text:
    Ex parte JULIUS ZELIGSON.
    No. A-7462.
    Opinion Filed April 5, 1930.
    (287 Pac. 731.)
    A. F. Moss, H. R. Young, and 0. A. Warren, for- petitioner.
    J. Berry King, Att-y. Gen., and Smith G. Matson, Asst. Atty. Gen. (B. B. Blakeney, Hubert Ambrister, and W. R. Wallace, of counsel), for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is illegally restrained of his liberty by the warden of the state penitentiary at MeAlester; that said restraint is under a commitment issued upon a judgment and sentence of the district court of Noble county; that said commitment is void, for the reason that petitioner, in the district court of Noble county on November 30, 1925, was charged by information with grand larceny; that he was tried in March, 1926, and at the close of the state’s case petitioner demurred to the evidence and requested an instructed verdict; that the court then instructed the jury to return a verdict of not guilty, and they were placed in charge of the bailiff and retired. They later returned, and informed the court that they could not reach a verdict and were discharged from further consideration of the case without objection from petitioner; that on December 8, 1926, the case again came on for trial. The jury was impaneled, the case was again tried, and a verdict was returned finding petitioner guilty and assessing his punishment at three years in the state penitentiary. The second trial was upon the issue raised by the plea of not guilty, and no plea of former jeopardy was made. An appeal from such conviction was duly taken to, and affirmed by this court. Zeligson v. State, 43 Okla. Cr. 24, 276 Pac. 791. In the appeal to this court no contention of former jeopardy was made.

Petitioner asserts that he now claims and relies upon the right and immunities guaranteed under the Fifth Amendment to the Federal Constitution, and disclaims any rights or immunities under the state Constitution. He argues that the action of the trial court in the trial of March, 1926, was an acquittal, and the subsequent judgment is therefore void and a legal nullity, and may be relieved against by habeas corpus, although the plea of former jeopardy was not made; it being petitioner’s theory that, after an acquittal, the court thereafter was without any jurisdiction to ever again try petitioner on the same charge, citing various authorities, among them, In re Nielsen, 131 U. S. 176, 9 S. Ct. 672, 33 L. Ed. 118; Bens v. U. S. (C. C. A.) 266 F. 152; Ex parte Glenn (C. C.) 111 F. 257; Ex parte O’Connor, 80 Cal. App. 647, 252 Pac. 730; Ex parte Bornee, 76 W. Va. 360, 85 S. E. 529, L. R. A. 1915F, 1093; Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775. Other decisions are also cited, which petitioner asserts in some measure sustain his contention.

This court is committed to the doctrine that former jeopardy and former conviction, to be made available as a plea to bar a further prosecution, must be presented in the trial court, the overruling of such plea being error reviewable by direct attack by an appeal and that the judgment of conviction after jeopardy is a voidable judgment as distinguished from a void judgment; that former jeopardy may be waived by a defendant, and is waived, when not interposed in the trial court or raised.in the course of the trial. Petitioner admits that this is the rule announced by the decisions of this court and of many other states, but contends that in so holding the courts are in error; and, while the trial court in this case had jurisdiction of the person of petitioner and of the subject-matter, it lacked the third necessary element to a valid criminal judgment, that is, jurisdiction to render the particular judgment.

Section 21, art. 2 (Bill of Rights), State Constitution, forbids that any person be twice put in jeopardy for the same offense.

Section 2713, Comp. St. 1921, provides:

“If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving' a verdict.”

The action of the court in the trial apparently was an attempt to follow this statute. Sections 2617 and 2619, Comp. St. 1921, provide for the plea of former jeopardy. But, since petitioner expressly disclaims any right under the state Constitution, but relies entirely upon the .Fifth and Fourteenth Amendments to' the Constitution of the United States, we consider his contention in reference to those amendments.

It appears to' be well settled that the Fifth Amendment to the Federal Constitution, along' with the other of the first ten amendments does not limit the state governments, but operates on the national government alone. The Fourteenth Amendment merely prohibits a state from depriving any person of due process of law, and guarantees the equal protection of the law. In Ex parte Spies, 123 U. S. 131, 8 S. Ct. 22, 24, 31 L. Ed. 80, the court, speaking through Mr. Chief Justice Waite, said:

“The first 10 articles of amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone, was decided more than a half century ago, and that decision has been steadily adhered to since, * * *” citing many authorities.

See, also, Charles L. Maxwell v. Geo. N. Dow, as Warden, etc., 176 U. S. 581, 20 S. Ct. 448, 494, 44 L. Ed. 597; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314. Several of the cases cited by petitioner hardly bear out his claim. The Nielsen Case, supra, was a prosecution under the federal statute in the Federal District Court of the Territory of Utah, and, as the procedure was under the Federal Constitution, the Fifth Amendment did apply. The plea, of former conviction was in fact made in that case.

Due process of law means the law of the land, and in a criminal case in a state court simply means that the tiial shall be in accordance with the laws of the state; that is, in a court of competent jurisdiction, before an im-paitial judge and jury or before a judge without a jury, upon a proper accusation by indictment or information, as the laAv may provide, which charges the accused with the violation of some state law, of which charge he must have notice in time to prepare for tidal, the trial to be according to established procedure and the established rules of evidence, and any punishment to be inflicted to be as authorized by law. Even if we should concede that the record discloses a case of former jeopardy, it is also- well settled by many decisions of this court and courts of the other states and the federal courts that the plea of former jeopardy is a personal privilege which must be made in the trial court or appear at the trial in the first instance. That such plea may be waived, and, if not so presented, is waived. Where not pleaded in the first instance, it cannot thereafter be raised by habeas corpus. The following cases sustain the law as stated in whole or in part:

In Ex parte Johnson, 1 Okla. Cr. 286, 97 Pac. 1023, 1024, 129 Am. St. Rep. 857, it is said:

“* * * Second. Can the plea of former jeopardy be heard on habeas corpus proceedings? It is an elementary principle of law, of universal acceptance, that mere errors or irregularities, which do not render the proceedings void, are not ground for relief by habeas corpus. We have an authority directly in point to the question now under consideration in the ease of In re Belt, 159 U. S. 95, 15 S. Ct. 987, 40 L. Ed. 88. The petition for the writ set up former jeopardy as the ground upon which the petitioner sought to be released from -custody. The Supreme Court says: ‘The general rule is that the writ of habeas corpus will not issue unless the court under whose warrant the petitioner is held is without jurisdiction, and that it cannot be used to correct errors.’ It then held that the lower court had jurisdiction, and the writ was denied. In Whitten v. Tomlinson, 160 U. S. 231, 16 S. Ct. 297, 40 L. Ed. 406, the writ was sought also upon the ground of former jeopardy. Referring to this plea, the court said: ‘Whatever effect it might have if pleaded to a subsequent indictment affords no ground for his discharge on habeas corpus.’ In the case of Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533, the court says: ‘The decisions have been uniform that the writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy.’ ”

To the same effect is Ex parte Wood, 21 Okla. Cr. 252, 206 Pac. 541. In the case of White v. State, 23 Okla. Cr. 198, 214 Pac. 202, 205, it was said:

“Where a constitutional right is for the sole benefit of the accused, in the nature of a privilege, that right may be waived by express consent, or by implication from conduct indicative of consent, or by a failure to claim or assert the right in seasonable time.”

This latter case was cited with approval , by the Circuit Court of Appeals in the case of Levin v. U. S. (C. C. A.) 5 F. (2d) 598. See, also, Blair v. White (C. C. A.) 24 F. (2d) 323; Ex parte Chadwick (C. C.) 159 F. 576; Ex parte Blodgett (D. C.) 192 F. 77; Ex parte Spencer, 228 U. S. 652, 33 S. Ct. 709, 57 L. Ed. 1010; U. S v. Cruikshank et al., 92 U. S. 542, 23 L. Ed. 588.

Upon a consideration of the entire case we are of the opinion that, where a trial judge, under the provisions of sections 2617, 2619 and 2713, Comp. St. 1921, advises the jury to return a verdict of not guilty, they are not bound by the advice, but may return a verdict of guilty or may report a disagreement, and the discharge of such jury because they are unable to agree does not constitute former jeopardy. Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040. We are further of the opinion that a claim of jeopardy is a personal privilege which may be waived, and such waiver may be either express or implied, and is implied by conduct indicating consent or by failure to claim or assert the right in seasonable time. It follows that the writ should be, and it is, denied.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    WADE CASTER v. STATE.
    No. A-7180.
    Opinion Filed April 5, 1930.
    (287 Pac. 804.)
    L. M. Gensman and Charles G. Ozmun, for plaintiff in error.
    The Attorney General and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county on' a charge of maiming, by biding off the ear of C. O. Haile, and his punishment fixed by the court at imprisonment for six months in the penitentiary.

