text:
    L. L. WHITE v. STATE.
    No. A-7451.
    Opinion Filed July 5, 1930.
    (290 Pac. 197.)
    Robert H. Warren, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of robbery with firearms, and was sentenced to serve a term of 15 years. The defendant was jointly charged with one Tom Carpenter of the robbery of Foster John, W. H. Lions, and W. P. Tucker, and the taking from them of several items of personal property. A severance was had and defendant was tried alone. The testimony for the state discloses that at the time charged the three persons named were in an automobile and that defendant and his companion with a pistol held up the party and committed the robbery. The judgment was entered December 22, 1928; the appeal was lodged in this court June 28, 1929, more than six monhs from the date the judgment was rendered. Section 2808,- Comp. St. 1921, in part reads:

“ * * In felony cases the appeal must be taken within six months after the judgment is rendered. * * * ”

The time for appeal is fixed by statute. This court is without power to extend the time for appeal, and when, as in this case, the appeal is filed after the expiration of the six month period, this court does not acquire jurisdiction but must dismiss the appeal. Criner v. State, 37 Okla. Cr. 313, 258 Pac. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 Pac. 181; Peyton v. State, 41 Okla. Cr. 186, 270 Pac. 860.

For the reason assigned, the attempted appeal is dismissed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    STATE v. ROY HORNER.
    No. A-7761.
    Opinion Filed July 5, 1930.
    (290 Pac. 197.)
    W. L. Coffey and E. E. Hanson, Asst. Co. Attys., for the State.
    N. J. Hopping and Joe W. Simpson, for defendant in error.
   EDWARDS, P. J.

This is an appeal by the state upon a reserved question of law. An information was filed in the court of common pleas of Tulsa county charging defendant with a violation of the Motor Vehicle Law, chapter 16, Session Laws 1923, in which information it is alleged in substance that defendant operated a motor vehicle on the highways of Tulsa county in a reckless and imprudent manner, endangering pedestrains and property, etc. Defendant interposed a demurrer which was sustained. This appeal is from the order sustaining the demurrer.

The contention is that the act of 1923 is repealed by chapter 43, Session Laws 1929. Section 2, c. 16, Laws 1923, being that part of the act which defines an offense, is as follows:

“Sec. 2. Any person or persons operating or driving, or propelling any vehicle as set out and designated in section 1, of this act, upon said highways shall operate, drive or propel same in a careful and prudent manner, and at a rate of speed not greater than is reasonable under the existing circumstances, and having due regard to the traffic and use of the highway, and having due regard for the safety of pedestrians or property, and drivers or operators of other vehicles, whether such vehicles are propelled by muscular power, electricity, gas, gasoline or steam; no person or persons shall operate, propel or drive a motor vehicle as defined in section 1, of this act, on any highway at such rate of speed as to endanger the life or limb of any other person or persons, or the safety of any property, and it shall be unlawful to operate, propel or drive such motor vehicle as defined in section 1, of this act, upon any highway within the state of Oklahoma at a rate of speed in excess of 35 miles an hour; provided, further, no person or persons shall operate, propel or drive any motor vehicle as provided for in section 1, of this act, in any city, town or village or at the intersection of the street, alley, highway or in approaching any electric or steam railway crossing at grade, or in approaching or going around corners or curves in said street, alley or highway, where the operator, driver or propellor of said motor vehicle has not an unobstructed view of at least one hundred and 50 feet before the approach of such street, alley or highway, curve or corner, at a greater rate of speed than fifteen miles per hour; provided, further, that any person or persons violating any provision of section 2 of this act, shall be guilty of a misdemeanor for the first offense and shall be fined not less than $25, nor more than $100, or imprisonment in the county jail for not less than ten nor more than 30 days, or by both such fine and imprisonment, and for the second offense shall be fined not less than $100, nor more than $1,000, or shall be imprisoned in the county jail for a period of time of not less than 30 days, nor more than six months, or by both such fine and imprisonment.”

Chapter 43, Sess. Laws 1929, which it is contended repeals the foregoing act, is entitled:

“An Act amending section 2, chapter 16, Oklahoma Session Laws of 1923, relating to the maximum rate of speed a motor vehicle may be driven upon the highways in the state of Oklahoma, fixing the penalty for violation thereof, repealing all acts or parts of acts in conflict herewith, and declaring an emergency.”

The act of 1929, omitting the emergency section, reads:

“Section 1. That section 2, chapter 16, Oklahoma Session Laws of 1923, be and the same is hereby amended to read as follows:
“ ‘See. 2. It shall be unlawful for any person, or persons, to operate, propel or drive a motor vehicle upon any public highway of the state of Oklahoma at a speed in excess of 45 miles an hour.
“ Any person, or persons, violating any provisions of this act shall be guilty of a misdemeanor and shall be fined not less than $10 and not more than $100, or imprisoned in the county jail for not less than ten days, or more than thirty days, or by both such fine and imprisonment. Provided, it shall be unlawful for any arresting officer or for any judicial officer before whom the person arrested for violating the provisions of this act is tried, to participate in or receive any portion of the fine or fees collected on account of the conviction of any such person.’
“Repealing Clause:
“Sec. 2. All acts or parts of acts in conflict with the provisions of this act are hereby repealed.”

It is admitted that if the act of 1923 is not repealed by the act of 1929, the information is valid and the ruling of the court sustaining the demurrer erroneous, but if the act of 1929 repeals the act of 1928, then there is no statute defining the offense sought to be charged and the demurrer was properly sustained and the case should be affirmed.

Article 5, § 57, of the state Constitution, so far as pertinent here, provides:

“Every act of the legislature shall embrace but one subject, which shall be clearly expressed in its title * * * and no law shall be * * * amended * * * by reference to its title only; but so much thereof as is * * * amended * * shall be re-enacted and published at length.”

The foregoing constitutional provision is mandatory. Two provisions of the Constitution may be said to be involved here. First, that part of article 5, § 57, which provides that every act of the Legislature shall embrace but one subject which shall be clearly expressed in the title. Second, that a law shall not be amended by reference to its title only, but so much as is amended shall be re-enacted and published at length.

The effect of our constitutional provision that the subject of an act shall be expressed in the title is to make the title a part of the act so that any provision which lies outside the title will be rejected as unconstitutional. Black, Interpretation of Laws, c. 6, § 76, p. 175. So an amending act should indicate clearly in its title the act amended and should set out its purpose generally. 36 Cyc. 1029, 2, F, Notes. The amendatory act of 1929 conforms to this requirement. The title has four participial clauses, disclosing that the act is:

First, an act amending section 2, c. 16, etc.

Second, an act relating to the maximum rate of speed, etc.

Third, an act fixing the penalty for violation thereof.

Fourth, an act repealing, etc.

The title is unusually full; it might have been sufficient to describe the act merely as amending section 2, c. 16, Sess. Laws 1923; but it went farther and described the act as amending section 2, c. 16; further described it as relating to the maximum rate of speed and as fixing a penalty for violation and as repealing conflicting law.

Considering then the second constitutional provision applicable, that is, that an amendatory act shall be reenacted and published at length, section 1 conforms to this requirement and provides that section 2, c. 16, of the Laws of 1923, is amended “to read as follows.”

It is argued by the state that it could not have been the intent of the Legislature to repeal the wholesome provisions of section 2 of the act of 1923, but that the Legislature must have intended to amend it only as to the maximum speed a motor vehicle might travel on the highway, citing several authorities from the courts of this state. We appreciate fully the force of the argument and should like to sustain the position taken, but there is no reasonable construction other than that section 2 of the act of 1929, as set out therein, takes the place of section 2 of the act of 1923, and that all of section 2 of the 1923 act, which is not re-enacted and set out in the act of 1929, is repealed. State ex rel. West, etc., v. McCafferty, etc., 25 Okla. 2, 105 Pac. 992, L. R. A. 1915A, 639. This repeal includes the provision defining the offense upon which the prosecution in this case was instituted. It follows that the trial court did not err in sustaining the demurrer.

The case is affirmed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


author: DAVENPORT, J.

text:
    JAMES WESLEY ARMSTRONG v. STATE.
    No. A-7374.
    Opinion Filed July 5, 1930.
    Rehearing Denied July 19, 1930.
    (289 Pac. 1115.)
    Howe & Douglass, for the plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder, was tried and convicted of manslaughter in the second degree, and sentenced to serve a term of two years in the state penitentiary; from which judgment and sentence the defendant has appealed.

The substance of the testimony on behalf of the state is that on the night of the homicide, the 8th of July, 1928, Ernest Ball, Turner Lawrence, Buster King, and the deceased attended a supper and dance at the home of the defendant’s father, and remained there until some time between one o’clock a. m., and daylight, when they left the home of the defendant’s father on their way to their respective homes, and got within a half mile of the home of the deceased when Buster King asked them to stop and talk a while; they got off their horses and turned them loose and sat down on the north side of the road, which at that point ran east and west, and while sitting there Ernest Ball, Turner Lawrence, and John Maynard were struck by an automobile.

