text:
    SAMUEL KUTZ v. STATE.
    No. A-10653.
    Jan. 29, 1947.
    (177 P. 2d 139.)

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

The defendant, Samuel Kutz, was charged by information filed in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor. A jury was waived, the defendant was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and costs, and has appealed.

For a reversal of the judgment of conviction, it is first contended that the description in the search warrant is ambiguous and insufficient to authorize a search of the premises of the defendant.

The description of the premises to be searched as set forth in the warrant is as follows:

“First frame dwelling East of Baash Ross Tool Company, given as 1559 SE 29th Street, adjacent to Okla. City in Oklahoma County, Oklahoma.”

The defendant testified at the hearing on the motion to suppress evidence that his residence is the first frame dwelling east of the Baash Ross Tool Company, but said that his residence is located at 1507 S. E. 29th street. Counsel contends that that portion of the description which recites “1559 S. E. 29th Street” refers to defendant’s residence, and since such street number is not the address of defendant’s residence that it does not authorize a search of defendant’s premises.

The proof of the state at the hearing on the motion to suppress evidence was that the Baash Ross Tool Company was located at 1559 S. E. 29th street. That it is a large warehouse with a huge sign in front of it with the descriptive words “Baash Ross Tool Company” with the street number “1559 S. E. 29th Street” thereon. That the street number set forth in the warrant was descriptive of the location of the Baash Ross Tool Company and did not purport to be the street number of defendants residence which was the property to be searched. It was further pointed out that if the officer had known the street number of defendant’s residence, it would not have been necessary to have inserted that descriptive provision relating to the house to be searched as “first frame dwelling east of Baash Ross Tool Company.”

It is the settled law in this jurisdiction that the description in a search warrant must be sufficient to enable the officer executing the warrant to locate the premises to be searched without the aid of any other information save that contained in the warrant. Hughes v. State, 83 Okla. Cr. 16,172 P. 2d 435; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109.

All of the proof showed that the premises of the defendant which were searched by the officers was the first frame dwelling east of the Baash Ross Tool Company. It is our conclusion that an officer unfamiliar with the location of defendant’s residence would have had no difficulty in locating it from the descriptive averments in the warrant without seeking aid from any other source than that set forth in the warrant.

It is next contended that the search warrant is void for the reason that it was issued in the justice of the peace court of Otis James in Oklahoma City and directed to be served on premises located outside of the justice of the peace district from which it was issued.

It was stipulated and agreed at the trial that the premises described in the search warrant were located in Greely Township, and that Justice of the Peace Trammell was the justice of the peace for Greely Township. That the warrant was issued by Otis James, a justice of the peace of Oklahoma City, and that his justice of the peace district does not extend beyond the city limits of Oklahoma City.

The exact question here presented has never been before this court for determination, although there have been several decisions which have a bearing on the issue involved. Our Constitution (art. 7, sec. 18) creates the office of justice of the peace, and further provides that courts of justices of the peace shall have jurisdiction coextensive with the county, as an examining magistrate in all felony cases, and concurrent jurisdiction with the county court in civil cases where the amount involved does not exceed $200 exclusive of interest and costs, and concurrent jurisdiction with the county court in all misdemeanor cases in which the punishment does not exceed a fine of $200 or imprisonment in the county jail for not exceeding 30 days, or both such fine and imprisonment.

Counsel for defendant has directed our attention to the statutes which provide:

“No person shall be eligible to the office of justice of the peace or constable who is not a legal voter of the district, township, city or town for which he is elected or appointed.” 39 O. S. 1941 § 3.
“Justices of the peace and constables shall reside and keep their offices in the district from which they are elected.” 39 O. S. 1941 § 6.

In Kuhn v. State, 70 Okla. Cr. 119, 104 P. 2d 1010, 1011, this court held:

“Justices of the peace are courts of, limited jurisdiction, and statutes conferring jurisdiction on them are to be strictly construed and are not to be aided or extended by implication beyond their express terms.”

It is contended by counsel that the cases of Harrington v. State, 66 Okla. Cr. 310, 91 P. 2d 787; Berry v. Stated 10 Okla. Cr. 308, 136 P. 195; Leiber v. Argaubright, 25 Okla. 177,105 P. 341; and Ex parte Robinson, 56 Okla. Cr. 404, 41 P. 2d 127, support his contentions.

In Harrington v. State, supra, a conviction for the unlawful possession of intoxicating liquor was reversed by this court for the reason that the justice of the peace who issued the warrant for the search of defendant’s premises was not in his judicial district at the time he issued the warrant. This court, in disposing of that appeal, stated:

“The criminal jurisdiction of a justice of the peace extends throughout the county in which he is elected or appointed, but he is required to reside and exercise his jurisdiction within his district, and the administration of an oath verifying a complaint for search and seizure and the issuance of a search warrant thereon, at a place beyond the limits of his district. Held, proceedings void for want of jurisdiction. * * *
“A justice of the peace being a township or city officer under the Constitution and laws of this state, he can perform his official acts only in his own township or city district.”

In the case of Berry v. State, supra, this court merely held that a justice of the peace elected in one township could not lawfully hold his court outside of the territorial limits of the justice of the peace district to which he had been elected. A conviction for prejury was reversed for the reason that it was predicated on testimony alleged to have been given in a void proceeding before a justice of the peace who was attempting to hold court outside of the district for which he was elected.

Leiber v. Argaubright, supra, as we view the record, does not support counsel’s contention, but like the above two cases rather strengthens the position of the state. In the body of the opinion (25 Okla. 177, 105 P. 342), it was there stated :

“* * * While the jurisdiction of the justice of the peace is territorially as extensive as the county within which the township in which he is elected is located, yet to our minds the provision of the statute requiring him to reside within his township and to hold his office therein contemplates that he shall be and remain within his township for the transaction of his official business * *

In Ex parte Robinson, supra, this court by dicta followed the rule laid down in the above-quoted cases when they stated that a justice of the peace of Konawa Township could not hold a preliminary hearing at a place outside of his justice of the peace district; however, Judge Edwards denied the writ of habeas corpus for the reason that the question raised by the petitioner in that case had been waived by his pleading to the information upon his arraignment in the district court.

None of these cases involve the legal right of the justice of the peace to issue process to be served on persons living in the county where his justice of the peace district is located, but not residents of his justice of the peace district. The constitutional provision hereinabove quoted gave justices of the peace jurisdiction co-extensive with the county in certain limited matters therein enumerated. We can find no statutory provision limiting the authority of a justice of the peace to less than is set forth in the constitutional provision. The cases cited by counsel above quoted would have been authority for his position if the proof had shown that Otis James, the justice of the peace who issued the warrant, did so at a time when he was outside of his justice of the peace district. In other words, if a complaint for a search warrant had been presented to Judge James while he was in Greely Township, he would have been without jurisdiction to have acted in said township as the above decisions and the statutes of this state require all the acts of the justice of the peace to be performed in the district in which he was elected or appointed.

Title 37, O. S. 1941 § 84 authorizes a justice of the peace to issue a search warrant directed to any peace officer in the county whom the complainant may designate commanding him to search the premises described in the affidavit for the search warrant.

It is our opinion, after consideration of the constitutional and statutory provisions, coupled with the reasoning given in support of the conclusions reached in the cases hereinabove cited, that a justice of the peace must transact all of his business within the district for which he is elected or appointed, but that he may issue process while acting within his district for service on persons residing in the county but outside of the justice of the peace district of the justice of the peace who issues the process.

Counsel present the further contention that it is questionable whether the affidavit was signed before the warrant was issued, and for that reason the issuance of the search warrant was illegal and void. An examination of the record does not support counsel’s contention. For that reason, we consider this assignment without merit.

The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    ALVIN NEIGHBORS v. STATE.
    No. A-10582.
    Jan. 29. 1947.
    (177 P. 2d 133.)

      ,W. O. Moffett, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Alvin Neighbors, was charged in the district court of Tulsa county with the crime of murder. He was tried, convicted of manslaughter in the first degree and sentenced to serve a term of 20 years in the State Penitentiary, and has appealed.

The only assignment of error relied upon by defendant for a reversal of this case is error of the court in refusing to grant counsel, appointed by the court, a reasonable time to prepare for trial, to the end that they might intelligently and properly represent the defendant, and thereby forced, coerced and intimidated the defendant into waiving his right to a trial by jury, and in effect deprived the defendant of his liberty without due process of law.