The evidence of the state shows: That on the night of November 28, 1925, defendant and the prosecuting witness were at a dance and had some differences but shook hands and agreed to let bygones be bygones. That the prosecuting witness, Haile, went into the yard to get some wood to put in the stove. That he was returning with two pieces. That as he started upon the porch to go into the house the defendant attacked him and they rolled off: the porch on the ground. The prosecuting witness says he did not know anything after he fell to the ground until he was taken into the house. That the prosecuting witness was seventeen years of age and the defendant twenty-four. That when they were separated defendant was biting the thumb of the prosecuting witness, and when he was taken to the light in the house it was discovered that his ear had been bitten off. That defendant was drunk and quarrelsome at the time of the difficulty and had made threats and said he could whip any son of a bitch on the porch.

Defendant claimed that the prosecuting witness was coming toward him with a club in his hand, and that he grabbed the prosecuting witness to protect himself, and that they rolled off the porch together, and, if the prosecuting witness lost an ear, it must have been cut off by a sharp rock or some other instrument, and denied that he bit the ear off. There is sufficient evidence in the record to support the verdict of the jury.

The defendant complains that the court erred in instructing the jury. The defendant did not except to the instructions and does not in his brief point out wherein any of them or any part of them were erroneous. The burden of showing error rests upon appellant-,' and his counsel must point out any error in the instructions and support them by argument and authorities. Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

The instructions when considered together fairly state the law of the case, and the court did not err in overruling the motion for new trial because of alleged erroneous infractions.

Defendant next contends that the instructions or some part of them were given by the court orally. The case-made discloses that the general instructions were given by the court in writing and duly filed in the case. It nowhere appears in the record that the court gave any oral instructions, nor does defendant set up any such claim in his motion for new trial. An alleged error of the court in instructing the jury orally will not be considered on appeal, unless presented to the trial court in a motion for new trial.

•The jury found the defendant guilty and recommended leniency. The court sentenced the defendant to the penitentiary for six months. The evidence being sufficient to support the verdict, and the punishment clearly falling within the recommendation of the jury, the cause is affirmed.

EDWABDS, P. J., and DAVENPOET, J., concur.


author: DAVENPORT, J.

text:
    CARL McNEILL v. STATE.
    No. A-7186.
    Opinion Filed April 5, 1930.
    (287 Pac. 1045.)

      Morris & Wilhite, 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 having in his possession a whisky still for the unlawful purpose of manufacturing whisky and distilled spirits, and sentenced to pay a fine of f 100 and be imprisoned in the county jail for thirty days. Prom the sentence and judgment the defendant has appealed to this court.

The testimony on behalf of the state tends to show that the officers were out in the neighborhood of defendant’s home and, after they had searched the place of a man by the name of Thornton, went over on defendant’s place about a quarter of a mile from defendant’s home, and in a small canyon in a woods pasture found a still set up ready to be operated, and near that place they claim to have found some barrels of mash. The defendant was not at home at the time, and no one was found in possession of the still or near it. The defendant had cultivated the land near where the still was found and part of the corn had been gathered, and there had been a wagon going back and forth in the cornfield and near where the still was found and they claim there were tracks of parties near the still, and they saw evidence that the still had been operated a short time prior to finding it. The officers did not find any whisky or anything in the way of empty bottles or jugs that might be used as containers for whisky.

The defendant denies that he had anything to do with the still, or that he had any knowledge it had been placed in the canyon in the woods pasture more than a quarter of a mile from his home, which canyon could not be seen from the house. A number of witnesses testify to the defendant’s previous good character, and the record shows that he had never been charged with a crime previous to this time. Defendant shows by his tenant on the place that he had been working in the cotton patch, and hauling cotton to the market, a few days prior to the time the officers found the still. The defendant hauled a load of cotton to' Gracemont the day the officers found the still, and the tenant accompanied him, and that in the afternoon the defendant and his wife went to Anadarko, and the tenant on the farm, in his own car, went to Anadarko.

The testimony of the defendant further tends to show that the defendant had been in the state of Kansas for more than a week prior to the finding of the still by the officers, and had returned a day or two before the still was found. All of the testimony of the state contained in the record is circumstantial; neither of the officers knows to whom the still belonged, and each of them testified that the defendant was not at home when they found it, and that the still was a quarter of a mile from the defendant’s home and could not be seen from the house, and that no one was found in possession of the still.. There is no testimony tending to show that the defendant was ever about the still, had anything to do' with it, or knew it was in the canyon where it was found.

The defendant alleges eleven errors committed by the court in the trial of his case. The first assignment of error is that the court erred in overruling the motion of' the plaintiff in error to suppress certain evidence. Before the trial in this case began, the defendant filed a motion to suppress the evidence on the ground that the search made by the officers of this place on the 27th day of October, 1927, was an unlawful search, for the reason that they had no search warrant. It was admitted by the officers they did not have a search warrant to search the premises of the defendant.

In Merck v. State, 35 Okla. Cr. 160, 249 Pac. 163, this court in the syllabus said:

“A search and seizure * * * where it is made in canyons, pastures, or fields not in close proximity to any residence, is not ‘unreasonable,’ Avithin the meaning of the Constitution.”

In Perry et al. v. State, 42 Okla. Cr. 92, 274 Pac. 686, this court in the syllabus said:

“Where the commission of an offense is suspected, a search of woodlands, pastures, or fields, not within the curtilage or close proximity of a dwelling house, is not unreasonable, and a search warrant is not necessary.”

In this case the testimony shows that the place where the still was found was in a canyon in the woodland pasture, a quarter of a mile or more from any dwelling house, and the motion of the defendant Avas properly overruled.

The defendant in bis seventh assignment of error urges that the court erred in giving instruction No. 4, over his objections, which is as follows: “The court instructs the jury that in this case the state relies in part for conviction of the defendant on what is known as circumstantial evidence, and in this connection you are instructed that circumstantial evidence may be sufficient upon which to base a conviction, but before you will be authorized to convict the defendant upon circumstantial evidence, you must find that the innocence of the defendant is inconsistent with any other reasonable hypothesis other than the guilt of the defendant, and if from all the evidence and circumstances you aré convinced there is no other reasonable hypothesis other than the guilt of the defendant, then it will be your duty to return a verdict of not guilty.”

The defendant insists that the instruction given by the court to the jury is erroneous and places the burden upon the defendant. This court has many times passed on the proper instructions to be given by the court when the testimony of the state is circumstantial. We have examined the record in this case, and while the court in one of its instructions told the jury that the state relied in part on circumstantial evidence, we find that the evidence in this case is all circumstantial, there being no positive testimony to connect the defendant with the still claimed to have been found by the officers. The question is: Did the court in giving the instruction complained of by the defendant on circumstantial evidence correctly instruct the jury as to the law.

If the court gives an instruction upon circumstantial evidence, it should be accompanied by an instruction giving the law of circumstantial evidence substantially in the following language:

“You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established (that is, the guilt of the defendant) must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other, and inconsistent with any other reasonable- hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense charged against him. You are instructed that, when the circumstances are' Sufficient under this rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance as direct evidence.”

The instruction given was prejudicial; at least, it did not state the rule of law on circumstantial evidence correctly. Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Baldwin et al. v. State, 11 Okla. Cr. 228, 144 Pac. 634; Jackson v. State, 22 Okla. Cr. 354, 211 Pac. 1066, 1072.

The defendant may be guilty of the offense, but he is entitled to a fair and impartial trial, and it is the duty of the court, when it undertakes to instruct the jury upon the question of law, to give the correct instruction. In this case the testimony is not very strong and purely circumstantial, and no one can tell what the verdict of the jury would have- been had the court properly instructed the jury as to the law of circumstantial evidence.

There are other errors complained of in this record, but, the view we take of this record, it is not necessary to consider them. For the reasons herein stated, the case is reversed.

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


text:
    OTTO WIESE et al. v. STATE.
    Na. A-7200.
    Opinion Filed April 5, 1930.
    (287 Pac. 1099.)
    Roberson & Roberson, 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 jointly charged with Rudolph Wiese, with maintaining a public nuisance, and were jointly tried; Otto Wiese, Emil Wiese, and Leo Wiese were convicted and each sentenced to pay a fine of $200 and costs, and to be imprisoned in the county jail for sixty days. From which sentence and judgment defendants have appealed to this court.

