 2625, O. S. 1931, O. S. A. Title 37, § 32, has no application.

We are therefore of the opinion that the judgment and sentence of the county court, of Pittsburg, county should be affirmed, and it is so ordered.

JONES, J., concurs. DOYLE, J., concurs in conclusion.


text:
    Ex parte A. B. C. DAVIS.
    No. A-10157.
    Feb. 25, 1942.
    (123 P. 2d 300.)

      A. B. C. Davis, in pro. per.
    Mac Q'. Williamson, Atty. Gen., for respondent.
   DOYLE, J.

Petitioner, A. B. C. Davis, filed his application for a writ of habeas corpus in this court by mail, wherein it is alleged that he is unlawfully imprisoned and detained in the State Penitentiary at McAlester, by respondent, Fred Hunt, warden, under a commitment issued out of the district court of Oklahoma county, upon a judgment rendered in said court upon a verdict finding said petitioner guilty of the crime of murder.

The facts alleged in said petition are almost identical with the facts alleged in a petition by petitioner heretofore presented to this court, and which was denied. Ex parte A. B. C. Davis, 68 Okla. Cr. 29, 95 P. 2d 915. See, also, Ex parte A. B. C. Davis, 46 Okla. Cr. 117, 281 P. 1116; Ex parte A. B. C. Davis, 55 Okla. Cr. 380, 31 P. 2d 623.

A demurrer to the petition and motion to dismiss was interposed on behalf of the respondent.

Generally speaking, where an application for writ of habeas corpus has been denied, this court will not ordinarily entertain a subsequent application for a writ based on the same grounds and the same facts, or any other grounds or facts existing when the first application was made, whether presented then or not.

For the reasons stated, the demurrer to the petition is sustained and the cause is dismissed.

BAREFOOT, P. J., and JONES, J., concur.


author: PER CURIAM.

text:
    IVA ESTES v. STATE.
    No. A-10073.
    Feb. 25, 1942.
    (123 P. 2d 288.)
    Laynie W. Harrod, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   PER CURIAM.

Defendant, Iva Estes, was charged in the court of common pleas of Oklahoma county with the crime of maintaining and operating, a public nuisance, was tried before a jury, found guilty, and punishment fixed by the court at a fine of $50 and 30 days’ imprisonment in the county jail, and she has appealed to this court.

The Attorney General has filed a motion to dismiss this appeal for the reason that the same was not filed within a period of 120 days from the date of judgment. An examination of the record discloses that the judgment and sentence was rendered on the 15th day of January, 1941, and the case-made with petition in error attached was not filed until May 17, 1941, 122 days after the judgment rendered in the court of common pleas of Okla-liorna county. Defendant has therefore failed to' comply with the provisions of Oklahoma Statutes 1931, section 3192, O. S. A. Title 22, § 1054, which is as follows:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

It has been uniformly held that, in order to give this court jurisdiction, the appeal as prescribed by the section above quoted must be filed with the clerk of this court within the time which an appeal may be taken, and, where an appeal is not perfected 'by filing in this court a petition in error with case-made attached, or a transcript of the record, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Newton v. State, 38 Okla. Cr. 217, 260 P. 84; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95.

For the reason above stated, the motion to- dismiss the appeal should be sustained, and it is so ordered.