The brief of the state gives a clear and condensed statement of the issues, and is as follows:

“It is a well-settled rule of law in this state that a defendant charged-with a crime is entitled to a reasonable time to prepare for trial, and what is a reasonable time will depend upon the facts and circumstances surrounding each particular case. Therefore, in order to reach a decision as to whether this defendant has been deprived of his liberty without due process of law for the reason that his counsel have had insufficient time in which to prepare for trial, it will be necessary to recite, step by step, all of the facts and circumstances in connection with the employment or appointment of counsel from the time the arrest was made.
“The defendant in this case is alleged to have made an attack upon a Mr. Charles' E. Gorrell on the 29th day of March, 1944, and as a result of that attack Mr. Gorrell died on the 30th day of March, 1944. The defendant was arraigned in the court of common pleas of Tulsa county, Oklahoma, on the 31st day of March, 1944, on a charge of murder. The defendant plead not guilty and his preliminary trial was set for April 6, 1944; a preliminary hearing was had in this case on the 6th day of April, 1944, and, according to an affidavit attached to and made a part of the defendant’s brief, he was represented at all times during said preliminary hearing by Frank Hickman, an attorney practicing in, Tulsa, Oklahoma. At the conclusion of this hearing the defendant was bound over to the district court without bond. On the 28th day of April, 1944, there was an order of the court setting the defendant’s case for arraignment in district court on May 3, 1944. The record further shows that on May 3rd, 1944, the defendant appeared in open court for arraignment with his counsel, Frank Hickman. The information was read and the defendant waived time to plead and entered a plea of not guilty and was given a copy of the information with its endorsements thereon, and he was again remanded to the sheriff. During this ar•raignment, several others .were also arraigned, and the court advised them all that if they could not get- a lawyer that he would appoint the public defenders to represent them, and this defendant advised the court that Frank Hickman was his attorney. On the 7th day of June, 1944, the defendant’s case was called for trial and the defendant appeared in open court without counsel. The court sent for Frank Hickman and was advised by him that he had never ' been employed to represent the defendant in the district court and that the defendant and his wife both knew that he had not been so employed, that the defendant’s wife had talked to him about employing him, but had not employed him. The record, itself, does not show Mr. Frank Hickman’s withdrawal from the case, other than the statements above referred to. The court then appointed the public defenders, Harry Dyer and W. C. Peters, at 9:30 that morning, and at 10:10 that same morning the case was again called for trial, and the defendant, through his attorney Harry Dyer, moved the court to strike the case from the docket for the reason that they had not had sufficient time to prepare for trial. And, after argument of counsel, on the motion for continuance, the following proceedings were had, to wit:
“ ‘The Court: All right, let the record show that in the case of State versus Alvin Neighbors, that the defendant is present in open court and represented by counsel and that he waives a jury and consents that his case may be tried by the court if it is stricken from this assignment. Let the record show that the case is stricken from the assignment, to be reset at a later date and to be tried before the court, without a jury.’
“And thereafter, on the 27th day of July, 1944, the defendant’s case was set for trial on the non-jury docket of August 1, 1944. And thereafter, on the 31st day of July, 1944, the case was passed for trial to August 10, 1944, by agreement. And then on the 11th day of August, 1944, the case was again called for trial, both sides announced ready and the record shows that the defendant was present in open court with his counsel, Harry Dyer, and W. C. Peters, public defenders, and withdrew Ms plea of not guilty and filed a demurrer to the State’s information without prejudice to trial. The demurrer was overruled and the defendant re-entered his plea of not guilty. The assistant county attorney then made his opening statement to the court and the case was tried to the court. At the end of the State’s case in chief, the defendant demurred to the evidence, which demurrer was overruled and the defense then rested its case, and the court announced that he found the defendant guilty, and fixed his punishment at confinement in the State Penitentiary for a term of 20 years and sentence day was set for August 15, 1944. The defendant filed a motion for a new trial, which was overruled, and notice of intention to appeal was given in open court, and this appeal is brought by the defendant through his attorney, W. O. Moffett.”

Based upon the above facts, it is contended by defendant that his liberty has been taken without due process of law, because the court refused to grant a continuance so that newly appointed counsel, the public defenders, could have more time to prepare for trial, and by such refusal forced the defendant to waive a trial by jury.

As a matter of fact, the record as above outlined does not bear out the contention of defendant. It is shown that the motion for continuance was granted insofar as the trial of defendant was concerned. The public defenders were appointed on June 7, 1944, and upon this date the case was stricken from the assignment to be set at a later date. On July 27, 1944, the case was set for trial for August 1, 1944, and on July 31,1944, was passed to August 10, and defendant was not tried until August 11, 1944. This was 64 days from the time attorneys were appointed until defendant was tried. Motion for continuance was not made, and counsel made no suggestion that they had not had ample time to prepare for trial. When the motion for new trial was filed, no contention was made that sufficient time liad not been given defendant to prepare for trial. In fact, 126 days had passed since the preliminary examination, and 64 days since the motion for continuance was interposed.

The record does not bear out the defendant’s contention that the court forced him to waive a trial by jury. The minutes of the clerk upon this point state:

“Defendant present in open court without counsel. Public defender appointed to represent defendant. Defendant with consent of counsel waives trial by jury and consents that case may be set for trial' on non-jury docket at a later date. Defendant remanded to custody of sheriff.”

This court does not know what transpired at the time his order was entered, other than shown by the record, which reveals that the trial by jury was waived by defendant and the case was set for trial on the nonjury docket at a later date. We have often held that the right of trial by jury is a personal right which one has the right to waive. Ex parte Hazel, 80 Okla. Cr. 66, 157 P. 2d 225; Ex parte Carpenter, 80 Okla. 78, 157 P. 2d 231; Norman v. State, 81 Okla. Cr. 78, 160 P. 2d 739; Hughes v. State, 83 Okla. Cr. 16,172 P. 2d 435-439, and cases cited.

We have carefully examined the cases cited by the defendant and by the state to support their respective contentions. We have also examined the recent case by this court, Ex parte Cannis, 83 Okla.. Cr. 113,173 P. 2d 586, decided on October 16, 1946, in which this question was considered. In that case, it was decided that the trial court had abused its discretion in refusing to give attorneys for defendant sufficient time, after their appointment, to prepare for trial. The attorneys there appointed were the public defenders, as in this instance, but the facts in the two cases are very different. It is unnecessary to unduly lengthen this opinion by quoting extensively from that case. It may he read by those interested. However, it may be noted that in the Cannis case, the attorneys were appointed at 9:30 on May 12, 1938, and defendant’s trial was commenced at 1:30 in the afternoon on the same date, and a verdict was reached by 5:30 in the afternoon that day.lt has already been noted that in the case at bar a continuance of 64 days was had before defendant was brought to trial, and thus ample time given attorneys who were appointed to defend him to prepare for trial. There were other facts and circumstances in the Cannis case which do not here appear.

On the date of the trial, August 11, 1944, defendant did not ask for a continuance, and no suggestion was made that he be granted a jury trial, that the court had refused to give him a jury trial, or had caused him to waive any right to a jury trial. In so far as the record is concerned, it appears that defendant voluntarily waived his right to a jury trial, and agreed to be tried before the court. While in our opinion it might have been the better policy to have granted a jury trial had he asked it, yet, his legal right to waive a trial by jury can not be questioned.

By many decisions it is the well settled and established rule in this state that an application for continuance in a felony case is addressed to the sound discretion of the trial court, and unless an abuse of such discretion clearly appears, this court will not reverse the judgment for a refusal to grant a continuance. The case of Prescott v. State, 56 Okla. Cr. 259, 37 P. 2d 830, is a leading case, and has many facts similar to those in this case. Many of the earlier decisions are cited and reviewed therein. While the question of refusal to grant a jury trial is not discussed, the reasoning therein is applicable in many instances to the facts here presented.

It is revealed by the evidence in this case that defendant was charged with the crime of murder, in that he killed Charles E Gorrell by hitting and beating him over and about the head with a glass Seven-Up bottle filled with salt. This occurred between 6 and 6:30 in the afternoon pf March 29,1944, at Sam and Mary’s Bar, in the city of Tulsa. The defendant, with Virgil Nute and Edna Norton, had gone to the tavern about 3 o’clock in the afternoon, and had been drinking beer. Mr. Gorrell arrived around 6 o’clock, and sat down in one of the booths. He had drunk one beer, and the three parties above named went over and sat down with him, and the four ordered beer. They were served by Alva Eraizer, one of the waitresses, who testified for the state. She testified that after serving the beer, she asked who was going to pay for it, and the defendant said, “Mr. Gorrell is going to pay for it.” Mr. Gorrell answered, “No, you ordered it, you pay for it.” The defendant replied, “No, you pay for it.” and Mr. Gorrell paid, giving the waitress a five dollar bill. The girl took the money and started to the cash register, behind the bar, and before reaching the bar she heard licks that sounded like bone cracking. She immediately turned around and saw the defendant striking Mr. Gorrell over the head with the Seven-Up bottle which was filled with salt. She rushed back to the booth, and the defendant had his arm around the neck of Mr. Gorrell, and was hitting him with the bottle. She heard a number of licks, and saw defendant hit Gorrell three of four times after she reached the booth. She also testified that when defendant released Mr. Gorrell, his body slumped down on the seat, and then to the floor, and defendant stepped out over it, and started out of the building, but was stopped by Sam Chissoe, the proprietor of the tavern, who requested that no one leave the premises until the officers could be called. Her evidence was corroborated by both Mr. Chissoe and his wife, who were present in the tavern at the time and heard the first licks struck, and both of whom immediately went to the booth, the scene of the difficulty. All of the witnesses testified that immediately after the difficulty the defendant started toward the front door, but was stopped by Mr. Chissoe, and that he left by the rear door. He was later arrested by the police officers.