The testimony on behalf of the state tends to show that the defendants were farmers living in Canadian county, about ten miles from El Reno; the defendants were in the habit of having play parties and a dance occasionally . at their country home. The state called H. H. Frank who testified he was acquainted with the defendants; that he had known them for about two years; that he testified at an inquiry held at the courthouse on the 20th day of September, 1927; the statement that he had testified at the courthouse was objected, to by the defendants. The record does not show any ruling by the court. Witness testified he had been at defendants’ home a hundred times or more within the past two years; he did not remember any of the dates when he was there. Witness was then asked if he had ever seen intoxicating liquor at the defendants’ house; the court overruled the defendants’ objection, and defendants excepted. The witness then answered : “I have. I have been at the house both day and night.” Witness then pointed out by name the defendants he had seen at their home; “I have not seen intoxicating liquor at defendants’ home many times.” Witness was again asked with reference to the statement he should have made some time in September, 1927, and defendants objected to it. The record is full of questions by the county attorney as to the statement which should have been made by the witness Frank in September; 1927; all of which were objected to by the defendants as incompetent, irrelevant, and immaterial. The objections were overruled, and they saved an exception.

Witness further stated that he did not remember he had ever seen any one intoxicated at defendants’ home. He was asked by the county attorney, “Did you testify that way at the inquiry?” And witness answered, “I don’t know whether I did or not.” Witness further stated he had not talked to the Wiese boys since that time. “T have never talked to them about this case.” Several pages of the record are taken up by the county attorney asking the witness with reference to the inquiry held some time in September, 1927, but the record does not disclose what kind of an inquiry it was, except it does disclose the witness was under oath. We do not deem it necessary to set out in this opinion the questions in full propounded. The record discloses that the witness testified at an inquiry of some kind in September, 1927, and witness made an affidavit or testified to some fact with reference to a case of some kind or hearing, the character of which is not disclosed. All of the testimony of the witness seems to be in reply to questions asked by the county attorney, in which he stated, “I don’t know I said that,” or “not that I remember.” Often his answer is, “I don’t remember that they did that,” and “I have never seen any of them having anything like a drinking party.”

On cross-examination witness was asked if his statement he was making to' the jury and the court today was true, and he answered, “The best I remember they áre.”

The county attorney then, over the objection of the defendants, offered in evidence an affidavit, claimed to have been sworn to by the witness H. H. Frank, on the 20th day of September, 1927, which was admitted and read to the jury. The affidavit, as disclosed by the record, is in the nature of questions and answers, the heading of which states it ivas taken in the office of the county attorney, on the 20th day of September, 1927.

The record discloses that when the county attorney offered the affidavit of his witness Huel H. Frank, claimed to have been taken on the 20th day of September, 1927, be stated to tbe court be offered tbe affidavit for tbe purpose of impeaching the witness Frank. After this affidavit was introduced tbe record shows that, in tbe absence of the jury, the witness Frank was taken into custody by tbe officer and placed in jail, there to await tbe filing of some kind of a charge against him, and that later on, after the witness had been in jail several hours, and after the defendants’ testimony was all in, the county attorney asked permission of the court to reopen the case for the reason that Huel H. Frank, who was the first witness for the state, on the previous day, had requested that he be permitted to take the stand and testify in the case in chief; that was objected to by the defendants, overruled by the court, and defendants excepted.

When Frank was called to the stand, the county attorney again went into his testimony, and his statements were entirely different from the testimony he had given in chief, and attempted to testify that the defendants had suggested to him, and asked him to not say anything much about them ; witness’ statements were completely changed from the testimony given when he was first called as a witness in the case. The witness stated Otto Wiese had spent the night with him Saturday night before the trial began on Monday, and that the defendants told him, if he got into trouble, they would help him out, and told him, when he was asked questions, to tell he had forgotten or did not remember.

Witness further testified that he had been to parties at the home of the defendants within the past three years; boys and girls both attended these parties; and that he had seen intoxicating liquor at these parties; that he had seen . persons at these dances under the influence of intoxicating liquor, and the conduct of some of the girls was not very good..

The court then asked the witness if he had ever been mistreated by the officers, and answered, “No, sir; I have not.” This was objected to by the defendants, the objection overruled, and the defendants excepted.

On cross-examination witness stated he had only seen his mother and father and they talked to him about changing his statement, and they told him they wanted him to tell the truth; that he had talked to a fellow by the name of Hutchins there in the jail, “and he told me I had myself in an awful shape.” Witness then stated he had looked at the paper in the office of Mr. Jennings, who “asked me if I knew, if I could remember what I told in the paper. I am now trying to tell the truth; I don’t know that I am afraid of being prosecuted, if I let my statement made yesterday stand, nor do I know I will not be prosecuted.”

The three defendants were then called and contradicted the statement of the witness Frank as to having talked to him about the case, or in any way trying to influence his testimony. One other witness was called who testified to seeing intoxicating liquor and to buying a pint of intoxicating liquor from one of the defendants at their home when there was a party going on. Another witness testified to seeing one of the girls do an indecent dance by raising all her clothes up under her arms and exposing her person. Another testified to seeing Luster Smith and Freeda Wiese, or Haynes, in a room on a bed in the act of cohabitation. Several witnesses who attended the parties testified for the defendants, testifying positively they had never seen the defendants sell any whisky or in any way whatever furnish the same to others.

Luster Smith testified he had been to the defendants’ place often, and that he had never seen the defendants offer any whisky for sale; that he had a farm about a mile from their farm; that he did not know how many visits he had made to defendants’ place; that he never saw any misconduct on the part of any of the girls; that he knew Freeda Wiese, or Haynes, and that he had never been on the bed with her at any time at the defendants’ home or any other place.

Freeda Wiese testified and stated she had never had sexual intercourse with Luster Smith; that she had never been on the bed with him, nor had he ever been on top of her on the bed. Opal Ross and several other witnesses denied the statement that she had ever pulled her clothes up and exposed her person and danced in the room where other parties were. Several witnesses testify to having attended the parties and dances, and stated there was about the same order there as at the other dances conducted at other places.

The testimony of the officers called as witnesses for the state is that on one occasion they found some whisky in the section line a short distance from where the defendants lived; they found some jugs and bottles that had an odor like whisky in them, and one time they found about a half pint, of whisky in one of the jars, but the officer stated it was not a sufficient amount' to justify them in making an arrest.

The testimony shows that these three defendants were farming a large tract of land; that they had two sisters living with them, one stayed all the time and supervised and looked after the housework; that young men ■ and young women called often and they would have a play party, and on one or two occasions the testimony shows they had a dance. The testimony further shows that O. R. Shulor’s actions were such that it became necessary at one time for the defendants to take him from the room where he was dancing, and he got mad, and they had to invite him to leave.

The testimony of H. H. Frank is contradictory and is not corroborated by any other witness. Some of the state witnesses attempt to show that when they had these parties they never saw the defendants sell any whisky or dispose of it in any way. The inquiry of the state was extended over a. period of three years.

We have referred to all the testimony we deem necessary to refer to. The defendants have assigned several errors alleged to have been committed by the court in the trial of their case. We will first, consider the fourth and seventh assignments, which are as follows: .

“4. The court erred in admitting incompetent, irrelevant, immaterial and prejudicial testimony offered on the part of the state to go to the jury over the objections and exceptions of the defendants.”

“7. The court erred in permitting the state to impeach the testimony of its witness Huel H. Frank.”

In the record Huel H. Frank is spoken of in several places as H. H. Frank. The defendant insists that the court erred in permitting the county attorney, over their objections, to attempt to impeach the testimony of the state’s witness Huel H. Frank, by reading to' the jury an affidavit or statement claimed to have been made by the witness, on the 20th day of September, 1927, in the office of the county attorney. There is nothing in the record to show what kind of a hearing was being held when the affidavit of Frank was taken, nor for what purpose the affidavit was taken, and the record fails to show that either of the defendants Was present at the hearing or knew anything about it, and they insist that their rights' were prejudiced by reason of the court’s action in permitting the state to read to the jury the statement of the winess Frank. When this affidavit or statement was offered by the state the county attorney stated to the court that he offered the same for the purpose of impeaching his witness Huel IT. Frank. No showing is made that the county attorney was talien by surprise in the testimony of the witness Frank when he testified in the trial of this case, nor is there any reason why the state should be permitted to attempt to impeach its witness. A careful reading'; of the testimony of the witness Frank shows that he did not testify in the trial of the case anything detrimental to the state, but simply failed to testify hurtfully or prejudicially to the defendants on trial.

It is clear from the examination of the witness Frank by the county attorney that he was not testifying satisfactorily to the county attorney, and that the county attorney was predicating his questions propounded to the witness upon some statement or affidaVit in his possession. The defendants urge that the mere fact that a witness does not testify as the party expected him to do will not afford any ground for the introduction of any evidence of previous contradictory statements made by such witness, and that, when contradictory statements made by a witness are in evidence for the purpose of impeaching the witness, they must be found to contradict the testimony of the witness which was injurious to the party seeking to impeach him, and in such case it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendants, and that the contradictory statements can only be considered by the jury for the purpose of affecting the credibility of the witness, and to consider it for any other purpose would be in violation of the law protecting the rights of the person charged.

