text:
    OLSON FOSTER v. STATE.
    No. A-5657.
    Opinion Filed Aug. 28, 1926.
    (248 Pac. 847.)
    C. A. Summers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of robbery with firearms, and sentenced to serve a term of 25 yeárs in the state penitentiary.

The evidence disclosed that J. M. Bates was engaged in the mercantile business at Haskell, and on the night of the commission of the crime charged was sleeping in his store. During the night he heard some one in the building, and discovered a man with a flash light, whom he intercepted. A fullisade followed; the intruder shot Bates, and Bates returned the fire and shot the intruder twice. The man shot was Orie Smith, who was later tried and convicted of robbery. In the trial of defendant, Bates testified that he saw only one man in the store, but heard an automobile running outside. Other witnesses,, immediately after the shooting, saw some one running away from the store, whom the state attempted to identify as defendant. The shooting was about 2:30 a. m. About sunrise, defendant was arrested two miles north and three-quarters of a mile east of Haskell. There was some evidence of a statement made by him which might be construed as an admission of his connection with the crime.

The defendant testified that on the night of the offense charged he met Orie Smith at a barber shop at Muskogee, and Smith suggested that he would take defendant to his home near Haskell after work hours; that he came between 11 and 12 o’clock, and defendant went with him in a Ford roadster to the town of Haskell, and there Smith left the car, ostensibly to get some barber tools, and defendant remained at the car, and while waiting- he heard some shooting, became alarmed and left, and started to walk home, and had gone about 2% miles when overtaken by the officers, about 7 or 7:30 a. m.; that he did not know that Smith intended to commit any robbery, and had nó connection with him other than as stated. Separate trials of the defendant and Smith were had.

Several assignments of error are argued in the brief, but we deem it necessary to consider only one of them. It is argued that the trial court erred in permitting the state to introduce a transcript of the testimony of a witness, Swanson, given at the separate trial of Smith. Swanson was a deputy sheriff, and his testimony was material. On the day preceding the trial of defendant, a subpoena was issued for this witness; but, as he was temporarily out of the state, it could not be served. His testimony, ex parte so far as defendant was concerned, was thereupon read in evidence, over the objection of defendant. Defendant, at the time of the trial of Smith, was confined in jail, and was not present. The constitutional right of the defendant to confront the witnesses against him was so clearly infringed that it cannot seriously be contested. Even had the defendant been a party to the proceeding in which the testimony of the witness Swanson was given, there was not a sufficient showing of diligence to procure the attendance of the witness as would warrant the use of the testimony given at the former trial. Davis v. State, 20 Okla. Cr. 263, 201 P. 1001; Temple v. State, 15 Okla. Cr. 176, 175 P. 733.

It is fundamental that a defendant on trial, charged with crime, has a right to meet the witnesses against him face to face, and to cross-examine them, if he desires. Where a witness has testified in a preliminary hearing, or in a former trial of a defendant upon a charge, where the defendant was present and had opportunity to cross-examine, if thereafter such witness shall die, become insane, leave the state, or after due diligence cannot be found, or is sick and unable to testify, and probably in some other contingencies, his testimony taken at such former hearing or trial, upon a substantial compliance with the statutory requirements, may be used as the deposition of such witness at any subsequent trial. Section 20, art. 2, state Constitution; section 2349, Comp. Stat. 1921; Mendenhall v. U. S., 6 Okla. Cr. 436, 119 P. 594; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Washmood v. U. S., 10 Okla. Cr. 254, 136 P. 184; Spear v. State, 7 Okla. Cr. 379, 123 P. 852; Mattox v. U. S., 156 U. S. 237, 5 S. Ct. 337, 39 L. Ed. 409; 2 Wigmore on Evidence, § 1395.

The admitting in evidence of the transcript of the testimony of the witness Swanson was prejudicial. The case is reversed and remanded.

The warden of the penitentiary will surrender the plaintiff in error to the sheriff of Muskogee county, who will hold him in custody until he shall be discharged, or his custody changed by due course of law!

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HARRY BOWKER v. STATE.
    No. A-5472.
    Opinion Filed May 15, 1926.
    Rehearing Denied Sept. 4, 1926.
    (247 Pac. 634.)
    Rowe & Calvert, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

On an information charging in Pawnee county, August 8, 1924, Harry Bowker did have in his possession three gallons of whisky with the unlawful intent to sell the same, he was convicted, and in accordance with the verdict of the jury was sentenced to pay a fine of $250 and to be confined in the county jail for 90 days. From the judgment he appealed by filing in this court March 10, 1925, petition in error with case-made. No briefs have been filed, and when the case reached final submission, it was submitted on the record.