Physicians were placed upon the stand and testified to the wounds upon the deceased, one of which was a concussion at the base of the brain, and which caused his death. Mr. Gorrell died about 6 o’clock the morning of March 30, 1944.

None of the witnesses testified to any act or demonstration between the defendant and deceased, other than heretofore stated.

Defendant did not take the witness stand, and offered no evidence.

The court before whom the case was tried without the intervention of a jury, found the defendant guilty of manslaughter in the first degree, and sentenced him to serve a term of 20 years in the State Penitentiary.

In motion for new trial, and the assignments of error, it is urged that the court erred in refusing to sustain a demurrer to the evidence. From the above statement, we find that the court did not err in refusing to sustain such demurrer.

We are of the opinion that the defendant was not denied any of his constitutional or statutory rights; that he received a fair and impartial trial, and that he was not deprived of his liberty without the process of law.

For the reasons above stated, tbe judgment of the district court of Tulsa county is affirmed.

BRETT, J. concurs. JONES, J., not participating.


author: BRETT, J.

text:
    JACK EDWARDS v. STATE.
    No. A-10652.
    Feb. 4, 1947.
    (177 P. 2d 143.)

      John L. Ward, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J; Watts, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Jack Edwards, was charged in the court of common pleas of Tulsa county with the offense of unlawfully having in his possession, certain intoxicating liquor, to wit: Two pints of whisky, with the intent to barter, sell, etc., in violation of the prohibitory laws. The offense is alleged to have occurred on January 25, 1945.

To the information, the defendant filed a motion to suppress the evidence, alleging an unlawful search and seizure. After a hearing on the motion by the court on April 2, 1945, it was overruled. The defendant thereupon waived a jury, the case was tried, and the defendant convicted and sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The facts upon which the foregoing was based are as follows: On January 25, 1945, two federal narcotic officers, together with two deputy sheriffs, M. E. Gibson and Grover Wagoner, went to the defendant’s residence, under the authority of a search warrant authorizing a search for marihuana only. The search of the premises was fruitless. As they were coming out of the house, they observed an automobile parked in the street, along the curb, and in front of the house. The record is not clear as to what the federal narcotics officers said to the defendant about seaching the automobile. In fact, Mr. Grover, the only witness who testified concerning what was said by the federal officers about waiver of consent on the part of the defendant, said: “I don’t know what they told him.”

The federal officers were not called as witnesses. The state officers admitted, that they said nothing to the defendant relative to searching the automobile.

The state relies upon the fact that the defendant replied to whatever the federal officers said to him in regard to the searching of his automobile: “Why sure — look it over; you won’t find anything in there.” Also that the defendant unlocked the car and the turtleback.

The record is clear that no one saw any whisky in the car before the search was commenced. It is not clear who opened the doors, though it does show that they were opened and the federal officers were searching when Mr. Glover and Mr. Gibson approached the automobile. The officers found no marihuana but they did find two pints of whisky. Mr. Gibson testified, in this connection, as follows : “I walked up to the car. The doors were open and. the federal men were looking through it and there was one bottle of whisky and I picked it up and reached under the seat and pulled out another one.” His testimony further showed that as he approached the automobile, he could see one pint of whisky lying on the floor-board of the car. The foregoing statement of the evidence contains all that is pertinent to a decision on the issues herein involved.

Summarized, the contentions of the parties are set forth in the following language:

The defendant contends that the search was made in violation of his constitutional rights, and, that the court should have sustained his motion to suppress.
The state contends that, by his words and his actions, the defendant waived his constitutional rights and gave his consent to the officers to search his automobile without a warrant; and,
That the search was voluntarily consented to, and, when the pint of whisky was found on the floor-board of the car, a misdemeanor was thereby committed in the officers’ presence, and no warrant was needed.
Upon these facts and these issues, the decision of this court must turn.

The right of search and seizure is in derogation of the guaranties of the Constitution of the United States, the State of Oklahoma, and against the invasion of the privacy of the people. This guaranty has long been extended to include automobiles. Suffice it to say that these guaranties were born of the pre-revolution days, when the homes of the people were invaded by the British Bed Coats and searched with or without the slightest reason, provocation, or authority of law. It was from such experiences that the constitutional barriers against its wrongful use have been erected. But the necessities of the law and its effective enforcement required that officers of the law be extended the right to search and seize. This right, in proper cases and when properly authorized and executed, was found to be ah essential adjunct to proper protection to the public against law violators. It was recognized as an essential instrument in the detection and suppression of crime, and in the disclosure and seizure of contraband and the instruments of crime.

The people recognized that in granting the right to search and seize, they were doing so in derogation of one of their most sacred rights. To prevent abuses, its use was permitted under strict prescriptions of law. The barriers, which the people erected to prevent its misuse, are, the 4th Amendment to the United States Constitution, which reads, in part, as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * *

Article 2, section 30, of the Bill of Rights of the Constitution of the State of Oklahoma, reads in part, as follows :

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches ¡or seizures shall not be violated, * *

These provisions, this court has held, secure the individual in his person, his home, and his property, from invasion through unbridled and unrestrained executive or administrative will. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Best v. State, 32 Okla. Cr. 89, 240 P. 159; Keith v. State, 30 Okla. Cr. 168, 235 P. 631; State v. Coburn, 68 Okla. Cr. 67, 95 P. 2d 670.

Moreover, it has also been held that the protection against unlawful search and seizure extends to all equally, those justly suspected or accused, as well as to the innocent. Wallace v. State, 42 Okla. Cr. 143, 275 P. 354.

The constitutional provisions in the Bill of Rights do not prevent all searches and seizures but only those that are unreasonable and in violation of law. However, it is not permissible under such provisions to whittle away the substantial guaranties, limiting the use of a search warrant, and, thereby, permit an abuse of its use. Abbott v. State, 30 Okla. Cr. 98, 235 P. 550. To prevent the abuse of the right to search and seize, the provisions, under which the right is created, must be strictly construed. However, it is not to be so strictly construed as to thwart the reasonable and proper efforts of officers of the law to detect and prevent crime. These principles apply to searches made with or without a warrant, and to automobiles, as well as private dwellings. Strong v. State, 42 Okla. Cr. 114, 274 P. 890; Perry v. State, 72 Okla. Cr. 149, 114 P. 185.

One suspected of committing crime, under the law, has a right to demand that the officers obtain a search warrant before a search is made of either his premises or his automobile. This constitutional immunity, however, is a personal privilege and may be waived. Short v. State, 48 Okla. Cr. 320, 290 P. 934; Cook v. State, 44 Okla. Cr. 226, 280 P. 626; Baker v. State, 35 Okla. Cr. 62, 248 P. 846; Caines v. State, 28 Okla. Cr. 353. 230 P. 946; Boswell v. State, 26 Okla. Cr. 116, 222 P. 707; Hurst v. State, 25 Okla. Cr. 102, 219 P„ 151.

The first question involved in the case at bar is: “Do the facts herein involved make out a case of waiver on the part of the defendant.” The officers had no search warrant to search the defendánt’s car. Therefore, they were without right so to do unless the defendant, by words or actions, waived his right to require a search warrant, which he may do.

In cases where a waiver is claimed to have been made, if statements are made by federal officers, in the presence of state officers, as a predicate for a search, it is the duty of the state officers, who seek to make a case for the state on such a search, to at least hear what was said, to obtain the accused’s consent for the search, especially when the federal officers are not called as witnesses. In the absence of such showing, the defendant’s words and acts could not be voluntary, intentional, or sufficient to constitute an invitation to search. To assume so would be to read into the record, facts not proved. It is fundamental that a waiver must be proved by the party alleging it, 63 C.J. 309. This proof must be clear and convincing, that the waiver was a free and voluntary act, as was said by Judge Barefoot in Pritchett v. State, 78 Okla. Cr. 67, 143 P. 2d 622, 623, and by Judge Jones in Dawson v. State, 83 Okla. Cr. 263, 175 P. 2d 368. In the absence of a showing as to what was said to the defendant, before the search commenced, we are forced to conclude that the defendant was not placed in a position by the officers to knowingly, intentionally, freely, and voluntarily waive his right to demand a search warrant. His words, “look it over; you won’t find anything”, and his act of unlocking the car, constituted nothing more than an expression that he would not resist the officers’ exercise of authority. Therefore, the facts in this case are not sufficient to make out a case of voluntary consent and to constitute an invitation to search his car.