In this case the record shows that when the statement of the witness Frank was presented and read to the jury, over the objections of the defendants, the entire statement was read and incorporated in the record.

The question to be determined is, Was the introduction of this statement claimed to have been sworn to on the 20th day of September, 1927, proper? When a party voluntarily calls a witness in proof of his case, he thereby represents him to be worthy of belief; they are presumed to know the character of the witness they produce and facts to which they would testify, and, having thus presented them, the law will not permit the party afterwards to impeach them. All of the earlier decisions are to this effect. The rule on this question has been somewhat modified ; however, a party cannot impeach his own witness by, proving his bad character for truth, because this is something a party can and should inform himself about before calling a witness to testify. However, where a witness makes a statement to a party which would be beneficial totheparty and the party having; reasonable grounds to believe that the testimony of the witness would be in substance the same as the statement made, and the witness is called and placed upon the stand, and, instead of swearing to the statements made to the party, testifies to matters which are injurious to the party calling him, it would be a manifest injustice to say that the party so surprised, deceived, and imposed upon should be bound by such testimony. Under these conditions a party, on the ground of surprise from the testimony given, should in the discretion of the trial court be permitted to offer evidence of previous statements of such witness which contradicts the injurious portions of his testimony. This rule would seem to be necessary for the protection of litigants against the designs of artful witnesses. If the witness deceives the party calling him, it would be unjust to hold the party to be bound by the deception. But this rule is subject to certain conditions: First a party must be surprised at the testimony of the witness sought to be impeached, and this surprise must be based upon such facts that would give the party reasonable grounds to believe that the witness would testify favorably to the party. If the facts were such that the party had no reasonable grounds to believe, when he placed the witness on the stand, that the witness would so testify, then he could not impeach his witness or claim suiprise, as the failure of the witness to give such testimony, the statements previously made by the witness contradicting the testimony given, would not be admissible. Second, it is not enough that the witness failed to tesify favorably to the party calling him in order that previous contradictory statements made by such witness may be introduced in evidence, .but the witness must have testified to' facts injurious to' the party calling him before he can be impeached.

Such contradictory statements are permissible alone for the purpose of impeaching the witness, and cannot be considered as original substantive evidence against the adverse party. Third, when such contradictory statements are admitted in evidence under proper conditions, the court should clearly inform the jury that such statements can only be considered by them for the purpose of affecting the credibility of the witness, that it is for the jury alone to determine whether they do have this effect or not, and that such contradictory statements are in no sense being considered as original evidence against the adverse party. In the case at bar the county attorney in asking to introduce the previous statement of the witness did not claim surprise, but only claimed the witness did not testify in the trial of the case to the facts contained in the statement previously made by the witness on September 20, 1927, while in the county attorney’s office, and failed to testify to what the county attorney desired him to testify to. Under these conditions we think the statement made by the witness out of court injurious to the defendants was inadmissible in evidence, for the reason that the witness did not testify to some of the facts contained in the statement which was introduced in evidence, for the purpose of impeaching the witness.

Further, the record shows that, after the witness Frank had been taken into custody by the sheriff under order of the court to be held by the officer for charges to be filed, the court granted the request of the state, after the defendants had closed their case, to call the witness Frank and permit him to change his testimony given the previous day in the trial. To the action of the court in permitting the case to be opened and the witness Frank recalled, the defendants objected, which objection was overruled, and exceptions saved. We have here a record showing the state called a witness and examined him, and, when his testimony was not what the state desired it to be, the court permitted the state to impeach the witness by permitting statements múde out of court to be introduced, and then, after the witness had remained in jail in custody of the officer, he was called out and permitted to change his testimony given in court.

We have here a record showing the testimony of the witness given in court and impeached by the party calling him, by introducing a statement claimed to have been made by him out of court and away from the defendants, or either of them, then recalled and another statement of facts testified to by the witness. All three of the statements were permitted to go to the jury without the court limiting or advising the jury the weight to be given the statement made by the witness in court or out of court. No one can say that the jury did not consider the statements contained in the statement of Frank made out of court as original or substantive evidence. After the court admitted it, the jury would have been warranted in considering it, and especially would this be true when the court had failed in its instructions to limit the scope of that statement to impeaching and contradicting' Frank. If the state has the right, upon the plea of impeaching its own witness, to introduce statements made by such witness contradictory to his testimony given in court, and getting the statement made out of court by the witness to the jury as the original substantive evidence against the defendants, then this court in all fairness would be compelled to hold that the defendants had the same right.

In Sturgis v. State, 2 Okla. Cr. 362, this court on page 392, 102 Pac. 57, 68, in discussing this question, after referring to the facts said:

“The far-reaching and ruinous consequences of such a rule are manifest. A defendant could place a witness upon the stand and, after asking him a few general questions, could then ask the witness if he had not made a statement (giving the statement in full) to the defendant, and other persons, which would constitute a complete defense. Upon the denial of the witness that he had made such a statement, the defendant could then place the parties named upon the witness stand and prove that the first witness had made such statements. If a defendant could do as was permitted to be done by the state in this case, it would be impossible to secure a single conviction, and no one would be subject to the pains and penalties of perjury.”

For the reason herein stated we hold that the court erred in permitting the state to introduce the statement of the witness Frank, made out of court to impeach its own witness, and by not withdrawing the statement made by the witness out of court, after the witness had been recalled and advising the jury not to consider the statement made out of court.

There are other errors complained of by the defendants which possess merit, but the view we take of this record it is not deemed necessary to lengthen this opinion further. The defendants are entitled to a fair and impartial trial, and under the facts set forth herein we cannot say they were accorded that fair and impartial trial guaranteed them by the laws of this state.

For the reasons herein stated the judgment of the trial court is- reversed.

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


text:
    CURT POLLETT v. STATE.
    No. A-7176.
    Opinion Filed April 5, 1930.
    (287 Pac. 1119.)
    Darnell & La Rue, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the district court of Custer county on a charge of grand larceny, and his punishment fixed by the jury at one year’s imprisonment in the state penitentiary.

The appeal in this case was filed in this court on the 1st day of October, 1928. 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 m> errors depriving the appellant of any substantial rights. The evidence being sufficient to support the verdict, the cause is affirmed.

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


text:
    Ex parte JULIUS LEWIS.
    No. A-6757.
    Opinion Filed April 8, 1930.
    (288 Pac. 354.)
    Amos T. Hall, for petitioner.
    The Attorney General and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The petitioner alleges that on the 12th day of September, 1927, a complaint, duly verified and indorsed by the county attorney of Tulsa county charging the petitioner with being upon a certain public highway in said county and state in a drunken and intoxicated condition, was filed in the justice court of W. M. Wilson, a duly elected, qualified, and acting justice of the peace of district No. 3 in said county; that on said day.the petitioner was tried and convicted of the offense charged in said complaint, and there was assessed against him a fine of $10 and a further sum of $11.80 as costs in said cause; that, defaulting in the payment of same, the petitioner was committed to the county jail of Tulsa county until the fine and costs were paid, where petitioner was being detained at the time of the filing of his petition.

The petitioner further alleges that said restraint and imprisonment is illegal and unauthorized in that the justice of the peace, before whom petitioner was tried and by whom petitioner was convicted, had a pecuniary interest in the conviction of the petitioner by reason of the fact that said justice depended upon a conviction of the petitioner in said cause for his fee; that by reason of said fact the petitioner was denied a fair and impartial trial before a fair and impartial judge; that by reason of the pecuniary interest of the justice of the peace in the conviction of the petitioner he is being and has been denied his constitutional rights, for the reason that the same is in violation of sections 6 and 7 of the Bill of Bights (art. 2) of the Constitution of Oklahoma; and for the further reason that petitioner’s conviction before the said justice of the peace is void and illegal, in that the same is repugnant to the Fourteenth Amendment of the Constitution of the United States.

An order was made by this court for the enlargement of petitioner on bail pending a hearing on his petition. The question presented by his application is “whether or not the justice of the peace who tried and convicted the petitioner had such an interest as prevented or hindered said officer from giving the petitioner a fair and impartial trial, and that as a result of said illegal conviction he is being restrained of his liberty without due process of law.”

Sections 6 and 7, article 2, of the Constitution of Oklahoma provides:

The courts of justice of the state shall be open to every person, and. speedy and certain remedy afforded for every wrong and for every injui*y to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.
“No person shall be deprived of life, liberty, or property, without due process of law.”

The statute fixing the fees in criminal cases for justices of the peace and constables is section 6432, C. O. S. 1921.