The testimony further shows the defendant, accompanied by Ruth Crooks, Sammy Fulsom, and Bertha Crooks, left the place where the dance was going on after one o’clock a. m., drove several miles beyond the place where the killing took place, turned their car and started back toward the home of the Crooks girls; Ruth Crooks rode in Sammy Fulsom’s lap during their journey, and Bertha sat between the defendant, who was driving the car, and Sammy Fulsom; Bertha Crooks had never driven a car, and the defendant was trying to teach her to drive; the defendant had been helping her keep the car in the road and stopped the car when necessary; the defendant knew Bertha Crooks did not know how to handle the car; that as they returned from their drive to take the Crooks girls home they came to* where the boys were, and ran the car over the body of John Maynard, crushing him, from which injuries he died early Sunday morning.

There was some testimony to show that before they struck the boys they had struck a horse near where they ran over the boys; one of the Crooks girls says the car struck something and she fell out of the car, that she got up and caught up with the car and got back in the car without it stopping, and she did not see what the ear struck; the defendant took the girls home and went on home and went to bed. The defendant admits attending the dance, and leaving about one o’clock and driving several miles beyond where the deceased was injured; he admits he was teaching Bertha Crooks to drive the car, that she did not know how to handle the car; the defendant says at the time of the accident he was asleep and had been asleep for some time before the car hit the boys. Bertha and Ruth Crooks both testify that the defendant was asleep at the time the car struck the deceased, that they drove on near their home, when they got out and went back to the place where the accident occurred; the Crooks girls saying the defendant and Sammy Fulsom drove the car on away from the place where they got out.

The testimony further shows that at the time the defendant was arrested by the officers he was leaving his home and appeared to be in a drunken or dazed condition. The testimony in several instances is conflicting, but on the main points as to their being at the dance, and starting with the girls home in the car, and as to the deceased and his companions attending the dance, and sitting on the road, having gotten off their horses on the highway, and the car driven by the defendant or one of the girls, who- the proof shows did not know how to drive the car, striking the boys and injuring the deceased, John Maynard, from the effects of which he died a short while afterwards, there is little conflict.

The defendant has assigned fourteen errors alleged to have been committed by the court in the trial of his case. The first assignment of error we will discuss is the third assignment of the defendant; that the court committed reversible error in overruling the demurrer of the defendant to the information. The first paragraph of the demurrer is directed at the first count in the information, and it is argued that the same does not state facts sufficient.

Section 2558, C. O. S. 1921, provides:

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.” Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974; Snoddy v. State, 30 Okla. Cr. 235, 235 Pac. 248.

This court has repeatedly held that the indictment or information, where it contains more than one count, must show upon its face that the separate counts are all based upon one and the same transaction. An examination of the information in this case clearly shows that both counts are based upon one and the same transaction. Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554.

Section 2563, C. O. S. 1921, is as follows:

“The indictment or information is sufficient if it can be understood therefrom:
“First. That it is entitled in a court having authority to receive it, though the name of the court is not stated.
“Second. That it was found by a grand jury or presented by the county attorney of the county in which the court was held.
“Third. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is unknown.
“Fourth. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.
“Fifth. That the offense was committed at some time prior to the time of filing the indictment or information.
“Sixth. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“Seventh. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

Section 2564, C. O. S. 1921, is as follows:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

After a careful examination of the information in this case, we hold that the information stated facts sufficient to apprise the defendant of the charge against him, and that he was not deprived of his substantial right by failure of the information to advise him of the charge he was expected to meet. The court did not err in overruling the demurrer of the defendant to the information.

It is argued by the defendant that the facts proven in this case are not sufficient to sustain the proof of negligence, if any, and that the proof never arose to such a degree as to amount to culpable negligence. The testimony in this case shows that the defendant was drinking the night of the dance and left the dance in company with the Crooks girls and Sammy Fulsom; that he knew Bertha Crooks did not know how to manage and drive the car; that they were on a public highway where pedestrians had a right to travel; that there were four parties riding in the one seat of the car, one of the girls in the lap of Sammy Fulsom and the other sitting in the seat; this was a crowded condition of the car; that the defendant was fully aware of the crowded condition of the car, and knew the girl attempting to drive the car was not familiar with driving and could not manage or handle the car. That the defendant had gone to. sleep or had become stupid to a degree that he was not conscious as to what was going on around him; that he contributed to the accident by his carelessness and negligence in permitting the girl to try to handle the car when he knew that she could not do so.

The conflict in the testimony was a question for the jury to decide, and the jury decided that against the theory of the defendant, and decided that the defendant was guilty of manslaughter in the second degree, and fixed his punishment at two years in the penitentiary. The jury are the sole judges of the witnesses and the weight they will give their testimony, and, where the testimony is conflicting, this court will not disturb the verdict of the jury.

We have examined with a great deal of care the instructions of the court, and, when considered together in their entirety, they correctly stated the law applicable to the facts in this case. The defendant was accorded a fair and impartial trial. The information stated facts sufficient to advise the defendant of the charge that he was expected to meet. Finding no errors of sufficient merit to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    BILLIE LEGG v. STATE.
    No. A-7429.
    Opinion Filed June 21, 1930.
    Rehearing Denied July 19, 1930.
    (289 Pac. 1110.)
    Kienzle & Hickok, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of maintaining a public nuisance by operating the Baltimore Hotel, said hotel being a place where spirituous, vinous, and malt liquors, which contain as much as one-half of 1 per cent, alcohol, measured by volume, and which is capable of being used as a beverage, is manufactured, sold, bartered, given away, and otherwise furnished, in violation of the prohibitory laws of the state, and was sentenced to pay a fine of $500 and costs and be imprisoned in the county jail of Pottawatomie county for a period of 90 days. From which judgment the defendant has appealed to this court.

The testimony shows that the defendant was running what was known as the Baltimore Hotel or rooming house, at 112% West Main street, in Shawnee, Okla.; that the officers went to the hotel with a search warrant and searched the premises; in the room where defendant lived, they found the defendant and three men; in the chair where the defendant was sitting they found a half-pint of whisky, and the defendant had in her bosom a half-pint of whisky; one of the men was intoxicated and unable to walk and had to be carried to jail.

The defendant admits she had the half-pint of whisky in her bosom, and said it was given her by some one, but did not give the name of the party. The defendant also testified that the men in her room were regular roomers she had in the hotel, or rooming house; she says she does not know where the half-pint of whisky found in the chair where she was sitting when the officers came in came from. No testimony was introduced to show any previous violation by the defendant, or that there had been any disturbance around the hotel. No testimony showing there had been any whisky manufactured, bartered, or sold at the defendant’s hotel or rooming house.

The defendant admitted on cross-examination that she had paid a fine in the city of Shawnee for violating a city ordinance. Two of the officers testified that the reputation of the defendant’s place for being a place where whisky might be bought and sold, and where people congregated, was bad.

The testimony in this case is sufficient to sustain a conviction of the crime charged against the defendant, but, in view of there being no testimony other than the one act of the defendant, it seems that the punishment inflicted is excessive. We believe that a sentence of 90 days in jail and a fine of $250 is sufficient for the crime committed by the defendant, as shown by the proof contained in the record. The judgment of 90 days imprisonment and a fine of $500 is modified to 90 days and a $250 fine, and, as modified, the judgment is affirmed.

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


text:
    MORDY DUKE v. STATE.
    No. A-7571.
    Opinion Filed July 19, 1930.
    (290 Pac. 318.)
    Claude A. Niles, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff: in error, hereinafter referred to as the defendant, ivas charged by information with possession of about one and one-half pints of intoxicating liquor, tO' wit, whisky, with the intent on the part of the defendant to sell, give away, transport, and otherwise unlawfully furnish to others; was convicted and sentenced to pay a fine of $200 and costs of prosecution, and be confined in the county jail for a term of 90 days. Prom which judgment and sentence the defendant has appealed.

The witnesses on behalf of the state testify they went to the rooming house of the defendant, on the 22d day of November, 1928, and found a pint and a half pint of whisky in room No. 1, near the center of the room in a chair where some blankets were piled; there was a second-hand store below the rooming, house, and the stairway to the rooming house went up on Ihe outside of the building.

This is, in substance, the testimony offered by the state. The defendant demurred to the evidence of the state and requested the court to advise the jury to return a verdict of not guilty in this case for the reason that the evidence is insufficient to sustain the charge in the information, and insufficient to prove a crime against the laws of the state. The demurrer was overruled and defendant duly excepted.

The defendant then testified in his own behalf and stated he occupied room No. 2, in the rooming house, and that there was no whisky in his room. Defendant did not know who was in room No. 1, where the officers claim they found the whisky, and if they had any whisky in room 1 he knew nothing about it.

Mrs. Susie Clark, who was employed to look after the rooms and keep them clean and keep the linen washed, testified she did not know anything about there being any whisky in the room. One or two other parties testified to being in business near this place, and they knew nothing about whisky being sold, if there was any sold, in or near the defendant’s rooming house.

The defendant assigns six errors alleged to have been committed by the trial court. The only error it is deemed necessary to consider is assignment No. 1, that said court erred in overruling plaintiff in error’s motion for a new trial. The first error assigned covers the questions raised by the other assignments.

In this case the defendant is charged with possession of one and one-half pints of whisky, with intent to sell, barter, give away, or otherwise furnish to others. The testimony is insufficient to sustain the judgment. For the reasons hereinabove stated, the judgment of the trial court is reversed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    MARSHALL BLACKWELL v. STATE.
    No. A-7485.
    Opinion Filed July 19, 1930.
    (290 Pac. 352.)
    Cress, Tebbe & Cress, for plaintiff in error.