The following cases support the foregoing position: Prichett v. State, supa, wherein the defendant said, “you don’t have to have a search warrant; just go ahead”; Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, 1110, wherein, officers armed with a warrant, advised defendant they wanted to search her premises, to which she said, “Go ahead and search; there is no whisky here.” In both of the foregoing cases, the court said that, such a statement “is not to be construed as an invitation to search * * * but rather as a statement of the intention not to resist search, under the warrant.” This rule, laid down in the cases supra, is supported by the following cases: Denton v. State, 62 Okla. Cr. 8, 79 P. 2d 135, 139, an able opinion by Judge Barefoot, wherein, the defendant’s purported waiver was based upon the statement, “that is fine and dandy, come right ahead”; Mullins v. State, 75 Okla. Cr. 417, 133 P. 2d 239; the latest case from this court, Dawson v. State, supra; Perry v. State, 72 Okla. Cr. 149, 114 P. 2d 185, which is a case substantially similar to the case at bar and in which Judge Jones cites, with approval, Evans v. State, 34 Okla. Cr. 173, 245 P. 912, wherein the court said: “A private conveyance may not be searched on suspicion without a search warrant.” He also cited, with approval, Combest v. State, 51 Okla. Cr. 38, 299 P. 920, 921, wherein, the court said [72 Okla. Cr. 119, 114 P. 2d 186]: “It was shown that officers had a search warrant for the search of certain premises and searched an automobile parked on the street in front of the described premises.” The court stated [51 Okla. Cr. 38, 299 P. 921]: “It is also argued that the search of the automobile sitting in front of defendant’s house was unlawful and evidence obtained thereby inadmissible. With this contention we are also in accord. The officers had no warrant to search the automobile and the search was unlawful. Smith v. State [48 Okla. Cr. 115], 289 P. 792; Bowen v. State [50 Okla. Cr. 36], 295 P. 623.” Under these cases, we are of the opinion the search of the car, from the beginning, was without authority of law.

The state’s contention that, when Officer Gibson walked up to the car and saw the pint of whisky on the floorboard, that the defendant had thereby committed a misdemeanor in the presence of the officers and was subject to arrest, is without merit. The authorities cited by the state in support of that contention are not in point. The cases relied on by the state are cases wherein the officers saw the whisky or cartons which were labeled “whisky”, through the window in plain sight and the search followed. Certainly, an officer has a right to search an automobile when he sees whisky through the window or can ascertain, through one of his senses, that a misdemeanor is actually being committed in his presence. In the cases relied upon by the state, the discovery of the misdemeanor was made, independent of a search, and not incident to a search without a warrant. No such state of facts prevails in the case at bar; here, the officers did not know of the two pints of whisky until after the search was begun. The discovery of the whisky was, therefore, incident to an unlawful search and not independent of and precedent to the search. The search of the automobile in the case at bar, being made without a warrant, was unlawful and being unlawful from the beginning, is not made lawful by the discovery of the two pints of whisky. 56 C.J. 1184; Dean v. State, 37 Okla. Cr. 396, 258 P. 812; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520. The search must be justified by the steps that precede it, United States v. Two Soaking Units, D.C., 44 P. 2d 650. These steps must be lawful in their entirety; Jokosh v. State, 181 Wis. 160, 193 N.W. 976. This court has held that the search of a car by an officer without a warrant or knowledge that the car contained whisky, is illegal and that the evidence so obtained is inadmissible. Strong v. State, 42 Okla. Cr. 114, 274 P. 890; State v. Coburn, 68 Okla. Cr. 67, 94 P. 2d 670; Perry v. State, 72 Okla. Cr. 149, 114 P. 2d 185.

We are of the opinion that the officers in the case at bar did not know that there was whisky in the automobile until after the search had commenced. This being true, the search already commenced, without a warrant and not being supported by a waiver, cannot be justified on the contention that a misdemeanor had been committed in the presence of the officers when the officer saw, through the open door, which had been opened by the federal officers making the search, the one pint of whisky lying on the floor-board of the car.

The record in this case, being insufficient to support a valid search of the defendant’s car and seizure of its contents, the trial court should have sustained the defendant’s motion to suppress. The case is therefore reversed, with directions to discharge the defendant.'

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


text:
    WILLIAM A. COTTON v. STATE.
    No. A-10639.
    Feb. 5, 1947.
    (177 P. 2d 155.)

      Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, William A. Cotton, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, to wit, 25 pints of tax-paid liquor; was tried by the court without a jury, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

Defendant was charged jointly with his wife, Lou Eva Cotton, with the possession of the above described intoxicating liquor at their home in Oklahoma City, on January 3, 1945. Defendant was found guilty, and his wife, Lou Eva Cotton, was found not guilty.

The only contention of defendant is that the evidence was insufficient to sustain the judgment and sentence. As a basis for this contention, it is argued that the evideuce did not show that defendant was in possession of the liquor for the reason that the premises where the liquor was found by the officers was not shown to be in the possession of defendant.

We have carefully examined the record and the search warrant which was introduced in evidence. The description in the search warrant was entirely sufficient to describe the premises as the home of the defendant and his wife. His name was stated therein. The evidence revealed that a toolhouse was situated on the front part of the lot. It was unoccupied, and defendant’s home was located on the rear of the lot, as described in the search warrant. The liquor was found in three different places on the premises, part being buried in the chicken house, part of it in the yard or lot, and part of it in a tool box by the chicken house door. Defendant was not present at the time the officers searched the premises, but his wife was there. She testified that she and defendant occupied the premises, and that she did not know to whom the liquor belonged, and that it did not belong to her. Defendant did not take the witness stand to deny that the liquor belonged to him, or that if it did, that it was for a lawful purpose. Under the law, the possession of more than one quart of intoxicating liquor is prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquor. 37 O.S. 1941 § 82.

This case was tried before the court without the intervention of a jury. Defendant and his wife were jointly charged. An officer testified that the wife of defendant stated at the time of the search that the liquor belonged to her husband. This statement, not being made in presence of the husband, would not be binding on him. The court so ruled at the time, stating: “The court only considers it so far as her defense is concerned.” The statement was admissible as for or against her. The court later found her not guilty. This statement, made before the court and not before a jury, was not prejudicial.

The facts in the case of Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293, cited by defendant, are not applicable to the facts here presented. That case involved the search of a rooming house, with many occupants, and not simply a residence occupied solely by defendant and his wife. There the defendant took the witness stand, and denied any knowledge or ownership of the liquor and subjected himself to cross-examination by the county attorney.

We find that the evidence was sufficient to sustain the judgment and sentence herein, and for the reasons herein stated, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.


author: BBETT, J.

text:
    JAMES BOULDING v. STATE.
    No. A-10645.
    Feb. 5, 1947.
    (177 P. 2d 152.)

      Pierce & Pierce and A. L. Brook, all of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   BBETT, J.

The defendant, James Boulding was charged by information in the district court of Muskogee county, Okla., on November 8, 1944, with the offense of maiming one B. H. Jarnigan, The information alleged, in substance, that on September 24, 1944, the defendant James Boulding did knowingly, willfully, wrongfully, unlawfully, and feloniously, with premeditated design to injure one B. H. Jarnigan, inflict certain injuries upon him, among which was permanent impairment of the physical vigor of his right eye. The case was tried to a jury and the defendant convicted and his punishment assessed by the jury at imprisonment in the penitentiary at McAlester, Okla., for the term and period of two years and six months and judgment and sentence was entered in accordance with the verdict. Prom that judgment and .sentence, this appeal has been perfected.

■ Briefly, the facts are: The prosecuting witness, B. H. Jarnigan, resided in Port Gibson, Okla., and held the official position of constable. James F. Boulding also lived in Fort Gibson where he was engaged as a mechanic in the operation of a garage. The defendant had been arrested prior to the occasion herein involved by the prosecuting witness, B. H. Jarnigan, and had paid a fine of $13.60 in the justice of peace court for being in unlawful possession of whisky. The merits of that controversy are not herein involved, except to show motive.

It appears that the prosecuting witness walked past Boulding’s garage on the day and time in question, where the defendant was working on a man’s car. The prosecuting witness walked down the street to an ice dock and sat down by a man by the name of Shorty MacIntyre. He had been seated there a few minutes when Boulding walked up and said, “Hello, B. H.” To which Jarnigan said, “Hello.” There was nothing else said by them at this time. Boulding sat on the left side of Jarnigan for a minute, got up and walked around to the side of a beer joint, next to the ice dock, about ten feet east of where Shorty MacIntyre and Jarnigan were sitting. Jarnigan was waiting for a freight train to cross the tracks down the street so that he could go home. When the train pulled out, Jarnigan got up. and started home. He had taken about five steps when the defendant Boulding came up from behind and struck him with a piece of metal. Jarnigan said the first lick paralyzed him, the next kind of waked him up and he reached back and got Boulding by the leg and then they went down together, with Boulding on top. Boulding kept hitting him in the mouth and in the eye and in the nose with the piece of iron. After the attack, Shorty MacIntyre and a man by the name of George Steele picked Jarnigan up and carried him across the street to a drugstore. He was then taken to Doctor Wallace’s, where the doctor pulled two loose teeth. Three other teeth were seen on the pavement at the scene of the fight.

The testimony, in relation to whether Boulding struck Jarnigan with a piece of iron, is conflicting, but credible. There is evidence that after the fight, defendant Boulding picked up a piece of metal near the scene of the fight and threw it in the back end of his truck. The defendant admitted that the piece of metal offered in evidence was the piece of metal that he threw in the back of his truck. It was described by Boulding ás being a part of a tire-jack, which he had used while working on the automobile when Jarnigan passed him. The defendant denied that he had used any such metal, contending the beating was administered with his bare fists. In this denial, he was substantially corroborated by most of the witnesses.