Section 6435, C. 0. S. 1921, is as follows:

“In all cases where the fees prescribed in criminal causes for justices of the peace and constables are not paid by the defendant or complaining witness, the fees allowed by law shall be paid by the county: Provided, that no such fees shall be allowed by the board of county commissioners until the justice of the peace or constable shall have filed an itemized statement, verified, that said fees have not and cannot be collected from any other source; Provided, further, that the total amount of fees paid by the county to any justice of the peace or constable, shall not exceed one hundred ($100.00) dollars per quarter. * * *”

Section 2993, C. O. S. 1921, provides for the filing of misdemeanor cases before justice of the peace, and is as follows:

“In all misdemeanor cases, before a warrant shall issue for the arrest of the defendant, the complaint must be- submitted to the county attorney, or drawn by him and indorsed as follows: ‘I have examined the facts in this case and recommend that a warrant do issue,’ and then filed with the court. If the action be brought without such indorsement the complaining witness must file with the court a bond to be approved by the court in a sum not less than fifty dollars, conditioned to pay all costs, and the county shall in no event be liable for any costs incurred in that action, unless the complaint be first so 'indorsed by the county attorney.”

The office of justice of the peace being created and the jurisdiction thereof fixed by section 18, art. 7, Constitution of Oklahoma, there arises no question of the constitutionality or legality of the court, but only the question of whether the fact that the justice of the peace may receive fees from the defendant upon his conviction creates such an interest in the action as disqualifies him under sections. 6 and 7, art. 2, of the Bill of Rights of the Constitution, and the Fourteenth Amendment.

The petitioner, to support his contention, relies upon the case of Tumey v. Ohio, 273 U. S. 510, 47 S. Ct, 437, 441, 71 L. Ed. 754, 50 A. L. R. 1243, wherein the court, speaking through Mr. Chief Justice Taft, lays down the folio-wing rule:

“It certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case.”

This rule, as laid down by the Supreme Court of the United States, follows the rule as stated in 33 C. J. 994, and the authorities therein cited. However, the facts in Tumey v. Ohio, supra, are widely different from the facts in the case at bar, and the law applicable to that case is not in point in the instant case and can be easily distinguished. In the Turney Case it appears that the mayor of the village of North College Hill was the judge who heard and passed sentence upon defendants in misdemean- or cases in his jurisdiction. It further appears that he received a fee of $12 in this case, contingent upon the conviction of the defendant, and that he had no other squrce from which such fees might be received. In the case at bar we find by reference to section 6435, supra, that the justice of the peace has three sources from which he may receive his fee, namely, the defendhnt, the complaining witness (where the complaint is not approved by the county attorney), and from the county itself, by presenting an itemized statement to the board of commissioners.

Again, in the Turney Case the mayor received a certain per cent, of the fine levied by him as his fee in the case, while in the case at bar the justice of the peace does not participate in the fine levied but only receives fees in accordance with the various ministerial acts performed by him in the case. It is a well-established rule of law that the interest of the justice of the peace must be in the subject-matter of the litigation. Langston v. Hazelhurst, 9 Ga. App. 449, 71 S. E. 592; Pace v. Hazlehurst, 9 Ga. App. 203, 70 S. E. 967; Tari v. State, 117 Ohio St. 481, 159 N. E. 599, 57 A. L. R. 284; Osborne v. Board of Improvement, 94 Ark. 563, 128 S. W. 357; Lindsay-Strathmore v. Superior Ct., 182 Cal. 315, 187 Pac. 1056; State v. Call, 41 Fla. 442, 26 So. 1014, 79 Am. St. Rep. 189; Laplant v. Marshalltown, 134 Iowa, 261, 111 N. W. 816; Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755; McFaddin v. Preston, 54 Tex. 403; Cheuvront v. Horner, 62 W. Va. 476, 59 S. E. 964.

Referring to the Turney Case, it appears that the trial was had without a jury and that the defendant was not entitled to a jury to determine the facts in his case, whereas in all criminal cases before a justice of the peace in this state the defendant has a right to trial by jury if he so requests. Section 19, art. 2, Bill of Rights, Constitution of Oklahoma.

In the Turney Case the defendant had no right or opportunity for retrial, and his right to appeal was confined to questions of law presented by a bill of exceptions to the appellate court. The question of whether there was any evidence upon which the conviction was based was particularly denied him. In the case at .bar the defendant had a right of appeal, first to the proper court of the county in which he was first tried, and thereafter, to the criminal court of appeals to determine if he Avas legally convicted by competent evidence. Section 3000, C. O. S. 1921.

In other jurisdictions writ has been denied because of right of appeal. Brooks v. Potomac, 149 Va. 427, 141 S. E. 249, 250; Ex parte Meeks (D. C. Ky.) 20 F. (2d) 543; Hill v. State, 174 Ark. 886, 298 S. W. 321.

Under the distinctions, as hereinbefore pointed out, AAre are of the opinion that the case at bar does not fall under the rule laid doAvn by Chief Justice Taft in Turney v. Ohio, supra, 33 C. J. 994, and the cases therein cited in support of the rule.

There is a rule supported by a great Aveight of authority to the effect that the interest of the justice or judge must be in the subject-matter of the litigation and not merely an indirect, incidental, contingent, or possible interest. Heydenfeldt v. Towns et al., 27 Ala. 423; City of Oakland v. Oakland Water Co., 118 Cal. 249, 50 Pac. 268; Internal Impr. Fund v. Bailey, 10 Fla. 213; Metsker v. Whitsell, 181 Ind. 126, 103 N. E. 1078; Com. v. Ryan, 5 Mass. 90; Peck v. Freeholders of Essex County, 20 N. J. Law, 457; In re Ryers, 82 N. Y. 1, 28 Am. Rep. 88; Forest Coal Co. v. Doolittle, 54 W. Va. 210, 46 S. E. 238; Clyma v. Kennedy, 64 Conn. 310, 29 A. 539, 42 Am. St. Rep. 194; Ex parte State Bar Ass’n, 92 Ala. 113, 8 So. 768; Foreman v. Marianna, 43 Ark. 324; State v. Call, 41 Fla. 442, 26 So. 1014, 79 Am. St. Rep. 189; State v. Intoxicating Liquors, 54 Me. 564; Holt v. Holt, 23 Okla. 639, 102 Pac. 187.

The fees given by law for the performance of official duties in relation to civil and criminal proceedings do not constitute an interest in the proceeding which disqualifies the judge, although his compensation in certain cases is a fee to be paid by defendant in case of conviction. Com. v. Keenan, 97 Mass. 589; Ex parte Hayes, 40 New Brunswick (Can.) 363; Bennett v. State, 4 Tex. App. 72.

Under the authorities cited above, the interest of the justice of the peace is not such an interest as would disqualify him on account of bias and prejudice. His interest does not go to the subject-matter of the litigation but is indirect, contingent, incidental, and possible only. His interest is so far removed from the determination of the guilt or innocence of the defendant that it cannot be said that he would act with bias and prejudice or that he would fail to give the defendant a fair and impartial trial.

Petitioner argues that this court ought to hold the trial court disqualified because of the possible abuse of this power by justice of the peace, and earnestly contends that in many instances helpless defendants are railroaded to jail because of the greed of dishonest and prejudiced justices of the peace. It may be true that some justices of the peace use this power to oppress those who are brought before them. It is the duty of this court to declare the law. It is for the Legislature to correct any evil that might arise out of oppression by justices of the peace. The appellate court of a sister state when passing on this question suggested to the Legislature a remedy for any abuse that might arise out of the system, and that was that all fines and costs should be paid into a common fund in the county, and justices of the peace should be paid their fees out of that common fund, or that justices of the peace should be prohibited from collecting costs in any case from tlie defendant, but, be that as it may, tliis court is concerned only with the question of due process of law.

Respondent contends that the remedy of petitioner is not by habeas corpus but by appeal. The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is Avith-out jurisdiction and that it cannot be used to correct errors. In re Chapman, 156 U. S. 211, 15 S. Ct. 331, 39 L. Ed. 401; Ex parte Adams, 42 Okla. Cr. 27, 274 Pac. 485; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; Ex parte Lair, 29 Okla. Cr. 282, 233 Pac. 789; Ex parte Dunn, 33 Okla. Cr. 190, 242 Pac. 574.

In the case of Riggins v. United States, 199 U. S. 547, 26 S. Ct. 147, 148, 50 L. Ed. 303, Chief Justice Fuller said:

“It is settled that the writ of habeas corpus will not issue unless the court under whose warrant petitioner is held is without jurisdiction, and that it cannot be used merely to correct errors. Ordinarily the writ will not be granted when there is a remedy by writ of error or appeal, yet, in rare and exceptional cases, it may be issued, although such remedy exists.”

The question involved in this case being so vital to the due administration of the criminal laws of the state, and of such widespread importance in the discharge of the official duties of justices of the peace of the state, we hold it falls Avithin the exception to the general rule and are settling the issues involved in the case now, rather than to require same to be brought to this court on appeal or by petition in error.