An examination of the record leaves no reasonable question in our minds as to the sufficiency of the evidence to justify the submission to the jury of the question as to defendant’s guilt; and, finding no material error, the judgment herein is affirmed.


text:
    ED RUSSELL v. STATE.
    No. A-5471.
    Opinion Filed May 15, 1926.
    Rehearing Denied Aug. 25, 1926.
    (250 Pac. 551.)
    Rowe & Calvert, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Appellant, Ed Russell, was convicted on an information charging that he did keep and maintain a place in the town of Keystone, where intoxicating liquor was received and kept for the purpose of sale, and in accordance with the verdict of the jury he was sentenced to pay a fine of $200, and be confined in the county jail for 60 days. From the judgment he appealed by filing in this court March 10, 1925, a petition in error with case-made, but no brief has been filed and no appearance made in his behalf in this court.

Without the aid of oral argument or brief, we have examined the record, and find that the testimony of the 11 witnesses called by the state sustain the charge. Their testimony is undisputed, and, no prejudicial error of law occurring at the trial, the judgment appealed from is affirmed.


author: EDWAKDS, J.

text:
    PLEAS HARDY v. STATE.
    No. A-5558.
    Opinion Filed Sept. 4, 1926.
    (248 Pac. 846.)
    B. C. Franklin, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWAKDS, J.

The plaintiff in error, hereinafter called defendant, upon a plea of guilty in the county court of Tulsa county upon a charge of Having unlawful possession of intoxicating liquor, was sentenced to confinement in the county jail for a period of 3’0 days and to pay a fine of $250.

The record presents an unusual situation. The defendant was informed against in the county court. The case was assigned for trial; at the time of trial defendant appeared in person and by his attorney; an application for continuance was presented and overruled; both sides then announced ready for trial. A jury was impaneled; the state presented its evidence and rested. Thereupon counsel for defendant announced that defendant wishes to withdraw his plea of not guilty and to enter a plea of guilty. The court then discharged the jury; defendant’s plea of not guilty was withdrawn and a plea of guilty entered. This was on February 12th. The imposing of the sentence was deferred until the 28th day of February, at which time defendant appeared by his counsel and filed his application to withdraw his plea of guilty, and to enter a plea of not guilty, setting out that defendant in the course of his trial was surprised by the introduction in evidence of the search warrant and affidavit for search warrant, and that he was not given time to look up the law applicable thereto. This application was overruled, and sentence passed. The record does not show any reason for surprise, since the defendant had objected throughout to the introduction, on the ground that the evidence offered was procured by an unlawful search, without a search warrant. The first witness for the state, however, had testified that the officers who made the search were operating under a search warrant, which warrant and the affidavit were later produced. No statement that the defendant was surprised was made to the court, nor request for a continuance or postponement made.

By section 2805, Comp. Btat. 1921, it is provided that a defendant in a criminal case as a matter of right may appeal from any judgment against him. This section of the law gives the right of appeal, although the judgment appealed from may have been entered upon a plea of guilty. Where, however, an appeal is taken from a judgment entered upon a plea of guilty, Since the judgment entered is in effect a judgment by confession, no question as to the sufficiency of the evidence or the guilt of the defendant can ordinarily be raised. 2 R. C. L. “Appeal and Error,” § 41; 17 C. J. 3295, and authorities cited. Whether or not the plea was voluntary, and the accused of competent intelligence and understanding to enter his plea, or his knowledge of his legal rights and the nature and consequences of his plea, the sufficiency of the indictment or information to confer jurisdiction, or the legality of the sentence, in such case are the only questions raised by an appeal from a judgment entered on a plea of guilty. Lowe v. State, 111 Md. 11, 73 A. 637, 24 L. R. A. (N. S.) 439, 18 Ann. Cas. 744; Galeo v. State, 107 Me. 474, 78 A. 867; Arispi v. Terr., 2 Okla. Cr. 79, 99 P. 1099.

It is not contended here that the plea of guilty was entered through inadvertence, ignorance, or want of understanding of its nature and consequences, nor that it was in any wise involuntary, nor that the information is insufficient to confer jurisdiction, nor that the sentence is illegal. The appeal is predicated upon a mere claim of surprise in the course of the trial by the production by the state of legal and competent evidence. The law provides an abundant safeguard in such case by proper objection and exception, and by provision for a continuance or postponement upon a proper showing of surprise and resulting prejudice. These safeguards were not invoked by the defendant, but upon the production of the evidence now complained of defendant voluntarily entered his plea of guilty. His contention is not tenable.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: EDWARDS, J.