The evidence further discloses that in addition to losing the five teeth, Jarnigan suffered a 90% permanent loss of vision in his right eye. The loss of vision in Jarnigan’s eye was testified to by Doctor C. M. Fullenwider, a duly licensed, practicing physician in Muskogee, Okla., specializing in eye, ear, nose, and throat. His testimony, as to the disability of Jarnigan’s right eye stands uncontroverted. Neither is the fact that Jarnigan lost five teeth controverted. The only substantial conflict in the testimony is in relation to whether Boulding administered the beating with his bare fists or a piece of metal held in his hand.

The defendant raises no legal questions but contends that the evidence is not sufficient upon which to base a conviction of maiming. Furthermore, that the jury justified their verdict on the belief that the iron instrument was used in the fight.

The sections of the statute involved in this case, are Title 21 O.S. 41 § 751, which reads in part as follows:

“Every person who, with premeditated design to injure another, inflicts upon his person any injury which * * * disables any member or organ of his body or seriously diminishes his physical vigor, is guilty of maiming.” Title 21 O. S. 41 § 754, which reads in part as follows: “To constitute maiming it is immaterial by what means or instrument, or in what manner the injury was inflicted.” Title 21 O. S. 41 § 756, which reads in part as follows: “A design to injure, * * * or disable, is inferred from the fact of inflicting an injury, which * * * disable, unless the circumstances raise a reasonable doubt whether such design existed.” Title 21 O. S. 41 § 757, which reads in part as follows: “A* premeditated design to injure, * * * or disable, sufficient to constitute maiming, may be formed instantly before inflicting the wound.”

It is pertinent to here point out, that the question of disfigurement is not involved and therefore the provisions of section 755 do not apply. Only those portions of the statute are applicable which pertain to permanent disablement of an organ of the body, in this case, to wit, the right eye.

The only question involved in this case is whether or not the facts revealed from the record are sufficient to bring this case within the foregoing statutes and support the verdict of the jury. The first element to be determined is whether or not the defendant inflicted the injuries, herein complained of, with premeditated design. This court held in De Arman v. State, 33 Okla. Cr. 79, 242 P. 783, “premeditated design to injure another” does not mean that there must be a “design to maim the person injured in the exact way or to the extent actually perpetrated.” Under the provisions of section 757, a premeditated design to injure or disable, sufficient to constitute maiming, may be formed instantly, before inflicting the wound. The jury found these issues against the defendant. The evidence is ample to support its finding.

The record shows the defendant struck Jarnigan from behind without any provocation or warning and with such means as to inflict a permanent disablement to Jarnigan’s right eye, to the extent of 90% loss of vision. The evidence to support the finding of disablement is uncontroverted, and supports the verdict.

This court has held, that, as an appellate court, it will not weigh conflicting and contradictory evidence which has been passed on by the jury of the trial court, but will interfere only where there is an entire absence of testimony upon some material issue or that the evidence so clearly preponderates in favor of the defendant as to suggest the probability that the verdict was the result of misapprehension or partiality, McMurtry v. State, 81 Okla. Cr. 24, 159 P. 2d 567; Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758; Salisbury v. State, 80 Okla. Cr. 13, 156 P. 2d 149. For numerous other authorities, see, Criminal Law, 1159(3), West Digest System. There is ample evidence to support the verdict of the jury. This court has further held that the Criminal Court of Appeals will not substitute its judgment for that of a jury on disputed questions of fact, citing, Scott v. State, 80 Okla. Cr. 259, 158 P. 2d 728.

In this case, the fact that the defendant attacked Jarnigan and inflicted serious, permanent injuries upon him is not disputed. The only disputed question of fact in this case, is as to the means, instrument, or manner in which the injuries were inflicted. Under the provisions of Title 21 O. S. 1941 § 754, it is immaterial as to. what means or instrument, or in what manner the defendant inflicted the permanent disablement to Jarnigan’s eye. It is of no consequence as to whether a piece of tire-jack was used or whether the defendant’s fists were used, save and except by way of aggravation. It is sufficient that the jury found from the evidence that the attack was by premeditated design and the injury resulted in permanent disablement to Jarnigan’s right eye. This court has so held in-the case of Payne v. State, 21 Okla. Cr. 416, 209 P. 334. Therefore, the manner or means of inflicting the injury is not an essential element of pleading or proof in a case of this kind. In line with the facts, the applicable statutes, and the cases cited, we are therefore of the opinion that the evidence was ample to support the verdict of the jury and no other error being relied upon, the conviction, judgment, and sentence herein should be and the same is hereby affirmed.

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


author: JONES, J.

text:
    CHARLES JONES et al. v. STATE.
    No. A-10661.
    Feb. 5, 1946.
    (177 P. 2d 148.)

      C. J. Moody, of Pauls Valley, and Geo. B. Forrester, of Sulphur, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendants in error.
   JONES, J.

The defendants, Charles Jones and Inez Higgins, were jointly charged in the district court of Murray county with the crime of grand larceny, were tried, convicted, and each of them was sentenced to serve a term of one year in the State Penitentiary, and have appealed.

For a reversal of this case, two propositions are presented. First, the court erred in overruling the motion for directed verdict because the evidence is not sufficient to establish the essential element of intent to deprive the owner of the property, and is not sufficient to show venue in Murray county. Second, the court erred in admitting in evidence testimony concerning the property obtained by search of defendant Higgins’ house over objection of the defendant Higgins.

The information filed against the defendants charged them with the theft of approximately $200 from the person of one S. Y. Lewis, on about August 1, 1943. The witness S. V. Lewis testified that he owned a store at Dougherty, Okla. That about noon of Sunday,' he closed his store and took all of the money he had in the cash drawer, which included about $250 in checks, and placed the money in his pocket. He then drove to Sulphur to obtain some beer, but was unable to find any. That he had almost a pint of whisky with him. That he knew John and Inez Higgins; that he drove to their house and asked to buy some beer. That the defendant Inez Higgins said they did not have any, but that they might get some at Joseph’s. That Inez got into the car with him and drove with him to Joseph’s place in Sulphur, but they had no beer there. That Inez then suggested that they drive over to Davis, Okla. That when they arrived at Davis, Inez called the defendant Charles Jones over to the car and told him they were looking for beer. Charles said there was no beer in Davis, but that if they would drive to Wynnewood he thought they could buy some homebrew over in negro town. That they drove to Wynnewood and drank several rounds of homebrew out in negro town, and also some whisky out of his bottle. That the witness Lewis paid for the drinks. Lewis testified that about 4 p.m. he “passed out” and did not know anything until he awakened early the next morning and found himself lying on a cot. out in the front yard at the Higgins home at Sulphur. That he noticed that his money was gone, and called Inez Higgins and asked if she had his money and she said, “No.” That he then said, “Where is my money — I figure you have it.” That she then said, “If Charles Jones got your money, I will make him give it back to you.” That all of his money, including the bills and silver, was gone, but that the checks were still left in his pocket.

The witness Lewis then got in his car and started towards his home. That he turned south off the road two miles east of Davis. That he felt sick and tired and stopped the car, and lay down on the front seat and went to sleep. That late that afternoon, some people from Davis found him and took him home. That the next day he went to Sulphur and told the sheriff and county attorney about his money disappearing and signed a complaint against the defendants.

Marvin Stephens, sheriff of Murray county, testified that on Monday, about August 1, 1943, he was informed that S. V. Lewis was missing. That he was advised that his store had not been opened, and that Lewis had not been seen since about noon on Sunday. That shortly after he received this information, he was informed that Lewis had been found, but that he had reported that he had been out with the defendants, Charles Jones and Inez Higgins, and that approximately $200 which he had with him had disappeared.

That he drove to Davis and found Inez Higgins, and told her that it was claimed that Mr. Lewis had lost a large sum of money while he was with her. That she stated she knew nothing about any money, but admitted that she and Charles Jones went with Lewis in his car to Wynnewood where they purchased some liquor and then went back with him to Sulphur. That Lewis had been drinking, but she denied knowing anything about the disappearance of any money. That after talking with Mrs. Higgins, he found Charles Jones and brought both of them to the county jail at Sulphur. That the defendant Jones admitted being with Inez Higgins and Lewis in Lewis’ car, but be denied that he had taken any money or knew anything about any money.

The sheriff further testified that after his conversation with the defendants at the jail, he went to the home of John Higgins, the husband of the defendant Inez Higgins, and asked his permission to search the premises. That permission to search was given, and in a clothes closet several bills were found in a cookie jar on a shelf in the closet. That John Higgins disclaimed any knowledge of the money. That the sheriff and his deputy had John Higgins count the money and there was $98 in the jar. That after finding the money, they returned to the jail and had a conversation with Charles Jones. That he then told them his part of the money he got in the deal was wrapped in an old towel and laying on top of a cupboard on the second floor of a hotel in Davis. That the witness, together with his deputy, and Mr. Warren, night watchman at Davis, went to the hotel at Davis described by the witness and found $68 in bills in a towel laying on top of the cupboard at the place described by the defendant Jones. That they then had a conversation with Inez Higgins in which she told them at first that she knew nothing about it, but later in the same conversation she said that- she got the money found at her home from Charles Jones at Davis.