The fact that the justice of the peace might receive his costs from the defendant in case of conviction does not render such judgment void nor disqualify him to sit in the trial of the case. The writ is therefore denied.

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


author: EDWARDS, P. J.

text:
    Ex parte TONY L. AXTELL.
    No. A-7799.
    Opinion Filed April 12, 1930.
    (288 Pac. 350.)
    Conner & Conner, 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. Petitioner alleges that he is unlawfully restrained by the sheriff of Oklahoma county. That he was informed against in the district court of Oklahoma county with a felony, to wit, assault with a dangerous weapon, ivas convicted and sentenced to serve a term of one year. That he was denied a preliminary trial, although the question was duly presented to' the trial court. Without considering whether the question is one that can be raised by habeas corpus, the case will be disposed of on its merits.

Article 7, § 1, and article 7, § 18, of the Constitution, create and provide for the offices of justices of the peace. Section 17, art. 2, requires a preliminary or waiver thereof in all felony cases prosecuted by information. Section 3424, Comp. Stat. 1921, provides the number of justices of the peace in cities having more than 25,000 inhabitants, and, by the terms of this section, Oklahoma City had nine justices of the peace. This section was amended by chapter 248, Session Laws Sp. Sess. 1929, which is as follows:

“Section 3424. Each incorporated city or town, having more than one thousand five hundred inhabitants shall constitute a justice of the peace district; and there shall be elected therefor, as provided in this article, one justice of the peace and one constable; provided, that in all cities of more than twenty-five hundred inhabitants, two justices of the peace and two constables shall be elected; and provided further, that in cities of more than twenty-five thousand inhabitants there shall be elected an additional justice of the peace, and an additional constable for each fifty thousand inhabitants, or major fractional part thereof in excess of the said seventy-five thousand (75,-000) inhabitants, according to the last federal census.”

This act also carried an emergency section.

It is the contention of petitioner that this act reduced the number of justices of the peace from nine to four, and in effect made vacant all the offices of justices of the peace of Oklahoma City, and that the preliminary of petitioner was not before a justice of the peace, but before a private person assuming to act as a justice, and is a nullity. This contention cannot be sustained. Section 3424, supra, as amended, provides only for the election of justices of the peace thereafter, and does not purport to limit the number prior to the election following the enactment of chapter 246, Session Laws Sp. Sess. 1929, supra. The justices of the peace then in office continue as such until the next election.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    HENRY LUTON v. STATE.
    No. A-7103.
    Opinion Filed March 18, 1930.
    Rehearing Denied April 12, 1930.
    (286 Pac. 350.)
    Edgar Johnson, 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 convicted in the county court of Hughes county on the charge of having possession of intoxicating liquor with the intent to barter, sell, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of $100 and to be imprisoned in the county jail for a period of sixty days; from which sentence the defendant has appealed.

George Phillips, who was a deputy sheriff, testified that on the 9th day of December, 1927, he stopped at the Tulsa Rig & Reel Company, and as he was passing the warehouse of the company he heard some conversation and opened the door of the warehouse and went in; when he got on the inside of the warehouse, he found the defendant and two other parties there; he found a five gallon keg of whisky and the parties were syphoning the whisky out of the keg into fruit jars; witness stated defendant told him it was his whisky; the other two parties stated they were getting some Christmas whisky; the defendant was arrested, charged with the possession, of the whisky; the parties in the warehouse with the defendant at the time the witness for the state claims he found the defendant syphoning the whisky out of the keg into the fruit jars denied they told the witness they were getting some Christmas whisky.

Coke Denny testified he was with witness Phillips when he went to the Tulsa Rig & Reel Company warehouse, and that the defendant told Mr. Phillips it was his whis-ky. Considerable testimony was taken as to why the officers came to the Tulsa Rig & Reel Company plant that day, which is immaterial to this opinion.

A. R. Boswell, called as a witness on behalf of the defendant, stated his occupation was lumberman and manager of the Tulsa Rig & Reel Company; he remembers the incident of the defendant being arrested at the company’s warehouse; that the doors of the warehouse were kept closed; Mr. Boswell stated the whisky found in the warehouse was not his whisky, nor did he invite the defendant to go into the warehouse; witness further stated he did not know the whisky was there.

Joe Bowman also testified he was in the warehouse of the Tulsa Rig & Reel Company when Deputy Sheriff Phillips searched it; he saw some whisky; but he did not know whose whisky it was; that he did not tell Phillips he was buying from the defendant; witness further stated that it was not his whisky.

A witness by the name of Armstrong also testified as to being in the warehouse when Phillips came in; he did not tell the witness Phillips he was buying whisky for Christmas; this witness also testified that it was not his whisky. The foregoing is in substance the testimony introduced on behalf of the state and defendant. The defendant did not testify.

The defendant alleges that the court committed seven errors in the trial of his case. The second assignment of the defendant is the overruling of the defendant’s motion for continuance. It is clearly shown that no legal ground is set out in the motion for continuance. No diligence on the part of the defendant is shown. The motion for continuance was properly overruled.

The defendant in his third assignment alleges as error that the court should have sustained the motion to suppress the evidence offered by the state of Oklahoma on the illegal search of the defendant and premises of the Tulsa Rig & Reel Company. The record shows that the defendant was not in the employ of the company, that it was not his place of . business, and that his being present in the warehouse was without any authority from the company.

This court in Strickland v. State, 40 Okla. Cr. 94, 267 Pac. 672 in the first paragraph of the syllabus, says:

“The immunity guaranteed by the Constitution and the statutes against unreasonable searches is personal, and is available to an accused only when there has been an invasion of his rights. He has no right to complain of a trespass upon the premises of another.” Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052; Hall v. State, 39 Okla. Cr. 254, 264 Pac. 221.

In this case there is no testimony whatever tending to show the defendant was in.possession of the warehouse searched by the deputy sheriff, or that he had any ownership or right to the same, and for that reason the defendant was not in a position to claim the protection of the law against unlawful searches and seizures by the officer without a proper seareh warrant. The motion of the defendant to suppress the testimony was properly overruled.

It is next contended by the defendant that his conviction should be set aside for the reason, that there is no proof establishing the corpus delicti. The defendant insists that there is no corroborating, testimony of the deputy sheriff as to the defendant stating to him it was his whisky; that the other witnesses present claim they did not hear such statement. All of the courts hold that the corpus delicti cannot be established upon the uncorroborated confession of the defendant. However, in this case that question is not involved, for the reason that there is positive testimony by all the witnesses that there was whisky in the warehouse where the defendant and other parties were found; each of the other witnesses testifying it was not their whisky, but they did not know to- whom it belonged; the deputy sheriff testifying in positive terms that, when he entered the building, the whisky was being syphoned out of the keg into fruit jars, and that when he went into the building the defendant told him it was his whisky. No dispute that the whisky was found there; no dispute it was being syphoned out of the keg into the fruit jars; and no dispute by the defendant that the whisky did not belong to him. Under the proof in this case the corpus delicti was proven by positive testimony, and it was not necessary for the witness Phillips to be corroborated as to the finding the whisky in the possession of the defendant.

The testimony in this case is sufficient to sustain the conviction; the court properly instructed the jury as to the law; the defendant was accorded a fair and impartial trial. Finding no errors in the record to justify a reversal, the case is affirmed.

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


text:
    GEORGE CHILDS v. STATE.
    No. A-7197.
    Opinion Filed March 29, 1930.
    Rehearing Denied April 12, 1930.
    (286 Pac. 349.)
    Carswell & Wheeler, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, ivas convicted in the county court of Caddo county on a charge of having possession of four pints of whisky, and his punishment fixed at a fine of 8100 and confinement in the county jail for sixty days.

The evidence of the state is that the sheriff and one of his deputies with a search warrant searched the room of defendant and found a pint of whisky on the dresser and three pints of whisky under the floor. A board had been sawed in such a manner that a short piece of floor could be lifted out, and three pints of whisky were concealed in this hole and a rug on the floor spread over the opening. The defendant was not in the room when the search was made. The sheriff met him on the street a few minutes after the search and placed him under arrest. The defendant wanted to,go back to his room, and the sheriff went with him, and, while defendant was under arrest in the room, the sheriff took a half pint of whisky off of him. The defendant did not take the stand, and offered no evidence.