text:
    Ex parte ERNEST KEY.
    No. A-6349.
    Opinion Filed Sept. 4, 1926.
    (248 Pac. 881.)
    See, also, 134 Okla. Cr. 394, 246 P. 1118; 35 Okla. Cr. 47, 248 P. 351.
    Sigler & Jackson, W. F. Bowman, Champion, Champion & Fischl, and Brett & Brett, for petitioner.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

This, is an original application by habeas corpus by Ernest Key, charged with murder in the district court of Carter county, to be let to bail. A previous application was denied by this court on July 17, 1926. Additional evidence is here presented from which it is made to appear that, at the time petitioner shot deceased, deceased was in the act of drawing a pistol, and that prior thereto a state of ill feeling existed between petitioner and deceased, and that deceased had made threats against the life of petitioner which had been communicated to petitioner. From the evidence, it cannot be said that the proof is evident or the presumption great that the offense is murder. Petitioner should be let to bail.

It is therefore ordered that the writ be granted, and that the petitioner be let to bail in the sum of $25,000, the sureties to,, be approved by the court clerk of Carter county.

BESSEY, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    FRED CRAIN v. STATE.
    No. A-5765.
    Opinion Filed Sept. 7, 1926.
    (248 Pac. 879.)

      George L. Zink, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted on an information which charged him with the unlawful sale of whisky to one Robert Williams, and in accordance with the verdict he was sentenced to be confined for 90 days in the county jail and to pay a fine of $300. The errors assigned question the sufficiency of evidence to support the verdict.

The complaining witness testified that he met the defendant in the town of Roosevelt, and told him that he wanted to buy a bottle of whisky, and the defendant left, and returned in about five minutes, and delivered to him a bottle of whisky. A few minutes later he was arrested, and the officers took from him the bottle of whisky. The defendant took the stand, and denied making the sale, and denied that he was in the town of Roosevelt at the time complaining witness testified the sale was made. Three or four witnesses testified, in support of the defendant’s alibi, that they had left Roosevelt with him about 10 that forenoon, and that they did not return there until about 6 o’clock that evening. In rebuttal, the officer who arrested the complaining witness testified that he saw the defendant talking to the complaining witness a few minutes before he made the arrest.

It is the settled doctrine in this state that this court will not attempt to determine the weight of the evidence. It is the function of the jury in the first Instance to determine what facts are established, and before a verdict, which has been approved by the trial court on motion for a new trial, can be set aside on appeal on the ground of the insufficiency of the evidence, it must be made to appear that there is no substantial evidence to support the verdict.

No other reason for a reversal of the judgment being urged, and no substantial error appearing in the record, the judgment appealed from is affirmed. ,

BESSEY, P. J., and EDWARDS, J., concur.


text:
    D. P. HORTON v. STATE.
    No. A-5778.
    Opinion Filed Sept. 7, 1926.
    (248 Pac. 878.)

      Meacham & Meacham and James W. Smith, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that defendant, D. P. Horton, in Washita county, on or about December 21, 1924, did “then and there unlawfully, intentionally, wrongfully, and feloniously shoot at one W. A. Welch, with a Colt’s automatic 32-caliber pistol,' pointed at and towards the body of him, the said W. A. Welch, with the felonious intent of him, the said D. P. Horton, to kill the said W. A. Welch, contrary to,” etc.

The defendant pleaded not guilty, and the trial was entered without objection in any form to the information. The jury rendered their verdict, finding “the defendant guilty of shooting at another, without justifiable or excusable cause, with intent to injure, although without intent to kill, as charged in the information herein, and fix his punishment at confinement in the state penitentiary for a term of three years.” Motion for new trial was duly made and overruled, and judgment rendered in accordance with the verdict.

It is assigned as error that the verdict of the jury is contrary to the law and the evidence, and is not sustained by sufficient evidence. The evidence for the state shows that on the date alleged the complaining witness, W. A. Welch, was driving in a wagon at a point on the highway about four miles south of Cordell; that the defendant drove up behind, and, in attempting to pass the wagon of this witness, drove his car into a ditch at the side of the road; that the defendant left his car, and climbed upon Welch’s wagon with an automatic pistol in his hand, and said to the complaining witness, “I ought to kill you; I believe I will,” and thereupon the defendant fired one shot at the said Welch from a distance of but a few feet, but missed his aim.

At the close of the evidence for the state there was a motion made by the defendant for a directed verdict, which was overruled. As a witness in his own behalf the defendant testified that he had a wrench in his hand, instead of a pistol, and that he did not shoot at Welch. The testimony of the defendant’s wife was in substance the same as that given by her husband.

There are some conflicts in the evidence, but they were for the jury to reconcile, and it was for the jury to determine whether any particular witness swore falsely, or drew too heavily upon his imagination, and the intent with which the assault was committed was a question for the jury. In our opinion there was sufficient evidence to warrant the submission of the case to the jury, both as to the assault and the defendant’s intent. It follows that the motion for a directed verdict of acquittal was properly overruled.