      J. Berry King, Atty. Gen., for tbe State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience called the defendant, was by information charged with Floyd Bnrgell, Tom Bnrgell, George Griffith, and D. P. Owen, with unlawfully, willfully, wrongfully, and knowingly manufacturing intoxicating liquor, with the unlawful and willful intent on the part of the defendants to barter, sell, give away, and otherwise dispose of the same unlawfully, was separately tried and convicted, and sentenced to pay a fine of $150 and be imprisoned in the county jail for 30 days. From the sentence and judgment the defendant has appealed to this court.

The testimony on behalf of the state, in substance, is as follows:

H. H. Isham, sheriff of Noble county, stated:

“On the 9th day of January, 1929, Roy Hileman, Fred Yeager, and I went to a place eight miles northeast of Perry to search for a still; I arrived about 6:30 in the evening; Mr. Owen was on the comer of the porch; I searched the house and found a large still, barrels of mash, pressure tank, cooler, some whisky and coils; the still was warm, and under it was a gasoline burner and pressure tank; I remained in the house about twenty minutes, and left Deputy Hileman in charge of Mr. Owen, George Griffith, and the two Burgells, and went with Mr. Yeager to phone; I was gone about an hour, and when I returned I found Marshall Blackwell and Mr. Dronberger and his wife and daughter there; Mr. Blackwell was courteous enough to haul the whisky we found to town for me; I told Mr. Blackwell I would hold him because I found a pressure tank and burner, and some fruit jars in his car, which made it look like he was implicated.”

Roy Hileman testified, in substance, the same as Fred Yeager and H. H. Isham. Hileman further stated that Yeager and Isham left the house and he remained with the prisoners; that shortly after Yeager and Isham left Mr. Blackwell drove up in his car, and a short while thereafter Mr. Dronberger and his wife and baby came; “Mr. Blackwell had some groceries in some cartons in his car, and I told him I would have to hold him until the sheriff got back.”

At the close of the state’s testimony, the defendant moved for a directed verdict on the ground and for the reason that the evidence was wholly insufficient to show facts to connect the defendánt with the offense, or to show any connection on his part with the manufacture or possession of the liquor in question, or any of the stuff found by the officers, which motion was overruled, and defendant excepted. The defendant then moved the court to direct a verdict of acquittal, on the grounds and for the reason all the evidence obtained being obtained unlawfully by a search and seizure of the residence in the nighttime by the officers, which motion was overruled, and exceptions allowed.

The defendant called Tom Burgell, who stated that the still and liquor belonged to himself and D. P. Owen, that the defendant, Blackwell, was never in the stone house on the place where the raid was conducted before the night he was arrested; that “on the 8th of January, 1929, I was in Ponca City and purchased some groceries; I saw Blackwell there and asked him when he was going down to his place near the Casparis ranch, and he told me that night or the next morning, and I asked him if he would bring the stuff down to me; I did not tell Mr. Blackwell about the jars, pressure tank, or burner; I ■ told him there was some stuff I wished he would bring-down; I met Mr. Blackwell in Ponca City about noon; Mr. Blackwell had never hauled anything- for me before; I had known him for a couple of years, had never worked for him; I had been at the stone house with Mr. Owen two or three weeks before I got the still; I helped Mr. Owen with the chores; Mr. Griffith came to the stone house the night of the raid.”

Jesse- Borabaugh testified on behalf of the defendant that on January 8 and 9, 1929, and for some four months prior “I had worked for Mr. Blackwell on his 50-50 ranch, which is located about five miles southeast of.Marland; Mr. Blackwell went to Ponca City the morning of the 8th, leaving, about 9 o’clock and returning about 2 o’clock in the afternoon, and helped me fix fence that afternoon; he remained at home that evening and over night, and on January 9th he went to Ponca City about 11 o’clock in the morning and returned about 4 o’clock in the afternoon; on the evening of the 9th he said he was going to my father’s to see about renting the place to him; this place is located north of the Jake Casparis ranch; my father has this section of land leased from Mr. Blackwell, there is a hay meadow and 160 acres in cultivation.”

On cross-examination, witness stated he worked for Mr. Blackwell four months prior to the raid and was still working for him; “Mr. Blackwell went to Ponca City on the 9th of January, and came back about 4 o’clock; he was driving a Ford; I did not look in the Ford; Mr. Blackwell remained at home until after supper and left, stating he was going to see my father about renting the place to him.”

The defendant testified in his own behalf that his home was five miles southeast of Marland on what is known as the 50-50 ranch; “I have some sheep, horses, and cattle on the ranch, and 150 acres in cultivation; on January 8, 1929, I saw Tom Burgell in Ponca City, and he asked me when I was going down to the Casparis place; Burgell told me he was living down there, and I told him I would go down in a day or two, and he asked me to bring some groceries down for him, and I told him I would; he said the groceries would be at Art Gibbs’ grocery at the end of the pavement on the Ponca City and White Eagle road; I had never been to this stone house where this still was located before the night of January 9, 1929; I stopped at the Gibbs Grocery, and Arthur Gibbs put some things in the back of my car and I went home; after supper I went down to see Mr. Rorabaugh; I had been negotiating with him about renting the place, and I wanted to tell him he could have the place; Mr. Rorabaugh was living on the adjoining place to the place on which this stone house was located; I stopped to leave the groceries, and, as I walked into the stone house, Mr. Hileman said I was arrested; I did not know a still was there, knew nothing about the place; I did not know Mr. Burgell was making whisky; I did not know Mr. Owen before that night; I knew Tom Burgell and Tom’s father; I had Jmown Tom for about two years.”

On cross-examination, the defendant stated: “Tom Burgell has never worked for me; there was no one with Tom on the 8th of January when I saw him in Ponca City; I talked with him about five minutes; Tom told me he had some groceries he wished I would bring down for him; I did not know what kind of groceries; I paid no attention to what Art Gibbs, the proprietor of the grocery store, put in my car; my Ford coupe has a back end to it, and Mr. Gibbs put several things in the car; it is not unusual for farmers to have pressure tanks to use on their stove; Mr. Tiger, who works for the 101 ranch, and Emmit Soldani uses one; hardware stores both in Mar-land and Ponca City sell stoves you can attach these pressure tanks to; I knew nothing about there being any mash in the stone house where Owen and Burgell was living; I was to go by there and leave the groceries and go on to my place where Mr. Rorabaugh lived; when I arrived there Mr. Hileman told me I was under arrest and I told him all right; that was about 30 minutes before the sheriff came; Mr. Isham asked me what business I had, and I told him I did not have any business there; then the sheriff said he would have to take me to jail.”

The defendant has assigned 22 errors alleged to have been committed by the trial court. The view we take of this record it is only necessary to consider the 17th and 18th assignments of error, which are as follows:

“17. That the verdict is contrary to law.
“18. That the verdict is contrary to the evidence.”

The defendant insists that the evidence of the state is wholly insufficient to sustain the judgment and sentence against him, for the reason that there is no testimony connecting the defendant with the manufacture of any whisky. The testimony on behalf of the state shows that the sheriff and his deputies went to the house where D. P. Owen and Tom Burgell and others were, and searched the same and found whisky, a still and other property; that, after the search had been made, the sheriff and one of his deputies had gone, as they say, to phone; the defendant, Marshall Blackwell, drove up, as shown by the record, for the purpose of delivering some things he had brought from Ponca City for Tom Burgell; the defendant was not the only one who came to the house after the search was made, but the Dronberger family also came and were held by the officers for a time; the officers said the reason they held the defendant was they found some groceries and other things in the defendant’s car. The record discloses that D. P. Owen and Tom Burgell, who was jointly charged with this defendant, testified that the defendant had nothing to do with the properties found by the officers, had no interest in them, and had no knowledge a still was in operation; that defendant came to deliver the things Tom Burgell asked him to bring out from Ponca City. Defendant accounts for his whereabouts on the 8th and 9th, previous to the search on the 9th, and the defendant tells where he was and how it came that he agreed to bring the things down to Mr. Burgell when he went down to Mr. Eorabaugh’s to see about renting a farm to him.

The state offered no testimony to show that the defendant had anything to do with the making of the whisky it is claimed was found at the house, or to show he had anything to do with the manufacture of the whisky, or the still, or the premises on which the still was located. The only evidence upon behalf of the state against the defendant is the fact that he had some stuff in his car that he brought down to the place that might be used in the manufacture of whisky. This is a circumstance, if unexplained, would be sufficient to create a suspicion of the defendant’s guilt, or at least of the knowledge of the defendant that the parties at the house were engaged in the manufacture of whisky, but the reason for the defendant having these things in his car is fully explained by Tom Burgell and the defendant, and the state offered no testimony to contradict the explanation made by Bur-gell and the defendant as to how it happened the defendant brought the things he had for Burgell to the place the officers searched. This court has often held that the questions of fact are for the jury, and, where the evidence, although conflicting, reasonably sustains the verdict and judgment, it will not be disturbed in this court for insufficiency. However, unless the evidence is such that the jury may reasonably and logically find the guilt of the defendant, a verdict will be set aside. La Grone v. State, 32 Okla. Cr. 45, 239 Pac. 938; Cowan v. State, 32 Okla. Cr. 149, 240 Pac. 660; Bailey v. State, 37 Okla. Cr. 317, 258 Pac. 358, 359; Jordan et al. v. State, 41 Okla. Cr. 193, 270 Pac. 863.