Marion Holland, deputy sheriff, testified to substantially the same facts as related by the sheriff. He testified positively that in his first conversation with Inez Higgins she said she did not know anything about the money, had not seen any money on Lewis and did not know that he had any.

John Warren testified that he was a nightwatchman at Davis. That after midnight on Monday, August 1, 1943, the sheriff and a deputy came to Davis and got him to go with them to make a search of the second floor of the hotel. That the sheriff braced him while he got np and looked on top of an old cupboard three or four doors down the hall from the room of the defendant Jones. That he found an old towel laying on top of the cupboard with eight one dollar bills and three twenty dollar bills wrapped in it.

After the state rested their case, the defendants demurred to the evidence, which was overruled. The defendants then rested without offering any evidence in their behalf. Thereafter, they moved the court to instruct the jury to return a verdict of not guilty, which was overruled with an exception saved to the defendants.

As to the first contention of the defendants that there is no evidence to show criminal intent to commit larceny, we find the following circumstances, among others: First, the prosecuting witness Lewis had approximately $200 when he “passed out” in the company of the defendants. Second, when he regained consciousness at the home of Inez Higgins, his money was gone. Third, admissions by both defendants when they were first arrested that they had been with the prosecuting witness to Wynnewood to get some homebrew. That he had “passed out” and they had driven him back to the home of Inez Higgins. Fourth, their denials at first of knowing anything about any money. Fifth, the finding of a large amount of money hidden in the home of Inez Higgins, and the finding of a large amount of money at the hotel where Charles Jones told them it was hidden. Sixth, admission by Inez Higgins that the money found by the officers in her home had been obtained by her from Charles Jones. Seventh, admission by Charles Jones that the money found at the hotel was his part of the money “got in the deal.”

This court has many times held in accordance with the statute that in order to constitute larceny, the taking must be without authority and with the intent to deprive the owner permanently of the property. 21 O. S. 1941 § 1701; Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712; Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832.

It is our conclusion that the evidence is sufficient to require the submission of the case to the jury for their determination as to whether the defendants took the property from the prosecuting witness, and if so, if it was with the felonious intent to permanently deprive him of said property.

It is provided by statute that:

“When property taken in one county, by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county.” 22 O. S. 1941 § 128.

Under this statute, irrespective of whether the property was taken from the prosecuting witness in Wynnewood or somewhere else outside of Murray county, the evidence is sufficient to show that it was brought into Murray county and was found by the officers in Murray county.

The contention that the search of the Higgins home was illegal and the property obtained in the search inadmissible in evidence is without merit. John Higgins, the head of the household and the owner of the hotíse, according to the evidence, gave the officers permission to make the search. The burden is upon the party alleging the invalidity of a search to show that the same is illegal. There was no evidence offered by the defendant to refute the statement of the sheriff that permission was given to make the search.

Furthermore, it has been held that where a lawful arrest of an accused is made, officers may legally search his premises in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, and articles found by reason of such search, otherwise admissible, may be used as evidence at the trial. Herren v. State, 74 Okla. Cr. 432, 127 P. 2d 384; Sears v. State, 79 Okla. Cr. 437, 156 P. 2d 145; Sallee v. State, 51 Okla. Cr. 414,1 P. 2d 794.

In Sallee v. State, supra, it is stated:

“Where the officers have information that a felony has been committed, and where they have reasonable ground to believe the defendant has committed this' felony, they may legally arrest him, and evidence obtained in a search of defendant’s premises after his arrest is admissible, notwithstanding the defendant may have escaped from the officers shortly after his arrest.”

It is our opinion that the defendant had a fair and impartial trial, and there are no errors in the record sufficient to require a reversal of the judgment of conviction.

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

BAREFOOT, P. J., and BRETT, J., concur.


text:
    JOHN D. LINDE v. STATE.
    No. A-10735.
    Feb. 12, 1947.
    (177 P. 2d 527.)

      See, also, 83 Okla. Cr. 268,175 P. 2d 370.
    Herbert K. Hyde and Lee Williams, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, John Linde, was charged in the court of common pleas in Oklahoma county, Oklahoma, with the offense of illegal possession of intoxicating liquor, in that he did, unlawfully, willfully, and wrongfully have in his possession, a quantity of tax paid whisky in excess of 94 (4/5), with intent, on the part of said defendant, to unlawfully, willfully, and wrongfully, barter, sell, etc., same. To this information, the defendant entered a plea of not guilty. Thereafter, on September 10, 1945, the defendant withdrew his plea of not guilty and entered a plea of guilty. Sentence was deferred to November 15, 1945, and after being continued from time to time, finally came on for further proceedings on November 21, 1945. On November 21, 1945, the defendant demurred to the information, setting forth, that it was insufficient for the reason that the facts stated did not constitute a public offense. The defendant was permitted to withdraw his plea of guilty for the purpose of presenting a demurrer. The demurrer was thereupon overruled and the plea of guilty re-entered. The minutes then show that the defendant was sentenced to 30 days in the county jail and to pay a fine of $100 and costs. The minutes show the defendant filed his motion for a new trial and the same was presented. The county attorney confessed the motion and the case was set for December 10, 1945. Thereafter, on December 10, 1945, motion to dismiss was filed, setting forth as grounds, that the county attorney had confessed that the information was insufficient. On the same day, a motion in arrest of judgment was filed, setting forth that the information was insufficient to state an offense and the further ground that the county attorney had confessed the defendant’s motion for new trial. On the same day, motion for new trial was filed, setting forth as grounds the overruling of the demurrer and the defendant’s motion' to dismiss. On that same day, the motion to dismiss was overruled as well as the motion in arrest of judgment. The defendant refused to plead further for the reason a plea of guilty had heretofore been entered. Thereupon, the court overruled the defendant’s motion for a new trial and the defendant was again sentenced to 30 days in jail, $100 fine, and costs of the action. Whereupon, the defendant gave his notice of intention to appeal to the Criminal Court of Appeals. The making of the case-made was continued from time to time until four months had elapsed. The appeal lodged here and the plaintiff in error’s brief was filed in this court on January 25, 1947. The Attorney General’s motion to dismiss was filed five days later on January 30, 1947.

The plaintiff in error contends that the judgment and sentence appealed from is based on information which the state confessed was insufficient to state an offense and that judgment and sentence thereafter pronounced against the defendant was void. The state contends that the appeal is purely dilatory and frivolous and without merit.

The foregoing state of facts, as revealed from the record, constitutes one of legal entanglements but there are certain things that are clear and conclusive. It is first clear and conclusive that the information did define an offense under the statutes of the State of Oklahoma, as set forth in 37 O. S. 1941 § 31, reading in part as follows :

“It shall be unlawful for any person to have or keep in excess of one quart of spirituous, * * * liquors * * *, whether such liquor be intended for the personal use of the person so having and keeping the same or not; [and providing penalties therefor].”

A casual examination of the information discloses that the information is sufficient to define an offense within the foregoing statute.

This being true, the court committed no error in overruling the defendant’s demurrer to the information. The record discloses that thereafter the defendant re-entered his plea of guilty, a motion in arrest of judgment was filed, and overruled. We think this action of the court was proper. The record discloses that the defendant was then sentenced to 30 days in jail and to pay a fine of $100 and costs. This judgment and sentence was never vacated or set aside and still stands. Motion for new trial was then' filed and presented. Under the provisions of 22 O. S. 1941 § 953, application for a new trial must be made before judgment is entered, but the court may, for good cause shown, allow application therefor within 30 days after judgment. There is no showing of good cause for the presentation of the motion for new trial after the entry of the judgment. This being true, the motion for new trial came tod late to be considered. The record further discloses that at this stage of the proceedings, the county attorney confessed the motion for new trial. We are of the opinion that judgment and sentence having been pronounced, the motion for new trial, and the county attorney’s endeavor to confess the same, was out of time and therefore of no force and effect. We are further of the opinion that all the proceedings subsequent to November 21, 1945, were void, in the absence of an order of the court, vacating and setting aside the judgment and sentence made and entered as of November 21, 1945. The language of Judge Jones in the case of Roberts v. State, 72 Okla. Cr. 384, 115 P. 2d 270, 274, is most appropriate here, wherein he said:

“We have examined the record thoroughly and do not feel that it is necessary to give an extended discussion of the evidence in connection with the application to withdraw the plea of guilty. It is sufficient to say that the defendant had the aid and assistance of able counsel when his plea of guilty was entered. It is apparent from the record that the defendant has exhausted every means at his command to avoid paying the penalty for this offense. His efforts to delay have met with a great deal of success as the final judgment in this matter has been postponed several years. Justice has been long delayed, but the day has finally arrived when the penalty of the law must be fulfilled.”

The defendant, since first entering his plea of guilty, has never denied his guilt. It is time he answer for his wrongdoing.