The defendant first contends that the court erred in overruling his application for a continuance on account of an absent witness. The information was filed on the 8th day of February, 1928. Thereafter the case was set for trial on the 16th day of August, 1928, at which time defendant filed his affidavit for a continuance on account of the absence of the witness Kenneth Childs. Defendant was called as a witness to testify in his own behalf on his hearing for a continuance and testified that the absent witness was his adopted boy. Defendant testified that Bill Vikers told him that the absent witness would testify that he placed the liquor in the room, and that defendant knew nothing about it. Vikers was subpoenaed as a witness but not used by the defendant. The court continued the case from August 16th to the 20th day of August, at which time the defendant was placed on trial without the purported evidence of the absent witness. According to the defendant’s own evidence, he had no knowledge that the absent witness would testify to the facts alleged, and had no knowledge of whether such facts were true. From an examination of the whole record, the court is of the opinion that the trial court did not abuse its discretion in overruling the application for a continuance. Worley v. State, 42 Okla. Cr. 243, 275 Pac. 398; Husband v. State, 45 Okla. Cr. 406, 283 Pac. 584; Ryan v. State, 46 Okla. Cr. 5, 283 Pac. 809.

The defendant next complains that the court erred in admitting incompetent evidence. The state was permitted to show by the sheriff that one-half pint of whisky was taken off the defendant after his arrest. The defendant being found in possession of more than one quart of liquor, the evidence ivas sufficient to support the verdict of the jury, and the admission in evidence of the one-half pint of liquor taken from the defendant could not have prejudiced his case, since under all the facts and circumstances in the case no honest jury could have returned any other verdict except guilty.

For the reasons stated, the cause is affirmed.

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


text:
    GEORGE WEIL v. STATE.

      No. A-6990.
    Opinion Filed April 12, 1930.
    (287 Pac. 752.)

      G. W. Sawyer, Boss Bizley, and R. B. Loofbourrow, for plaintiff in error.
    The Attorney General and P. K. Morrill, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county on a charge of larceny of domestic animal, to wit, one cow, and his punishment fixed by the jury, at two years’ imprisonment in the state reformatory.

The evidence of the state is that the defendant was operating the ranch of A. L. Fletcher, and that on the 20th day of November, 1926, he procured one William Mullenax to help him and, leaving the place about 7:30 o’clock in the evening, took the white-faced cow he Avas charged with stealing, to Liberal, Kan., and sold her to a Mr. Fast; that they reached Liberal about 12 or 1 o’clock; that this coav alleged to be stolen was the property of A. L. Fletcher; that defendant used at least a portion of the money received from the sale of the coav to make a payment on his automobile.

The defense of the defendant Avas that he Avas in charge of the ranch and cattle belonging to Fletcher and had permission from Fletcher to sell cattle from the premises. There is a clear conflict in the evidence; that of the state sustaining its theory that the cow was stolen, that of the defendant that he was a partner in the increase of stock on the ranch and had permission to sell cattle from said ranch. This conflict was settled by the jury in favor of the state. There is sufficient competent evidence in the record to support the verdict.

The defendant contends that the court erred in permitting the state to read the testimony of the witness, William Mullenax, taken at the preliminary hearing, for the reason that no sufficient showing of diligence was made to entitle the state to read the evidence. Defendant in his brief says:

“While we do not contend for a moment that the record was changed in any manner, we do contend, however, that the defendant’s substantial rights were violated and the statutes abrogated, when the court permitted this evidence to be read under the meager showing made at the trial of this case.”

The state in laying its predicate for the admission of the transcript of the evidence of the witness, called the sheriff, who testified that a subpoena was delivered to him in the case of State of Oklahoma v. George Weil, for witness William Mullenax; that he made diligent search for the witness in Texas county and was unable to find him; and that his whereabouts was unknown. This showing was sufficient to entitle the state to read the transcript of the evidence taken in the preliminary trial.

The defendant further contends that the evidence was inadmissible for the reason that the transcript was not taken by an official court reporter and not filed in the district court. The evidence was taken by a stenographer called by the county attorney and paid by the state. This stenographer made a transcript of her shorthand notes and identified the same and testified that it was a true and correct copy of the evidence of the witness William Mullen-ax, taken by her in the preliminary hearing of the defendant. The question raised here was passed on by this court in the case of Pierce v. State, 35 Okla. Cr. 67, 248 Pac. 654. In the case at bar the objection seems to be directed principally to the contention that there was not sufficient preliminary proof of the absence of the witness. The correctness of the transcript appears not to have been questioned in the lower court and is not questioned here. The state having made a sufficient showing of the absence of the witness from the jurisdiction of the court, the transcript of the evidence was properly admitted.

The defendant, next contends that the court erred in refusing to give to the jury appellant’s requested instruction No. 1. The court on its own motion gave the following instruction:

“The court instructs the jury that if you find from the evidence that the defendant honestly and in good faith believed he was authorized by A. L. Fletcher to take, carry away and sell the property mentioned in the information, you will find the defendant not guilty or if you have a rea,-sonable doubt as to whether the defendant honestly and in good faith, believed he was authorized to take, carry away and sell the property mentioned in the information, you will acquit the defendant.”

The defendant made no claim that he was the dAvner of the coav which he was charged with having stolen. He did claim, however, that under his contract with the owner of the animal stolen, he had a right to sell her. There is no evidence in the record to support the requested instruction. The instruction given by the court sufficiently covered the law of the case as applied to the facts established by the evidence and the theory of the defendant in his defense.

The defendant next complains'that the court erred in giving instruction No. 7, which went to the weight of the evidence and the credibility of the witnesses. This instruction is practically identical with the instruction given in the case of Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647; to the same effect is McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    Ex parte RAY TERRILL.
    No. A-7245.
    Opinion Filed April 12, 1930.
    (287 Pac. 753.)
    C. R. Reeves, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. The petitioner alleges that he is illegally restrained by the warden of the state penitentiary at Mc-Alester; that he is confined under a conviction from the district court of Pawnee county on a charge of robbery. He then assigns two1 reasons why he contends the judgment is void. The state demurred to that part of the petition in which it is claimed the judgment is void, and the demurrer was sustained for the reason that these allegations contain nothing that can be raised by habeas corpus. The third and remaining ground alleged by petitioner is. that he is receiving a different punishment from that imposed, and that he is deprived of rights to which he is lawfully entitled; that is, that he is prohibited from' writing-letters to friends and relatives excepting once per month, and is prohibited from having newspapers and reading-matter, and is confined in a cell five by eight feet, and is fed on bread and water, and in other ways enumerated has been subjected to cruel and unusual punishment. This, he contends, is unlawful, and may be relieved by habeas corpus.

The state denies that petitioner is or has been subjected to cruelty, and alleges, in substance, that petitioner has persistently violated the rules regulating the conduct of inmates of the penitentiary by attempting to send letters to persons outside without their having been passed by the warden, and which letters have shown an intention of petitioner to escape; that he is an habitual criminal, difficult to safely keep and to control; that he -has heretofore escaped from the state penitentiary at Little Rock, Ark., fiom the jail at Ardmore, Okla., and from the jail at Perry, Okla., and from the officers when they were attempting to deliver him to the penitentiary; and that the restraint imposed is no more than is necessary to secure his safe confinement.

Considerable testimony was taken by depositions which have been filed in support of the petition. The state has shown that petitioner in indicted for robbery in La-bette county, Kan.; that he is a fugitive from the state penitentiary at Little Rock upon a sentence for ten years for burglary and grand larceny; that he was under indictment in Hutchinson county, Tex., on a charge of murder ; that he is wanted by the United States authorities for the Eastern district of Oklahoma on a charge of robbing the United States mail;.that detainers from all of said places are in the hands of the Avarden. It is further shown that he escaped from the county jail in Ardmore in 1926; that he escaped in 1927 from certain officers who were returning him to the penitentiary at McAlester when Avithin a mile of the prison; that he is treated as other prisoners of his class, and is permitted to and does receive direct several newspapers, including two daily papers and two monthly magazines, and others from the prison library; that he is permitted to write to his relatives once each month, and, in addition has sent out other letters to his attorneys and friends; that he is what is termed a third-class prisoner, and. as punishment for infraction of rules had been handcuffed to the bars; that a large part of the time he is confined in what is termed solitary, a cell about six by eight feet containing a cot and lavatory; that prisoners so confined have an opportunity to take exercise once each week, and may communicate with prisoners in the cells on either side; that the front of the cell is open except for the barred door and an opening in the rear of some six or eight inches square. Petitioner testified that he had attempted to pass out two uncensored letters to his Avife, and on one occasion had engaged in a disturbance with some negro prisoners for which, he had been punished by being handcuffed to the bars from about 9 in tlie morning until 2:30 that night and for extended periods at other times. He admitted the escapes from the different institutions as alleged by the state. The state contends that habeas corpus will not lie to regulate the control, conduct, and discipline of the inmates of the state penitentiary.