Upon a careful examination of all the evidence, we hold that the evidence is not sufficient to sustain the verdict of guilty, that the evidence falls far short of that certainty required to convict in criminal cases. Lunsford v. State, 38 Okla. Cr. 233, 260 Pac. 514; Tipton v. State, 38 Okla. Cr. 74, 258 Pac. 1053.

For the reasons herein stated, the case is reversed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    BIRL McLEMORE v. STATE.
    No. A-7456.
    Opinion Filed July 19, 1930.
    (290 Pac. 349.)

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

The plaintiff in error, hereinafter called defendant, was convicted of adultery in the district court of Washita county, and was sentenced to serve a term of three years in the penitentiary.

The evidence for the state is that defendant became enamoured with the wife of his nephew, and that they committed an act of sexual intercourse about July 15th, and on August 8th defendant took her in his car and drove with her to West Texas, then returned Avith her to Chickasha,. and there gave her money to go to her father at Stratford. He returned to his home on August 11th. The principal witness for the state is Mabel McLemore, the female with whom the offense Avas committed. She testified that at the time she left with defendant on August 8th, they committed an act of sexual intercourse near Cordell and another before reaching Sayre. Defendant admits he took Mabel McLemore in his car, but it was on the night of August 9th; that he did not go west to Cordell, Sayre, and Texas, as she testified, but that he took her to Chickasha, gave her money to go to Stratford and returned home, reaching there on the morning of the 11th.

It is argued briefly that the evidence is insufficient to sustain the judgment. Without setting out the evidence and circumstances supporting the testimony of the principal witness, we find there is ample evidence to sustain the judgment.

The main contention urged is that the court committed fundamental error in not requiring the state to elect the act relied upon for a conviction, citing State v. Hilberg, 22 Utah, 27, 61 Pac. 215; State v. Thompson, 31 Utah, 228, 87 Pac. 709; State v. Moss, 73 Wash. 430, 131 Pac. 1132; Timmons v. State, 44 Okla. Cr. 200, 280 Pac. 314. We are not unmindful of the rule announced in the Timmons Case, supra, and other cases. Adultery, like rape, is not a continuous offense. The court by instruction 8 told the jury that evidence of other acts of intercourse must be considered by them only for the purpose of throwing light on the question of guilt or innocence and as tending to show the intention and disposition of the parties, and for no other purpose, and further instructed that if they find beyond a reasonable doubt that' the offense was committed in Washita county about the date charged, they should find the defendant guilty, but if they have a reasonable doubt they should acquit defendant. No exception was taken to any of the instructions. No request for an election was made at the time of trial nor in the motion for new trial. The rule requiring an election, where different acts which might be an offense are proven, is to prevent the jury from basing a conviction on more than one act and to compel the minds of the jurors to agree on guilt or innocence of one particular offense, and further to enable the accused to plead former jeopardy in case of an attempt to again prosecute.

The record before us clearly discloses that the state relied upon the act shown by the evidence to have been committed in Washita county on the night of August 8th. The evidence of this act with the instructions of the court are sufficiently definite to limit the verdict of the jury to this act and constitutes an election. There is no substantial merit in the appeal. Upon an examination of the entire record, however, we are of the opinion that justice requires that the judgment be modified by reducing it to confinement in the penitentiary for a term of two years, and as modified, the case is affirmed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


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    ED FRITZ v. STATE.
    No. A-7449.
    Opinion Filed June 21, 1930.
    Rehearing Denied July 19, 1930.
    (290 Pac. 193.)

      J. H. Long, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of willfully, unlawfully, and wrongfully pointing a deadly weapon, to wit, a pistol, at S. H. and D. M. Merchant, and was sentenced to pay a fine of f 50 and cost and he confined in the county jail for three months. Motion for new trial was filed, considered, and overruled, and defendant excepted, and by petition in error and case-made has appealed to this court.

The testimony on behalf of the state, in substance, is as follows: S. H. Merchant was poundmaster at Duncan, Okla.; on the 23d day of January, 1929, the morning of the difficulty, had taken up some stock of the defendant; after the stock had been empounded, the defendant drove down to Merchant’s home, and a controversy arose as to the amount the defendant should pay in order to have the stock turned over to him; the defendant returned home without the stock, but notified the pound-master he was going to take the stock; when the defendant returned, he was accompanied by his wife, followed by a nephew to the pound; the wife of the poundmaster and a stepson was at the home of the son of the pound-master, D. M. Merchant, across the street from the pound; as to just what took place at the pound the evidence is conflicting. The defendant had a revolver, and the evidence shows that when he drew the revolver the son of the poundmaster grabbed the defendant and held his arms down so he could not shoot; in the scuffle the gun was fired.; immediately following this shot, the nephew of the defendant came up, and while the difficulty was in progress the defendant told him to shoot the poundmaster and his son between the eyes; this nephew was about eighteen years of age; he took the gun from his uncle and held it on the poundmaster; and the wife of the pound-master got between them to prevent him from shooting, and later they were separated.

The defendant, the wife of the defendant, and the nephew contradicted the statements of the state witnesses and insist that S. H. Merchant took a gun down to the pound with him, and that he had a hammer in his hand when he got down to where the defendant, his wife, and his nephew were. While the testimony is conflicting, there is no dispute that the defendant went to the pound where the prosecuting witness Merchant was, carrying a pistol; that he drew the pistol and had it in his hand when the son of the poundmaster grabbed him around the arms and swung him around and the gun was discharged; the nephew then took the gun and held it; the testimony is conflicting as to whether the defendant told him to shoot the prosecuting witness and his son, or what was said by the defendant after the nephew got hold of the pistol.

The defendant has assigned several errors alleged to have been committed by the trial court, the first being the court erred in overruling his motion for a new trial. The seventh, that the court erred in giving instructions 5, 6, 7, 8, and 9, over the objection of the defendant. The eighth, that the court erred in refusing to give requested instructions Nos. 1, 2, 3, 4, and 5. Tenth, that the verdict is not sustained by the evidence and is contrary to the law and the court’s instructions. The defendant also complains that the court erred in overruling his demurrer to the information.

An examination of the information discloses that it stated the offense charged against the defendant with sufficient clearness to advise the defendant of the charge against him, and the court did- not err in overruling the demurrer.

The defendant also- complains that he was charged jointly with Darral Fritz with pointing a gun, and that the state should have sustained his motion requiring the state to elect which one he would rely upon as being the party pointing the gun, whether Ed Fritz or Darral Fritz, and also at which of the alleged witnesses it was pointed, S. H. Merchant or D. M. Merchant. This motion was overruled, and defendant excepted. It was not error for the court to overrule this motion, as the testimony discloses that the two defendants were acting together.

Section 1521, Comp. St. 1921, is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor and whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are principals.”

The testimony in this case tends to show that the acts of the nephew were under the direction of the defendant, and that the defendant in this case by his action and co-operation with the nephew was the principal, and directed his nephew to shoot the prosecuting witness and his son between the eyes.

In Woody v. State, 10 Okla. Cr. 322, 136 Pac. 430, 431, 49 L. R A. (N. S.) 479, this court held that:

“Where a man and a woman are jointly prosecuted for adultery, one of the defendants may be acquitted and the other may be lawfully convicted.”

The proof in this case tends to show that the defendant was acting jointly with his nephew, Darral Fritz, and that he was the principal in the difficulty, and the acquittal of Darral Fritz did not operate as an acquittal of the defendant. In the trial of the defendant it was immaterial whether the boy, Darral Fritz, had been tried and convicted or acquitted, as it had nothing to do with the trial of this defendant.

The defendant urged that the remarks of the county attorney were prejudicial to his rights. The record in this case discloses that the remarks of the county attorney were not objected to by the defendant and the objectionable part pointed out by the defendant, and a request made to the court that the jury be instructed not to consider the remarks. This court has repeatedly held that unless the defendant objected to the remarks of the county attorney and asked the court to instruct the jury not to consider the same, there is nothing before this court to be passed upon. Newcomb v. State, 23 Okla. Cr. 173, 213 Pac. 900; Wilson v. State, 24 Okla. Cr. 332, 217 Pac. 885.

We have carefully examined the information in this case and the testimony of both the state and the defendant, and have carefully considered the instructions of the court, and are of the opinion that the defendant had a fair and impartial trial; that the evidence is sufficient to support the verdict of the jury; and that the court substantially instructed the jury as to the law applicable to the facts in this case.

Finding no errors in the record of sufficient merit to warrant a reversal, the judgment is affirmed.

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


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    ELMER PENDLEY v. STATE.
    No. A-7479.
    Opinion Filed July 19, 1930.
    (290 Pac. 340.)
    Roy White, for plaintiff in error.
    J. Berry King, Atty. G-en., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was charged with selling or furnishing intoxicating liquor, was tried and convicted, and his punishment fixed at a fine of $50 and 30 days in jail, from which judgment the defendant has appealed.

The testimony on behalf of the state, in substance, shows that Roy and Floyd Sloan got in the car of the defendant in the town of Hanna and drove down near a place known as Winston’s gin; that Arthur Kirkpatrick, an officer, came in sight, and the defendant drove back to the town of Hanna, and the two Sloan boys got out and started toward the depot; Kirkpatrick searched them and found two eight-ounce bottles of whisky.