Moreover, it is our opinion that the time for perfecting the appeal began to run on November 21, 1945. This being a misdemeanor, the time for perfecting the appeal may not exceed 60 days, allowed by statute, and an additional 60 days, which, for good cause shown, the court may grant. In no event can the time for perfecting an appeal in a case involving a misdemeanor, exceed 120 days after judgment. The appeal, not having been lodged in this court until April 9, 1946, was out of time. The defendant may have relied on his motion for a new trial, after judgment, to stay the time for perfecting his appeal. In this, he was mistaken. The filing of a motion for new trial after judgment is rendered does not -extend the time in which an appeal may be lodged in this court. The appeal, not being lodged in this court within 120 days after judgment, in a misdemeanor case, this court is without jurisdiction to consider the same. Wyatt v. State, 81 Okla. Cr. 248, 162 P. 2d 884. For these reasons, we are of the opinion that this appeal is without merit and the motion to dismiss, on behalf of the state, should be and is hereby sustained.

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


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    GEORGE DEWEY EDWARDS v. STATE.
    No. A-10671.
    Feb. 12, 1947.
    (177 P. 2d 131.)

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

The defendant, George Dewey Edwards, was convicted in the court of common pleas of Oklahoma county of the offense of unlawful possession of intoxicating liquor and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

The sole assignment of error presented in the brief of the defendant is that the verdict is contrary to the law and the evidence.

Three officers of Oklahoma county, armed with a search warrant, went to the residence of defendant on April 29, 1945, and found seven pints of assorted brands of tax-paid whisky. According to the testimony of the officers, the whisky was found in the bottom of a duofold in a secret compartment operated by hidden hooks.

Officer Caldwell testified that when they made the search, they moved the duofold and heard the bottles rattle in the bottom. That they then turned the duofold upside down trying to find some way to get into the compartment where the bottles were located. That a mattress and a set of springs were on top of the duofold and they removed those and found some secret hooks by which the bottom compartment was opened. He. further testified that the defendant was present when the search was made; that the officers searched about half an hour before they found any liquor. That when they found it, the defendant stated that he didn’t think the officers would be able to find the whisky there.

On cross-examination of the officers, counsel for defendant attempted to show that the compartment where the whisky was found was not a secret compartment, but was an ordinary drawer built in the day bed at the factory and in which' quilts ordinarily are stored. But the officers testified that they had searched many similar duofolds and had never found such a compartment in any other duofold.

The defendant did not testify, but his wife testified in his behalf, that a Mr. Shipley brought the whisky to their house just a few days before the officers made the search. That the whisky was brought there for her husband who intended to drink it for his own personal enjoyment, and was not for sale. On cross-examination, she admitted that they had a federal retail liquor dealer’s stamp. She further testified that the compartment described by the officers as a secret drawer was a part of the bed as originally made, and there had been no secret compartments built in- • to it.

H. C. Stout testified on behalf of the defendant that he ran a repair shop in Capitol Hill, and that for about 18 months he had bought fans, irons, clocks, watches and other things which the defendant had brought to him. That the defendant drank whisky.

Based on the evidence offered on behalf of the defendant, his counsel presents the novel contention that since tbe defendant’s proof showed that the whisky was in the possession of the defendant for his own personal use, and there was no evidence of the state to rebut it, it was the duty of the court to instruct the jury at the conclusion of all the evidence to return a verdict of not guilty, citing as an authority the case of Bock v. State, 80 Okla. Cr. 28, 156 P. 2d 381, in which this court stated:

“It is not unlawful to have the possession of intoxicating liquors for your own personal use.”

However, we direct attention to the fourth paragraph of the syllabus in Bock v. State, supra, in which it is further stated:

“The intent with which liquors are possessed is an essential ingredient of the crime. 37 O. S. 1941 § 82, makes the possession in excess of one quart of whisky prima facie evidence of an intent to sell, but is not conclusive, and where defendant contends that he had intoxicating liquor for his own personal use, such contention raises an issue for the determination of the jury under proper instructions.”

In the body of the opinion it is stated: mine that the defendant had it for his own personal use, it is their duty to return a verdict of not guilty. If they should determine that he had it for the purpose of sale, conveyance, or other unlawful purpose, their verdict should he that of guilt.”

“Nine pints of whisky were found in a room at defendant’s residence. The defendant did not testify, but his wife testified in his behalf that the defendant had the whisky for his own personal use and did not have it for the purpose of sale in violation of the law. In Oklahoma, the possession of intoxicating liquor for his own personal use is not unlawful regardless of the quantity a person has in his possession. Where a person has in excess of one quart in his possession under the statute such possession is prima facie evidence of an intent to sell, 37 O. S. 1941 § 82, but this is not conclusive, and where the defendant contends that he had the intoxicating liquor for his own personal use, such contention raises an issue for the determination of the jury under proper instructions. If they should deter-

In the instant case there was a sufficient quantity of whisky to make a prima facie case against the defendant. The testimony of the wife of the defendant that the defendant had the possession of the whisky for his own personal use raised an issue for the determination of the jury under proper instructions. The court completely and fully covers ed this theory of the defendant in instruction No. 13, and no complaint is made by counsel for the defendant that the instructions did not fully state the law of the case.

The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


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    A. E. LOUDERMILK v. STATE.
    No. A-10673.
    Feb. 12, 1947.
    (177 P. 2d 129.)

      R. O. Swimmer, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, A. E. Loudermilk, was charged in the court of common pleas of Oklahoma connty with the offense of the unlawful possession of intoxicating liquor, to wit: nine 4/5ths bottles of tax-paid liquor.” He was tried, convicted and sentenced to pay a fine of $50, and to serve 30 days in the county jail, and has appealed.

For reversal of this case, it is contended:

"1. Error of the court in overruling motion to suppress the evidence.
“2 Prejudicial errors of the state in putting character of defendant at issue; misconduct of prosecuting counsel in asking prejudicial and suggestive questions.
“3. Error of court in allowing endorsement of witness on information prior to conclusion of trial and refusal to allow continuance for a reasonable time because of the surprise.”

The affidavit for the search warrant was introduced in evidence when the court considered the motion to suppress the evidence obtained thereon. It was regular on its face and was sworn to before the justice of the peace who issued the search warrant. It is contended that the officer did not state to the justice that he swore to the affidavit. The officer testified that he signed the affidavit in the presence of the justice of the peace, and it shows on its face to have been sworn to. This is sufficient, as it is not necessary to show that the party actually declared to the justice of the peace that he swore to the same. Farrow v. State, 71 Okla. Cr. 397, 112 P. 2d 186; 22 C. J. S., Criminal Law, § 308, p. 461.

L. J. Kolb, the deputy sheriff who executed the search warrant, testified as follows:

“Q. Did you know Mr. Loudermilk previous to January 13, 1945?” (Objection upon the grounds that defendant’s character was being placed at issued is overruled.) “A Yes, sir; I have known him for some time. Q. How long have you known Mr. Loudermilk? A. About a year. ,Q. About a year? A. Yes. Q. Do you know if Mr. Loudermilk has lived at this .address all of that time? A. No, sir; he hasn’t lived at this address all of the time I have known him. Q. During the nine months previous to January, 1945, have you ever served any other search warrant on the defendant?” (Objection again overruled.)

It is contended that this was an attack upon the character of defendant. We do not think the question was for that purpose. Two search warrants had been served on defendant, one for his automobile and one for his premises. This question was primarily for the purpose of «identifying the premises of defendant. However, the record does not disclose that the question was ever answered in the presence of the jury, which was excused during the time the question was presented to the court.

It is next contended that the court erred in permitting the endorsement of the name of a witness on the information during the trial, and refusal to allow continuance for a reasonable time because of the surprise.

The witness whose name was endorsed was Nash A. Setzer. At the time permission was asked to endorse his name, the court asked counsel for defendant if he wanted “a continuance until tomorrow morning,” and counsel replied: “No, we ask to have the case stricken. The Court: Overruled, and exceptions allowed.”

The witness identified a certified copy of a record card procured from the office of the Collector of Internal Revenue in Oklahoma City, showing that defendant had been issued a special tax stamp as a retail liquor dealer, and the same was introduced in evidence over the objection of defendant. The witness did not testify to any facts in the case. We have often held that in misdemeanor cases the court has the right to permit the endorsement of witnesses on the information during the trial of the case. Boston v. State, 39 Okla. Cr. 275, 264 P. 212; Fitzgerald v. State, 75 Okla. Cr. 192, 129 P. 2d 867; Shieve v. State, 30 Okla. Cr. 91, 235 P. 254. This was within the discretion of the trial court. Graham v. State, 45 Okla. Cr. 177, 282 P. 695; Coldiron v. State, 49 Okla. Cr. 310, 294 P. 207; Hochderffer v. State, 49 Okla. Cr. 420, 295 P. 236; Anthony v. State, 55 Okla. Cr. 260, 28 P. 2d 115.

We do not find that, under the facts here presented, the court abused its discretion in permitting the name of the witness to be endorsed, or that the defendant was prejudiced by the action of the court.

Finding no error, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.


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    EARL COSLOW v. STATE.
    No. A-10628.
    Feb. 19, 1947.
    (177 P. 2d 518.)

      Laynie W. Harrod and Dave R. Tant, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Wm. N. Mounger and Jack Tellegen, Asst. Co. Attys., both of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Earl Coslow, was charged in the district court of Oklahoma county with the crime of manslaughter; was tried, convicted of manslaughter in the second degree, and sentenced to serve a term of two years in the State Penitentiary, and has appealed.