The Legislature has provided a means for supervising and regulating the management of the state’s penal institutions, and has provided a method of redressing the grievances of inmates. Second 9205, Comp. Stat. 1921, is as follows:

“That the Board of Prison Control shall have the management and control of the penal institutions of this state, located at McAlester and Granite, Oklahoma, and may prescribe rules and regulations for the conduct and management thereof. * * *”

And section 9216, Comp. Stat. 1921, reads:

“Any convict' who may be penalized by having his merit marks or good time removed or who may have his health impaired by being placed in solitary confinement shall have the right to. make a Avritten report to the Board of Control, asking that an investigation be made, and the Board of Control on receipt of such report shall, if the case warrants in their opinion, cause an investigation to be made. Any warden of any penitentiary or reformatory who shall refuse to allow any convict to make such report as provided for in this section, shall upon being found guilty be subject to removal from office.”

In addition the commissioner of charities and corrections has the right of inspection, and to some extent supervision, of the treatment of inmates of penal institutions. Article 5, c. 1, Comp. Stat. 1921.

Habeas corpus is a collateral remedy, and is subject to the limitations common to collateral proceedings. The legal remedies provided by laAv should, as a general rule, be exhausted or denied before habeas corpus may be resorted to. We find no authorities directly in point upon the'- question raised in this case, but some of the cases incidentally or indirectly bear out the contention that, where a prisoner held by valid process is incarcerated in some place other than that provided by the judgment or a place not authorized by law, or where the punishment is different in kind from that provided by the judgment, the prisoner may be discharged or the court may require that the confinement be in the proper place or that the punishment be as imposed by the judgment, or such order may be made as justice requires. 29 C. J. 173, § 195; In re Johnson (C. C.) 46 F. 477; Com. v. Francies, 250 Pa. 350, 95 A. 798; Weems v. U. S., 217 U. S. 349, 30 S. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705; In re Medley, 134 U. S. 160, 10 S. Ct. 384, 33 L. Ed. 835.

It has been said that the courts do not have power to release a convict held under a valid process because of inadequate facilities or bad condition of the place of confinement. In re Ellis, 76 Kan. 368, 91 Pac. 81. This court has held that, where an accused is legally imprisoned pending trial, denial of his constitutional right to consult with counsel may be enforced by habeas corpus. State ex rel. Tucker v. Davis, 9 Okla. Cr. 94, 130 Pac. 962, 44 L. R. A. (N. S.) 1083. This case was followed and approved in Ex parte Rider, 50 Cal. App. 797, 195 Pac. 965.

The evidence introduced in this case discloses that in some particulars petitioner was accorded liberal treatment, but in other particulars the treatment' was harsh and unjust to even an insubordinate and vicious prisoner. It is unnecessarily severe to chain a prisoner by the wrists to the bar of a cell for the long period of time from 9 o’clock in the morning until 2 o’clock at night, where he must stand upright and have his arms elevated. It is also unnecessarily harsh and inhumane to confine a prisoner of whatever class in a solitary cell without opportunity for exercise other than a period of thirty minutes or such a matter once in a Aveek. Convicts in the state penitentiary for any offense are entitled to humane treatment and to no more restraint than is necessary to insure their safekeeping, preserve the morale, order, safety, and discipline of the institution.

If petitioner is subjected to mistreatment amounting to cruel and unusual punishment he may make complaint to the board of prison control under the provisions of section 9216, or to the Governor as the chief executive officer of the state, or to the commissioner of charities and corrections. In the event he is denied the right to make such complaint or in case of complaint if the abuses of which he complains, if they exist, are not corrected, he may resort to habeas corpus. Petitioner has made no attempt to pursue the remedies provided by law, and, until he has done so and been denied the right, or such complaint has proven unavailing, the collateral proceeding of habeas corpus may not be invoked.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    H. O. SUTTON v. STATE.
    No. A-7256.
    Opinion Filed April 12, 1930.
    (287 Pac. 727.)

      Clay Snodgrass, 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 the charge of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to be confined in the county jail for a period of thirty days. From which judgment the defendant has appeald.

The facts in the case are brief. Jack Ball, a deputy sheriff, of Kiowa county, testified he was in Hobart on the 3d day of February, 1927. About 8 o’clock Coots Sutton drove in to the Marland filling station, and Bill Murrel took a pasteboard box out of the car and carried it into the filling station. “I arrested Sutton and Clyde Harris and took them into the filling station and got the package; it contained one gallon and a quart of whisky. When the defendant Sutton drove in to the filling station, I was across the street east. When I went into the filling station, the package Bill Murrel took out of the car was in the northwest corner of the building; the package contained two half gallon and one quart jar of whisky. When I went into the filling station, 'Roy Wright, Frank Head, Bill Murrel and Coots Sutton were there.”

Bill Murrel testified he was working a.t the Marland filling station on the date mentioned. “When I first saw Sutton I was standing in the doorway and he backed up to the doorway and gave me a package. Roy Wright said something about taking the package and I received the package and took it to the north room of the filling station. Mr. Ball came to the filling station and took a box out of the north room; I guess he got the same box I took in there; the box I took in there came out of Coots Sutton’s car; he was driving a Chevrolet.”

Boy Wright testified he was at the Marland filling station on the night of February 3, 1927. He saw Coots Sutton at the filling station that night. The defendant, Sutton, drove up to the filling station and parked, and said he had a package he wanted to leave there. “About that time another car drove in, and I asked him to back up to the door so the other car could get into the doorway; I just noticed there was something in the car; Bill Murrel took the package into the station. About the time Murrel got in the door, Jack Ball walked up and arrested Sutton; he went in the filling station and came out. I did not see the box the defendant handed to Bill Murrel any more after Bill took it into' the filling station. I don’t know whether the box Ball took was the same box Bill Murrel received from Sutton and carried into the station; there was a box or two and a suitcase in the filling station before this box was taken in there.”

Clyde Harris, one of the parties arrested by Jack Ball, testified with reference to being with Sutton the greater part of the day, and that he put some clothes in a box he wanted the defendant to leave at the filling station for him.

The defendant in his own behalf stated the package he got from Clyde Harris contained clothes. They got to Hobart about 7:30. They drove Harris’ car. “Clyde told me to meet him at the Marland filling station, that he had a box he wanted to leave at the filling station while he filled a date with a girl friend of his. When I got to the filling station I inquired of Roy Wright if he had seen Clyde Harris and told him Clyde was to see me there. Roy asked me to back up so another car could drive in and Bill Mur-rel come out and got the package and carried it into the filling station. The package Jack Ball got in the filling station was not the same package that Bill Murrel had taken out of the car into the filling station. If there was any whisky in the car, I did not know it. I had been in the car practically all afternoon. I first saw Bill Murrel when Roy Wright asked me to back the car up and Bill come and got the package out of the car. I was in the driveway next to the filling station. I was standing, in front of the filling station when Jack Ball came in. I saw Jack Ball when he came out of the filling station with the pasteboard box about a foot square.” This is in substance the testimony.

The defendant assigns two errors alleged to have been committed by the trial court; the first being the trial court erred in overruling the defendant’s motion for a new trial; second, error of the court in refusing to give requested instruction of the defendant. The requested instruction of the defendant was upon the question of circumstantial evidence. An instruction on circumstantial evidence is only required to be given by the court when all the evidence upon which the state relies for a conviction is circumstantial. In this case there is no circumstantial evidence relied upon by the state; the testimony of the state is positive that the defendant drove up to the filling station and a pasteboard box was taken out of the car he was driving. The officer testified he went to the filling station and found the box which had been taken out of the defendant’s car which contained one gallon and one quart of whisky. The defendant’s testimony only tends to’ show that the box taken out of the car should have contained clothes of Clyde Harris, and, if there was any whisky in the box taken out of his car, he did not know it.

The testimony in this case is sufficient to sustain the conviction. Finding no error in the record, the case is affirmed.

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


text:
    ED HARRIS v. STATE.
    No. A-7132.
    Opinion Filed April 12, 1930.
    (287 Pac. 1085.)
    J. S. Garrison, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Garvin county for selling one pint of corn whisky to one Willie Hays, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of thirty days.

The plaintiff in error questions the sufficiency of the evidence, but a careful examination of the record reveals sufficient competent evidence to> support the verdict of the jury.

The plaintiff in error also contends that the court erred in admitting immaterial evidence. The court will not reverse a case on the ground of the admission of immaterial evidence, unless from an examination of the record it clearly appears the rights of the defendant were prejudiced thereby. Bates v. State, 46 Okla. Cr. 401, 285 Pac. 847.

We find no error sufficient to warrant a reversal of the case, and for the reasons stated the cause is affirmed.

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


author: PER CURIAM.

text:
    Ex parte O. E. JOSEPHSON.
    No. A-7277.
    Opinion Filed April 19, 1930.
    (287 Pac. 1117.)
    Mathers & Mathers, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

This is an original proceeding in habeas. This is a companion case to that of Ex parte Bales, 42 Okla. Cr. 48, 274 Pac. 485. When the writ in that case was awarded, the state dismissed the prosecution in this case in the lower court.

The case is dismissed.