The testimony further shows that the officer told the boys if they would tell the facts and make an affidavit as to the party from whom they secured the whisky he would turn them loose. The officer then arrested the defendant for furnishing or selling the whisky to the Sloan boys. Both the boys testifying they got the whisky from the defendant, and that the defendant was pouring it in the bottles when the officer, Kirkpatrick, came in sight.

The defendant denies furnishing the boys the whisky or having anything to do with it, but states he drove the boys down to the Winston gin, and they asked him to wait a little while for them, and they came back with the whisky. The conflict in the testimony between the Sloan boys and the defendant was a question for the jury to determine, and the jury decided that question in favor of the state.

The fifth assignment of error of the defendant is that the court erred in overruling his motion for a new trial. No authorities are cited in defendant’s brief to sustain this proposition. After a careful reading and study of the evidence, we hold that there was sufficient evidence to warrant the jury in returning a verdict of guilty. Where there is a conflict in the testimony, this court will not disturb the verdict on the ground of the insufficiency of the evidence.

There are other errors discussed, but they are not sufficient to require a reversal. Finding no errors in the record of sufficient merit to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    JOHN WALTON v. STATE.
    No. A-7378.
    Opinion Filed July 19, 1930.
    (290 Pac. 341.)
    M. W. Gross, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of burglary in the second degree, and his punishment fixed at two years in the state penitentiary; from which judgment the defendant has appealed to this court.

No brief has been filed in support of the eight errors assigned by the defendant, alleged to have been committed by the trial court, and no appearance made for oral argument. We have carefully read the record and find no fundamental or prejudicial errors sufficient to reverse the case. The defendant having failed to file a brief, or have any one appear to argue the case for him, it is presumed he has abandoned his appeal.

The judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    JESS POOL v. STATE.
    No. A-7470.
    Opinion Filed July 19, 1930.
    (290 Pac. 342.)
    Carlton & Tankersley, for plaintiff: in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of obtaining one car of hay of the value of $106.44, by means of and by the use of one certain false and bogus check, and was sentenced to pay a fine of $200 and be imprisoned in the penitentiary at McAlester for two' years, from which judgment the defendant has appealed to this court.

The petition in error and case-made was filed in this court July 19, 1929. No brief has been filed in support of the assignment of errors, and no appearance made for oral argument. The record has been carefully read, and no fundamental or prejudicial errors appear therein sufficient to reverse the case. The defendant having failed to file a brief in support of his assignment of errors, or have anyone appear to argue the case for him, this court will presume that the appeal has been abandoned.

The judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    THOMAS A. BAYNE v. STATE.
    No. A-7086.
    Opinion Filed July 19, 1930.
    (290 Pac. 342.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the sale of two pints of intoxicating liquor to Grady Lancaster, on the 29th day of December, 1927; was tried, convicted, and sentenced to pay a fine of $200 and costs and be confined in the county jail for a period of 30 days. Prom which judgment the defendant by petition in error and case-made attached has appealed to this court.

The defendant for his defense in this case pleads former jeopardy, that he had been tried in the district court of Payne county, on the same charge, and a verdict of not guilty rendered. An examination of the record discloses that in case No. 1466, State of Oklahoma v. Thomas A. Bayne, a second amended information charged the defendant on the 9th day of April, 1927, with the crime of possession of spirituous liquor, and that on said date he entered Ms plea of guilty and was sentenced by the court to serve 30 days in jail and pay a fine of $100, and that thereafter, to wit, on the 29th day of December, 1927, the said Thomas A. Bayne did then and there willfully, knowingly, and feloniously sell two pints of spirituous liquor for the sum of $3. The information in this case, which was No. 5044, State of Oklahoma v. Thomas A. Bayne, in the county court of Payne county, charged the defendant with selling to Grady Lancaster, on the 29th day of December, 1927, two pints of spirituous liquor for $3. The date of the alleged offense in the district court and the date of the alleged offense in the county court are the same, the party to whom the sale is alleged to have been made and the amount of the whisky and price paid is the same in each information.

In the trial of this case the state called Grady Lancaster as a witness, who testified as follows:

“I bought from the defendant, Thomas A. Bayne, in Payne county, state of Oklahoma, on the 29th day of December, 1927, two pints of whisky, for which I paid him $3; this is the only whisky I bought from him on that date; I testified in the case of State of Oklahoma vs. Thomas A. Bayne, No. 1466, in the district court of Payne county, in which the defendant was on trial for the sale of this same whisky; this defendant was the same person that was on trial in that court, and he was on trial for this same sale of whisky. The two bottles of whisky I now hold is the whisky I bought from the defendant on the 29th day of December, 1927.”

The defendant introduced a transcript of the proceedings of the trial in the district court of Payne county, showing a trial and acquittal upon a charge of having sold to Grady Lancaster, on the 29th day of December, 1927, two pints of whisky for which Lancaster paid $3. The defendant’s plea of former jeopardy and acquittal was decided against him, and defendant by petition in error and case-made has appealed to this court.

The defendant has assigned two errors alleged to have been committed by the trial court. First, the court erred in overruling his motion for a new trial on his plea of former jeopardy. Second, the verdict of the jury and judgment of the court in favor of the state on his plea of former jeopardy is contrary to, and not sustained by, the evidence or the law.

An examination of the record in this case clearly shows that the defendant had been tried in the district upon a second amended information alleging a former conviction, and then charging that on the 29th day of December, 1927, this defendant sold two pints of whisky to Grady Lancaster for the sum of $3. In other words the record shows conclusively that the defendant was tried in the district court of Payne county, a court of competent jurisdiction, and that the information charged sufficient facts to give the district court jurisdiction of the offense charged, and was upon direction of the court acquitted. The testimony in this case clearly shows that this sale, for which the defendant was being tried in this case, was the same sale made to the same party, for the same price, as the testimony in the trial in the district court.

The plea of the defendant, of former jeopardy and acquittal, is sufficient under section 2619, C. O. S. 1921. While it is not a model plea, it states all that is necessary to bring to the attention of the court the question that he had been tried and acquitted of the same offense charged against him in the information in this case. Courtney v. State, 41 Okla. Cr. 30, 269 Pac. 1059.

Where the defendant pleads former jeopardy and acquittal, the burden is upon him to show that his former acquittal and former jeopardy is well founded, both in law and in fact. Harmon v. State, 43 Okla. Cr. 251, 278 Pac. 354.

The defendant’s plea of former jeopardy and acquittal . ivas well taken, and the court should have sustained the same. For the reasons herein stated, the judgment is reversed and remanded, with instructions to dismiss.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    FRED INGRAHAM v. STATE.
    No. A-7465.
    Opinion Filed July 19, 1930.
    (290 Pac. 344.)
    James W. Smith, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the crime of transporting "intoxicating liquors from one place in Kiowa county, state of Oklahoma, to another; was tried, convicted, and sentenced to pay a fine of $375 and to serve 120 days in the county jail. From the judgment the defendant has appealed.

The testimony on behalf of the state, in substance, shows that Sam Standefer, sheriff, and Luther Shelton, deputy sheriff, of Kiowa county, were driving in Hobart about 9 o’clock on the evening of January 31, 1929, and saw a car in front of them start away without the lights being turned on; after the car drove a short distance, the lights were turned on and continued to drive on one of the streets; and the officers pursued the car until they caught up with it. They claim the defendant was driving fast; when they caught up with him they stopped him and searched his car and arrested the defendant and another party who was in the car with him. They admit they had no warrant for the defendant’s arrest or to search his car.

When the defendant’s car was searched, they found whisky in the car. Before the trial began the defendant moved to suppress the testimony on the ground that all of the testimony was secured by an unlawful search and seizure, which motion was overruled, and the defendant saved an exception. The defendant during the trial objected to the testimony on behalf of the state, on the ground that it was secured by an unlawful search and seizure of his car, which objection was overruled and exceptions saved.

Several errors have been assigned by the defendant, but the only error deemed necessary to consider is the error the defendant claims was committed by the court refusing to sustain Ms motion to suppress the testimony and dismiss the proceedings for the reason that the officers had nd search warrant or warrant for his arrest at the time they searched his car, and that the court erred in overruling his demurrer to the evidence. There is no testimony showing that the officer had seen any whisky in defendant’s car, or had any knowledge there was whisky in it.

All the testimony tends to show that while the officers were driving along the streets of Hobart, they sighted a car and, without knowledge as to who was driving it, pursued it, and after it had been driven some distance ran in front of the car, stopped it, and searched the car and arrested the defendant. There is nothing to show when the defendant started through the streets of Hobart and the officers started to pursue him, they had any knowledge the defendant was violating any statute. An attempt was made to show the arrest was brought about because defendant was driving in a reckless manner or speeding, but the testimony fails to show at the time the officers pursued him he was committing any offense in the presence of the officers.

In Sullivan et al. v. State, 38 Okla. Cr. 200, 259 Pac. 654, in the first paragraph of the syllabus the court said:

“Where a conviction is based solely on evidence obtained by means of an unauthorized search and seizure, and admitted over the defendant’s objection, the conviction will be reversed as contrary to law and the evidence.”