For a reversal of this case, it is contended, first:

“The trial court erred in overruling the demurrer of the defendant to the information filed in said cause.”

The charging part of the information was as follows:

“* * * the said defendant * * *, did then and there knowingly, wilfully, wrongfully, unlawfully, and feloniously make an assault, without justifiable or excusable cause, and in a heat of passion, but in a cruel and unusual manner, upon one Tommy Wayne Wiley, by striking the said Tommy Wayne Wiley with his fist with sufficient force as to knock him, the said Tommy Wayne Wiley, to the concrete floor, then and there inflicting certain mortal wounds about the head, of which mortal wounds the said Tommy Wayne Wiley did languish and die on the 12 day of June, 1944, * * *.”

In considering a demurrer to an information, the evidence offered at the trial cannot be taken into consideration. At the time of passing upon the demurrer, the court has not had the benefit of the evidence to be produced at the trial. Only the terms of the indictment or information may be considered on the demurrer. This court has never applied strict rules of construction in passing upon the terms of an indictment or information.

The sixth and seventh paragraphs of 22 O. S. 1941 § 409, provide:

“6. That the act of omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“7. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

It is provided by 22 O. S. 1941 § 410 as follows:

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

A careful examination of the information filed in this case convinces us that the crime charged against defendant is clearly and distinctly set forth in ordinary and concise language and in such manner as to enable the defendant or a person of common understanding to know what was intended, and the offense with which he stood charged. The offense is stated with such a degree of certainty as would enable the court to pronounce judgment upon conviction according to the right of the case. It is such that would bar a second prosecution for the same offense if defendant should not he convicted thereon. The only case cited by defendant to sustain his contention is State V; Knoll, 72 Kan. 237, 83 P. 622. That case does not consider a demurrer to the indictment or information, but is decided upon the question of the insufficiency of the evidence to sustain the conviction under the statutes of that state.

We are of the opinion that the court did not err in overruling the demurrer to the information. Hunter v. State, 63 Okla. Cr. 24, 72 P. 2d 399; Burns v. State, 72 Okla. Cr. 409, 117 P. 2d 144.

The second assignment of error is:

“The court erred in giving instruction No. 16 to the jury, to the giving of which instruction the defendant duly objected and excepted.”

This instruction is as follows:

“It is the theory of the defendant in this case that he killed the deceased in self-defense. Homicide is not without authority of law but is justifiable under the law of self-defense when committed by any person when resisting an attempt to commit an assault upon him and there is reasonable ground on the part of the defendant to apprehend a design or purpose of the person killed to assault him and do him some personal injury, and it appears to the defendant that there is imminent danger of bodily injury being done him by the person killed, and, you are instructed in this connection that any person who is unlawfully assaulted by another is justified in using all reasonable force necessary to repel such assault or attack as the same reasonably appears to him necessary at the time, and that if the person so assaulted uses no greater force than reasonably appears to him necessary at the time to repel such attack or assault such actions of such person would be justified under the law of self-defense, provided the killing was not done in a cruel and unusual manner or by means of a dangerous weapon.”

That part of the instruction which is objected to is:

“It is the theory of the defendant in this case that he killed the deceased in self-defense.”

It is contended that defendant did not rely upon the question of self-defense, but that he did not kill the defendant, or that the defendant was not killed by reason of the blows struck by defendant, but that deceased had high blood pressure and that was the cause of his death. It is contended that the above instruction indicated to the jury the court’s opinion as to the weight of the evidence. We do not concur in this conclusion. Throughout the evidence of defendant, it was his contention that deceased had an open knife in his hand, and was in fact making an assault upon him at the time he struck deceased, and that this was his reason for striking him. Under this evidence, the court was justified in presenting the issue of self-defense. No doubt if the court had failed or refused to instruct the jury on the issue of self-defense, defendant would have claimed that as reversible error.

It is unnecessary to quote from other instructions given by the court, but an examination of the instructions reveals that they are fair to the defendant, and gave the jury ample opportunity to find the defendant not guilty if they deemed the evidence so justified.

The third assignment of error is:

“The court erred in submitting the issue of manslaughter in the first degree to the jury.”

This defendant was convicted of manslaughter in the second degree. We have often held that where one was convicted of manslaughter in the first degree, he would not be heard to question an instruction with reference to murder, and where one is convicted of manslaughter in the second degree, he will not be heard to complain of an instruction on manslaughter in the first degree, where it is ' not shown that defendant was injured thereby. Grindstaff v. State, 82 Okla. Cr. 31,165 P. 2d 846.

Defendant was charged in the instant case with manslaughter in the first degree, and was convicted of manslaughter in the second degree, as an included offense. We have often held that it is the duty of the court to instruct the jury upon every degree of homicide which the evidence in any reasonable view of it suggests. Chandler v. State, 79 Okla. Cr. 323,146 P. 2d 598; Pritchett v. State, 79 Okla. Cr. 401, 155 P. 2d 551; Palmer v. State, 78 Okla. Cr. 220, 146 P. 2d 592; Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111; Isaac v. State; 83 Okla. Cr. 33, 172 P. 2d 806.

In the case at bar, the court instructed the jury upon the issues of manslaughter in the first degree, manslaughter in the second degree, assault and battery, and upon the issues of excusable and justifiable homicide.

21 O. S. 1941 § 711 provides:

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

Defendant was charged under this statute. The court instructed the jury under the first and second paragraphs thereof. We are of the opinion that the evidence justified these instructions, which left the issues for the determination of the jury.

The fourth assignment of error is:

“Misconduct on the part of the county attorney in persisting in asking incompetent, prejudicial, and irrelevant questions.”

The first objection was to questions asked the witness Martha Lynch. This objection is not well taken, for the reason that the record reveals that the court sustained objections of counsel to the witness’ testimony and it was stricken from the record.

The second objection is with reference to certain questions asked the defendant on cross-examination. These questions had reference to defendant having been previously convicted in both felony and misdemeanor cases, and of having served time in the State Penitentiary, and paid fines in different courts. The court sustained objections to the questions with reference to defendant having been convicted and paid fines in misdemeanor cases for the reason that they were not crimes involving moral turpitude. The questions concerning defendant’s conviction on felony charges were permitted to stand. There was no error in this procedure. When a defendant takes the witness stand and testifies in his own behalf, the prosecution has the same right to cross-examine him with the same latitude as any other witness. Under the statutes, he may be interrogated concerning any former convictions of crime. 12 O. S. 1941 § 381. Whether an offense involves moral turpitude is not the test in this state. Howard v. State, 67 Okla. Cr. 445, 94 P. 2d 947; Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499,115 P. 2d 266. There was no error in permitting the county attorney to cross-examine the defendant as to previous convictions for crime.

This defendant was charged with the killing of Tommy Wayne Wiley at Bill’s Tavern, or tap room, in Oklahoma City, on June 12, 1944. Defendant had gone to the tavern in the afternoon on June 11th. Tommy Wayne Wiley, whose eyesight was not good, was in the tavern, and around 11 or 11:30 in the evening went over to the booth where defendant and others were drinking beer. He knew some of the parties in the booth, but did not know the defendant. He was asked to sit down and drink some beer, which he did. Soon thereafter Tommy Wayne Wiley and some of the parties left the tap room, going outside the building, but returned within a few minutes. They were standing near the booth where defendant and others were seated. Some conversation took place between defendant and Wiley with reference to drinking more beer. The record does not disclose what was said, but nothing to cause any serious controversy. Many persons were present and a number of them testified. Others did not. Defendant testitled that Wiley had an open knife in his hand, and held it up as if he intended to strike him with it. He immediately hit deceased with his fist, knocking him to the concrete floor, which was covered with linoleum. Wiley was taken from the tavern by his friends to the home of one of them, an ambulance was called, and he was taken to the hospital. He entered the hospital about midnight, and died about 2:30 the morning of June 12,1944, as the result of a blow, as testified to by the doctor who examined him. The doctor testified that he saw deceased soon after he was admitted to the hospital, and that at the time he was in a “state of deep unconsciousness,” and his blood pressure was high, 170 over 84, and that the normal blood pressure of a man of his age was 129, but his death was caused by a blow which he had received.

Photographs were introduced in evidence and attached to the case-made. They show an abrasion or cut on the face of deceased. Two pocketknives were also introduced in evidence and attached to the case-made. There was much conflicting testimony as to whether deceased had a knife open at the time of the difficulty. A pocketknife was found in his pocket at the place he was taken from the tavern after the difficulty.

We can only conclude from the evidence that defendant did not intend to kill Tommy Wayne Wiley at the time he struck him. However, the statute does not require that one should intend to kill, under the manslaughter statute. It has often been held that one is responsible for his unlawful acts. This was a question of fact for the determination of the jury, and from a careful examination of the record, we cannot say that they came to the wrong conclusion. The punishment assessed was the minimum penitent tiary sentence provided by the statute.

Finding no error which would require a reversal of this case, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES and BRETT, JJ., concur.