In Huffman et al. v. State, 38 Okla. Cr. 307, 260 Pac. 782, in the syllabus the court said:

“In a prosecution for transporting intoxicating liquor, evidence obtained by search of defendant’s automobile without a search warrant, and not as an incident to a legal arrest, is inadmissible as in violation of article 2, § 30, State Constitution.” Thomas et al. v. State, 32 Okla. Cr. 57, 240 Pac. 133; Britton v. State, 34 Okla. Cr. 391, 246 Pac. 666.

From the record it does not appear there was any suspicion, when the sheriff and his deputy started to follow the car the defendant was driving that there was any violation of law; the defendant was driving along the street like any ordinary citizen; the stopping of his car on the street in the manner shown by the record was not a legal seizure, and the search of this car without a warrant, and where no legal arrest had been made, is in violation of article 2, § 30, Const., forbidding unreasonable searches. Skinner v. State, 44 Okla. Cr. 271, 280 Pac. 851.

It is fundamental that a citizen may not be stopped on mere suspicion, and his person or his car searched in order to procure evidence against him. Evidence procured in this manner is not admissible.

The case is reversed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


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    EARL EXLINE v. STATE.
    No. A-7472.
    Opinion Filed July 22, 1930.
    (290 Pac. 349.)
    Paul R. Haunstein, for plaintiff in error.

      J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county of having the illegal possession of narcotic drugs, and was sentenced to serve a term of three years in the state penitentiary.

The appeal was lodged in this court July 19, 1929. Thereafter defendant gave an appeal bond and was released from c onfinement. On July 15, 1930, the state filed a motion to dismiss the appeal, setting out that, since the appeal was lodged in this court, defendant has been convicted of a felony in the state of Missouri and sentenced to serve a term of two years in the state penitentiary of that state.

It is well settled by many decisions of this court that an appeal will not be considered where the defendant is a fugitive or beyond the jurisdiction of the court where he cannot be made to respond to any judgment or order which may be made in the case.

The case is dismissed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


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    BESSIE STEVENS et al. v. STATE.
    No. A-7357.
    Opinion Filed July 5, 1930.
    Rehearing Denied July 24, 1930.
    (289 Pac. 1113.)

      C. W. Myers, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of manufacturing whisky, and each sentenced to pay a fine of $250 and he confined in the county jail for a period of 90 days. Prom the judgment, the defendants appealed to this court.

The testimony on behalf of the state, in substance, shows that two witnesses, W. P. Lindsay and H. 0. Brown, went to defendants’ home and found on the cook stove of the home a little still which they claim was in operation, from which whisky was running; the defendant Joseph E. Stevens was not at home; the wife of the defendant and some children were there; they stated they searched the defendants’ home under and by virtue of a search warrant, hut there is nothing to show they had a search warrant, except the statement of the witnesses W. P. Lindsay and H. O. Brown. W. P. Lindsay stated he had a search warrant and that he gave a copy to Mrs. Stevens, and, when asked the following question, gave the following answer:

“Q. Did Brown have the search warrant or did you have the search warrant? A. I don’t know which one had the search warrant; we had one and she asked me what it was, and I think I read it to her.”

H. 0. Brown testified that Lindsay delivered the search warrant to her (meaning Mrs. Stevens); “I think Lindsay made the application and got the search warrant. I don’t know what court issued the search warrant.” He was then asked the following question and gave the following' answer:

“Q. Did you see Mr. Lindsay deliver a copy of the search warrant to Mrs. Stevens when he went in? A. No, sir, but it is always customary.”

Bessie Stevens testified that neither of the officers told her they had a search warrant, or delivered a copy of the warrant to her; both the defendants deny they had anything to do with the still or mash the officers found in the house, but claim that some other man who had been iiving there at the house brought the still there and set it up.

There is no conflict in the testimony that the still was found at the defendants’ home and that it was in operation; the only conflict being that the defendants had anything to do with it. The defendant Joseph E. Stevens was not at home, and shows to have been working at his trade as paper hanger at the time the officers claim to have found the still in his house; the defendant Bessie Stevens admits she knew the still was in the house; that she had objected to the man who was staying there keeping it.

The defendants contend that the state failed to prove venue. This contention is without merit, both the defendants testify they were living in Oklahoma City, giving the number of the street in Oklahoma City, which is in Oklahoma county, at the time their residence was searched.

The record discloses that the testimony of Bessie Stevens shows that the officers did not serve a copy of the search warrant on her when they came to her home, and the testimony of the two officers, while they state in one breath positively that they did serve a copy of the search warrant, the witness Lindsay is not sure that he did, and the witness Brown knows nothing about the warrant being served, as he was on the other side of the house when Lindsay went into the building. The defendant Joseph E. Stevens denies any knowledge of the still being in the house, and was at work at his trade when the raid on the house was made. Where the residence of an individual is searched by an officer, the officers should be definite and certain as to whether or not they did serve a search warrant- when they entered the home, and as to whether or not they served the search warrant as provided by law. In this case the witness Lindsay testified he served the warrant but can’t tell how or when he did it.

The defendants assign 11 errors alleged to have been committed by the trial court. It is urged by the defendants that the venue was not proven, that the state did not show the offense was committed in Oklahoma county, and therefore the judgment against them should be set aside on that ground. At the close of the state’s testimony the defendants demurred to the evidence of the state, on the ground that the testimony of the state was insufficient to prove the offense charged against the defendants, or that any other offense had been committed by the defendants. This demurrer was overruled, and the defendants duly excepted.

The defendants insist that the court erred in giving instruction 10. Instruction 10, as given by the court, was liable to' mislead the jury in its action, but under the record in this case it is not sufficient to justify a reversal of this case. The testimony is sufficient to sustain a conviction, and the defendants’ demurrer was properly overruled.

In view of the testimony of the prosecuting witnesses as to their serving the search warrant, and in view of the facts disclosed by the witness Bessie Stevens that no search warrant was served, we feel that the punishment inflicted on Bessie Stevens is greater than the facts warrant, and the judgment and sentence as to Bessie Stevens is modified from 90 days in jail and $250 fine to 30 days in jail and $100 fine, and, as modified, is affirmed.

The judgment against Joseph E. Stevens is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    JOHN DAVIS v. STATE.
    No. A-7083.
    Opinion Filed July 24, 1930.
    (290 Pac. 347.)

      Sigler & Jackson and R. A. Howard, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of driving an automobile while intoxicated, and his punishment fixed at confinement in the state penitentiary at McAlester for a term of six months, and a fine of $500. From which judgment the defendant has appealed.

The evidence on the part of the state, in substance, shows that on the 21st day of February, 1927, the defendant was driving a car down East Main street, of the city of Ardmore; the officers stated they started to follow him; they went up E street about two blocks and turned up F street and came back to the end of the viaduct where the defendant had stopped his car; defendant stopped his car on E street, northeast, between Fourth and Fifth avenue; “when we got to the car we found three women and Mr. Davis in the car; Mr. Davis was drunk and all the women were too; we arrested them and brought them down and put them in jail.”

On cross-examination witness stated: “I first saw them on East Main street; I saw them turn north on F street and started following them up F street, when I caught up with them I found them between Fourth and Fifth avenue.” Witness was then asked with reference to certain testimony in the examining trial, the greater part of which was excluded from the jury as being incompetent.

The testimony further shows that the street on which they were driving at the time of his arrest was a public street in the city of Ardmore, Garter county, Okla.

No testimony was offered by the defendant.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The first assignment of error is: “The court erred in overruling the defendant’s motion for new trial.” This assignment of error covers all the objections raised by the other assignments. At the close of the state’s testimony the defendant demurred to the evidence of the state for the reason that the same did not prove facts sufficient to constitute a crime against the laws of the state of Oklahoma, and for the reason there is a fatal variance between the information and the proof offered. Which demurrer was overruled, and the defendant duly excepted.

The defendant at the close of all the testimony moved the court to instruct the jury to return a verdict for the defendant for the reasons stated in his demurrer heretofore filed, which was overruled, and the defendant duly excepted. The defendant urges that his demurrer to the testimony should have been sustained by the court for the reason that the state did not prove that the point at which the defendant started to drive the car while intoxicated was unknown to the state. We have carefully examined the information and the proof offered by the state in support of the allegations, and we hold that the proof is sufficient to sustain the allegations in the information. That is, the proof shows that when the state witness saw the defendant first on East Main street, and driving on the public streets of the city of Ardmore, and went on to where he stopped his car, the defendant was intoxicated, using the language of the witness, “he was drunk.” The proof is sufficient to sustain the allegations in the information. The defendant was accorded a fair and impartial trial. The instructions of the court taken in their entirety substantially advised the jury as to the law applicable to the facts in the case.

Finding no prejudicial or fundamental errors in the record, the judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    Ex parte DAVID M. REYNOLDS.
    No. A-7636.
    Opinion Filed July 24, 1930.
    (290 Pac. 357.)
    W. D. Halfhill, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is confined at the hospital for insane at Yinita, OMa.; that he was adjudged insane by the county court of Caddo county and committed to the asylum at Norman, Okla., and that it was afterwards adjudged by the said county court that he was not insane and he was ordered discharged. Prior thereto he had been paroled by the physician in charge at the asylum, and that notwithstanding the order for his discharge he was transferred to and is now confined in the hospital for insane at Yinita. The application was filed in this court in November, 1929; it has never been presented to the court nor any judge thereof nor any brief in support filed. We consider the application abandoned. However, it should be disposed of upon the further ground that in this case the proceeding is civil in its nature. It is generally said that habeas corpus is neither strictly a civil proceeding nor a criminal proceeding, but rather a summary application by the person detained for the purpose of securing his liberty. 12 R. C. L. 1184. In some cases the proceeding is looked upon as civil, and in others as criminal, in nature. Simmons v. Georgia Iron & Goal Co., 117 Ga. 305, 43 S. E. 780, 61 L. R. A. 739; Gleason v. Com'rs of McPherson County, 30 Kan. 384, 1 Pac. 384; Carruth v. Taylor, 8 N. D. 166, 77 N. W. 617; Bailey, Habeas Corpus, § 4; Fisher et al., etc., v. Baker et al., 203 U. S. 174, 27 S. Ct. 135, 51 L. Ed. 142, 7 Ann. Cas. 1018, note. In Legate v. Legate, 87 Tex. 248, 28 S. W. 281, 282, it is said:

“Under the present Constitution and laws, appeals from the district court lie, in civil cases, to the court of civil appeals, and in criminal cases to the court of criminal appeals. It is therefore important, in case of appeal from a judgment of a district court in a habeas corpus proceeding, to determine whether the case be of a criminal or civil nature, in order to make the appeal returnable to the proper court. The purpose of the writ of ha-beas corpus is to inquire into' and remove any unlawful restraint upon the liberty of a person. If, in this proceeding, it appears that such person is restrained by reason of his supposed violation of some criminal law or quasi criminal law, as an offense against the person, or contempt of court, then the proceeding must be classed as a criminal case, although upon the whole case the court should be of opinion that the act for which such person is detained does not constitute a violation of such law, or that the evidence is totally insufficient to establish the act, or that the supposed law does not exist, or is void; but, if such person is not restrained by reason of some supposed violation of law, then the proceeding must be classed as a civil case. It is the cause of restraint which determines whether the proceeding to remove the restraint be a criminal or a civil case. It results from the above that we must answer in the affirmative the second question of law above propounded.”

Although this court under the provisions of sections 423 and 3048, Comp. St. 1921, has jurisdiction, it is better practice, where habeas corpus is resorted to by one not held upon some criminal or quasi criminal proceeding but by reason of restraint arising purely out of a civil matter, such as for the custody of a child, for failure to pay alimony in divorce cases, or for the release of one held as insane as in the instant case, that the application for the writ should be made to the civil and not to the criminal court.

The case is dismissed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating,


text:
    Ex parte JOHN N. GONSHOR.
    No. A-7637.
    Opinion Filed July 24, 1930.
    (290 Pac. 358.)
    W. D. Halfhill, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus, the facts involved are similar to those in the case of In re Habeas Corpus of David M. Reynolds, 18 Okla. Cr. 189, 290 Pac. 357, just decided. Poor the reasons there stated, the case is dismissed.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.


text:
    HATTY THOMPSON v. STATE.
    No. A-7483.
    Opinion Filed July 24, 1930.
    (290 Pac. 351.)
    D. L. Clement, for plaintiff in error.
    J. Berry King, Atty.. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted on a charge of maintaining a public nuisance by operating what is commonly known as the Nash rooms in the town of St. Louis, Pottawatomie county, the said rooming house being a place where spirituous, vinous, and malt liquors, which contained as much as one-half of one per cent, alcohol, measured by volume, and capable of being used as a beverage, is manufactured, sold, bartered, given away, and otherwise furnished, in violation of the prohibitory laws of the state of Oklahoma; and was sentenced to pay a fine of $300 and be imprisoned in the county jail for three months. From which judgment the defendant has appealed to this court.

The testimony on behalf of the state shows that the defendant was running what was known as the Nash rooms in the town of St. Louis, Pottawatomie county; that the officers went to the rooming house of the defendant with a search warrant about the 14th day of November, 1928, and searched the premises; they served the search Avarrant on the defendant, found her in bed; in one room in the southwest corner they found almost a half gallon of whisky in a fruit jar; they found three or four half pints in the defendant’s bedroom in a box with some papers in it, went a little further in the building, and found another half pint, and then found another half pint in another room. The Avitnesses also stated they had occasion to go by this rooming house and observed people congregating in and out of the place; these parties were drinking; they could tell they were drinking by the way they talked and the way they walked. Witnesses testified they found a number of empty bottles around the place; they knew the reputation of the Nash rooms, with reference to being a place where intoxicating liquor was had, kept, and possessed for the purpose of sale, and where people congregated and resorted for the purpose of buying said liquor; and that the reputation was bad.

The defendant testified in her own behalf, and admitted she was running the Nash rooms at the time the officers came to the place and searched it; the rooms were numbered from 1 to 10. The defendant stated positively that the officers did not serve a copy of the search warrant on her or say anything about having a search warrant:

“I was in No. 2; the officers did not find any whisky in my room; Mr. Guilliams told me he found a half pint in No. 4, and asked whose room it was, and I told him one of the girl’s room, and she was in Maud. They had about a pint and about a half-gallon fruit jar when they came up front. I did not know there was any liquor in the house. If the officers found it there in the rooms, the roomers had it there. It is not true I kept a place where people congregated for the purpose of drinking, bartering or selling whisky. I did not sell any liquor at the Nash rooms between the 1st of November and the 14th of November, 1928.”

The defendant was then asked several questions with reference to where she had been living prior to and since she had been charged with the offense of which she was being tried. No testimony was introduced to show any previous violation by the defendant or that there had been any disturbance around the rooming house; the only testimony tending to show anything was the testimony of the state witnesses that they had passed back and forth by this rooming house and saw people congregating there, and they walked and talked like they were intoxicated. There is no testimony showing there had been any whisky manufactured, bartered, or sold at the defendant’s rooming house.

The defendant has assigned three errors alleged to have been committed by the trial court: First, error in overruling the demurrer of the defendant to the evidence of the state. Second, in overruling the motion of the defendant for instructed verdict, for the reason that the liquor alleged to have been seized was not produced in evidence as provided by section 7016, C. O. S. 1921. Third, error in refusing to give an instructed verdict on motion of the defendant for the reason that the search warrant was a John Doe search warrant.

The testimony in this case is conflicting. If the jury believed the testimony of the state witnesses, then it was warranted in returning, a verdict of guilty. On the other hand, if the jury believed the testimony of the defendant, she should have been acquitted. By its verdict the jury settled the conflict in favor of the state, finding the defendant guilty. This court has repeatedly held that where there was a conflict in the testimony, if there is any competent testimony from which the jury might reasonably find a verdict of guilty, it would not disturb the finding of the jury.

The evidence is sufficient to sustain a conviction of the crime charged against the defendant. Finding no errors in the record sufficient to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    THOMAS A. BAYNE v. STATE.
    No. A-7087.
    Opinion Filed July 24, 1930.
    (290 Pac. 354.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the sale of one pint of whisky to Grady Lancaster, on the 28th day of December, 1927; was tried, convicted, and sentenced to pay a fine of $250 and costs and be confined in the county jail of Payne county for 90 days at hard labor. From which judgment the defendant by petition in error and case-made has appealed to this court.

The defendant for his defense in this case pleads former jeopardy; that he has been tried in the district court on the same charge and a verdict of not guilty rendered; that he filed a motion for a new trial, which motion was on the 26th day of January, 1928, considered by the court, and the court sustained the motion for new trial and ordered the case dismissed and the defendant discharged; that the style of the case in the district court is Thomas A. Bayne v. State of Oklahoma, No. 1467. That the information charged that the defendant Thomas A. Bayne, on the 9th day of April, 1927, was duly charged by information in the district court of Payne county, with the unlawful selling of spirituous liquor, to wit, whisky, and that on the said 9th day of April, 1927, the said Thomas A. Bayne duly entered his plea of guilty, whereupon the court rendered his judgment, and sentence was entered upon his plea of guilty, from which judgment and sentence the defendant did not appeal but served 30 days in the county jail of Payne county and paid a fine of $100; said conviction thereby became a final conviction.

Thereafter, to wit, on the 28th day of December, 1927, the said Thomas A. Bayne did then and there willfully, wrongfully, and feloniously sell to Grady Lancaster one pint of spirituous liquor, to wit, whisky, for the sum of $1.50. The information in this case was No. 5045, State of Oklahoma v. Thomas A. Bayne, in the county court of Payne county, and charged the defendant with selling to Grady Lancaster, on the 28th day of December, 1927, one pint of spirituous liquor for $1.50.

The date of the alleged offense in the district court and the date of the alleged offense in the county court are the same. The party to whom the sale is alleged to have been made, the amount of whisky, and price paid is the same in each information.

In the trial of this case the state called as a witness Grady Lancaster, who testified in substance as follows:

“I bought from the defendant Thomas A. Bayne, in Payne county, Oklahoma, on the 28th day of December, 1927, one pint of whisky for which I paid him $1.50; on that date he delivered to me a pint of whisky, and I delivered to him $1.50; this was the only whisky I bought from him that day. I testified in the case of State of Oklahoma v. Thomas A. Bayne, No. 1467, in the district court of Payne county, Okla., in which the defendant was on trial for this same sale of whisky to me; this defendant on trial is the same person that was on trial in that case, and the offense for which he is on trial in this case is the same offense, or rather the same sale of whisky for which he was tried in the district court of Payne county. The bottle of whisky I now hold in my hand is the whisky I bought from the defendant on the 28th day of December, 1927.”

The defendant introduced a transcript of the proceedings of his trial in the district court of Payne county, showing that he had been tried and convicted. A motion for a new trial had been filed and sustained by the trial judge and the case ordered dismissed and the defendant ordered discharged. The defendant’s plea of former jeopardy was decided against him, and the defendant by petition in error and case-made has appealed to this court.

The defendant assigns two errors alleged to have been committed by the trial court: First, the court erred in overruling his motion for a new trial on his plea of former jeopardy. Second, the verdict of the jury and judgment of the court in favor of the state, on his plea of former jeopardy, is contrary to, and not sustained by, the evidence or the law.

An examination of the record in this case shows that the defendant had been tried in the district court upon an information alleging a former conviction and then charging that on the 28th day of December, 1927, the defendant sold one pint of whisky to Grady Lancaster for the sum of $1.50. In other words the record shows conclusively that the defendant was tried in the district court of Payne county, a court of competent jurisdiction, upon an information charging sufficient facts to give the district court jurisdiction of the offense charged, and was convicted. Motion for a new trial was filed by the defendant, sustained by the court, and the court ordered the defendant discharged and his bail exonerated. The defendant insists that the action of the court in sustaining his motion for a new trial, ordering the defendant discharged and his bail exonerated, amounted to an acquittal, and that his trial in the county court was contrary to law.

Section 2915, O. O. S. 1921, is as follows:

“If the court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.”

Section 2918, O. O. S. 1921, reads as follows:

“An order for the dismissal of the action as provided in this article, is not a bar to any other prosecution for the same offense.”

That part of section 2753, 0. O. S. 1921, applicable to the facts in this case is as follows:

“A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had.”

As we view the law in this case the order of the district judge sustaining the motion for a new trial and ordering the case dismissed, and defendant’s bail exonerated, placed the defendant in the position as though no trial had been had, and does not constitute a bar to a future prosecution of said offense by information filed in a court of competent jurisdiction. The county court of Payne county, as shown by the information in this case, had full jurisdiction of the offense, and the defendant’s plea of former jeopardy was properly denied.

The evidence is sufficient to sustain a conviction of the crime charged. Finding no errors in the record sufficient to warrant a reversal, the judgment of the lower court is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    Ex parte LUTTIE DAVIS et al.
    No. A-7919.
    Opinion Filed July 25, 1930.
    (290 Pac. 356.)

      Jas. M. Shackelford, Ben Williams, Logan Stephenson, and Ethel M. Proffit, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. It is made to appear that on June 14, at the negro village of Clearview in Okfuskee county, petitioner Luttie Davis, with a Colts revolver, shot one J. E. Thompson four times, killing him almost instantly. Three of the wounds were inflicted from the rear, two of them near the backbone. All the parties are negroes. The deceased had been a deputy sheriff and at times worked under the direction of the sheriff among members of his race. On the day in question the petitioners were at the town and with others of their race engaged in a crap game at a gin, during which a difficulty arose among some of the participants in which one was cut with a knife. Upon hearing of this, Thompson, the deceased, called up the sheriff at Okemah and asked him to come over and arrest the parties. The sheriff instructed him to make the arrest and to hold the parties until he came. Petitioner Luttie Davis, who lived at Clearview, went to his house, got his pistol, and returned with it, and near a Ailing station discharged it, but on being advised by his brother deposited it in a restaurant. He later went over to get the pistol and his copetitioner, Clifford Davis, waited outside. About that time deceased drove up in an automobile and Clifford engaged him in a conversation, and, while so engaged, Luttie Davis came out, walked up to the car, and, as stated, shot and killed Thompson while sitting under the wheel of his car. Petitioners contend they acted in self-defense, that there was a shotgun in the back seat of deceased’s car, and that at the time the shots were fired deceased was reaching into his pocket for a pistol. It is particularly insisted that in any event the petitioner Clifford Davis is entitled to bail. If the evidence as to Clifford Davis were considered alone, this contention would have weight, but since slight concert of action or collusion in the commission of a crime renders the act of one conspirator the act of all, and as there is sufficient evidence of an acting together to make evidence of the acts of Lut-tie Davis competent against Clifford Davis, they stand on an equality in the matter of bail. Gibson v. State, 45 Okla. Cr. 412, 283 Pac. 791.

Under the provisions of section 2921, Comp. St. 1921, a person charged with murder shall be admitted to bail unless the proof is evident or the presumption great. In a capital case after commitment by an examining magistrate where application is made by habeas corpus to be let to bail, the burden is on petitioner to show that the proof is not evident nor the presumption great, and, unless he sustains such burden, bail should be denied. Ex parte Pope, 37 Okla. Cr. 366, 259 Pac. 149; Ex parte Whitenack, 38 Okla. Cr. 102, 259 Pac. 165; Ex parte Jones, 41 Okla. Cr. 224, 271 Pac. 426; Ex parte Ditmore, 42 Okla. Cr. 111, 274 Pac. 697.

Where the homicide is proven or admitted, this court, on an application for bail, will not indulge any presumption for the accused either of justification or mitigation. Ex parte Fraley, 3 Okla. Cr. 719, 109 Pac. 295, 139 Am. St. Rep. 988; Ex parte Ditmore, supra.

There is in this case a conflict in the testimony. Mainly, however, the conflict is between defendants and the witnesses for the state. The physical facts, particularly the wounds in the back, tend to- sustain the state’s theory that the homicide was not an act of self-defense. A mere conflict of testimony even upon a vital issue does not of itself entitle a defendant held for murder to be admitted to bail. The evidence must be considered as a whole, and, when so- considered, unless a reasonable doubt of the defendant’s guilt of murder is generated, bail should be denied. In re Bollin, 3 Okla. Cr. 725, 109 Pac. 288. Even if there should be a reasonable doubt of the guilt of the accused of murder, yet, if upon an examination of the entire record the presumption is great that the accused is guilty of a capital offense, he is not entitled to- bail. Ex parte Lytton, 31 Okla. Cr. 369, 239 Pac. 270; Ex parte Pope, 37 Okla. Cr. 366, 259 Pac. 149.

Under the record before us, petitioners have not made it appear that the proof is not evident nor the presumption great. Such being the state of the record, they are not entitled to bail.

The Avrit is denied.

DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating,.


author: CHAPPELL, J.

text:
    R. E. OSTEEN v. STATE.
    No. A-7391.
    Opinion Filed June 21, 1930.
    Rehearing Denied Aug. 1, 1930.
    (290 Pac. 417.)

      Percy Powers and Eoddie & Harrison, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of having unlawful possession of mash, and his punishment fixed by the jury at a fine of $50 and confinement in the county jail for 30 days.

The evidence of the state was that the officers had a search warrant and, searching the premises of the defendant, found one whisky still, one still worm, one jar of whisky containing about three pints, and one metal tank containing about 200 gallons of mash used in the manufacture of whisky. The officers arrested the defendant and one Bob Brusenhen, filing separate cases against them charging them with the possession of whisky, with the possession of a still, and with the possession of mash. Brusenhen pleaded guilty to the charge of possession of intoxicating liquor, and the other two cases were dismissed against him. The defendant was tried upon the charge of having possession of mash and, having been found guilty, the other two charges were dismissed as to him.

The defendant argues but one question in his brief, and that is the sufficiency of the evidence. There is no merit in this contention. The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    ASBURY SMITHSON v. STATE.
    No. A-7071.
    Opinion Filed Aug. 2, 1930.
    (290 Pac. 568.)
    Seawel & De Graffenried, for plaintiff in error.
    The Attorney General, for the State,
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county, on a charge of having unlawful possession of intoxicating liquor, to wit, 28 gallons of corn whisky, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 60 days.

The officer, before searching defendant’s premises, obtained a search warrant describing the premises of the defendant as set forth in the syllabus of this case. In the case of Burleson v. State, 47 Okla. Cr. 412, 288 Pac. 989, and Ogle v. State, 47 Okla. Cr. 4, 288 Pac. 1000, this court held that a description similar to the one in the case at bar was too vague and indefinite to authorize the search of defendant’s premises thereunder.

The evidence having been obtained by an unlawful search of defendant’s premises, it was error for the trial court to overrule the motion to suppress the evidence. For the reasons stated, the cause is reversed..

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


author: PER CURIAM.

text:
    Ex parte MARCELLA LYONS.
    No. A-7889.
    Opinion Filed Aug. 2, 1930.
    (290 Pac. 568.)
    J. W. Simpson, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus in which petitioner alleges that she is incarcerated in the city jail of Tulsa charged with the violation of “Ordinance number-of the city of Tulsa.” It is then alleged that the ordinance is void for numerous reasons. The application was filed on June 6, and a hearing had. The petition for writ does not have attached to it a copy of the ordinance, and no proof of it was made under the provisions of section 645, Comp. St. 1921, nor does the petition disclose the number of the ordinance nor the date of its adoption. Counsel for petitioner was given ten days to file brief, and, when not filed during that time, a further extension of ten days was allowed. No briefs have been filed. The petition will be considered as abandoned.

The case is dismissed.


text:
    GEORGE STAHL v. STATE.
    No. A-7508.
    Opinion Filed Aug. 16, 1930.
    (290 Pac. 1118.)

      Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Noble county on a charge of having unlawful possession of intoxicating liquor^ and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 14th day of August, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.