It is also assigned as error that the verdict returned is insufficient to authorize the judgment and sentence, in that it is indefinite and not responsive to the information, and is in effect a verdict for simple assault only. The court instructed the jury that the defendant was charged with the offense defined by the first clause of section 1756, C. S. 1921. Said section provides that:

“Any person who intentionally and wrongfully shoots at, or attempts to shoot at another, with any kind of firearm, airgun, or other means whatever, with intent to kill any person, * * * is punishable by imprisonment in the penitentiary not exceeding ten years.” .

The court also instructed on the included offense as defined by section 1764, C. S. 1921. Said section provides that:

“Any person who, with intent to do bodily harm, and without justifiable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm of airgun, or any other means whatever, with intent to injure any person, although without intent to kill such person or to commit a felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

An assault with intent to kill by shooting at another necessarily includes an assault with intent to injure, although without intent to kill. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739. The verdict finds the defendant guilty of the offense defined by section 1764, supra, and is in proper form. Coleman v. State, 16 Okla. Cr. 579, 194 P. 282.

We have carefully examined the instructions, to which no objection was made or exception reserved, and we think they clearly and correctly present the law of the case. The other assignments of error are not sustained by the record, and need not, therefore, be noticed.

We have examined the whole record with care, and, finding no prejudicial error, the judgment appealed from is affirmed.

BESSEY. P. J., and EDWARDS, J., concur.


text:
    TENEY WRIGHT et al. v. STATE.
    No. A-5573.
    Opinion Filed Sept. 8, 1926.
    (249 Pac. 356.)

      Johnston & Paddock, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Noble county on a charge of transporting liquor, each sentenced to pay a fine of $400 and to serve a term of 4 months in the county jail.

From the record it appears that theretofore the officers of Noble county had discovered a still and mash concealed in a secluded place in heavy timber, near the Arkansas river, at a point where an unfrequented road led near the river and there terminated. A few nights later they drove to the vicinity, concealed themselves, and lay in wait to discover the owner. After dark, while concealed, they saw the car of defendants drive into the timber toward the still, and a short time afterwards saw it returning. They hailed the car and there followed a crash of the breaking jugs; when they arrived at the car they found upon the ground the remains of some 8 or 10 jugs, and the ground was wet with whisky. They thereupon arrested the defendants, some one of whom made a statement that it was too bad to destroy such good liquor. The still was not far away, with a fire burning and the mash warm. Defendants testified that they had purchased the whisky from a stranger, who was just delivering it to them when the officers arrived. Defendant Wright testified that he broke the jugs; that the person from whom they were buying the whisky had escaped at the approach of the officers.

It is first argued that there was error in denying defendants their right of peremptory challenge. It appears, however, that some days before the trial the county attorney and counsel for defendants had agreed that the jury might be excused, except 6 men who would try this case. But at the beginning of the trial defendants claimed the right of peremptory challenge. The court held that by the agreement the right of peremptory challenge had been waived, but extended the right to challenge for cause. No challenge for cause was interposed, and the examination of the jurors shows them to be fair, competent jurors. The agreement between counsel for the discharge of the jury, except the 6 used, does not appear in the record. The fact of the agreement is not controverted, and, not being denied, no error is made to affirmatively appear, and it will not be presumed. It is also argued that the evidence is insufficient to sustain the verdict. Without further reviewing the evidence, we find it to be amply sufficient to sustain the verdict.

By supplemental brief, defendants’ counsel argue that under the evidence the punishment is excessive. It is shown that the defendants had not before been charged with a violation of the law; we are of the opinion that the punishment is excessive. As to each defendant, it will be modified to a fine of $200 and confinement in the county jail for a period of 60 days, and, as so modified, the judgment is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    FRANK STOKES v. STATE.
    No. A-5666.
    Opinion Filed Sept. 8, 1926.
    (249 Pac. 171.)

      L. A. Wallace, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information charges that in Okmulgee county, October 6, 1923, Frank Stokes did have possession of certain intoxicating liquor, to wit, 15 gallons of Choctaw beer, with the unlawful intent to sell the same. On the trial the jury returned a verdict finding the defendant guilty and fixing his punishment at confinement in the county jail for 30 days and a fine of $500. From the judgment rendered thereon, an appeal by transcript of the record proper was taken.

On the record before us we find that the information was sufficient, and the demurrer thereto was properly overruled. No objection was made nor exception saved to the instructions as given by the court. In the absence of a transcript of the testimony taken upon the trial, the other assignments of error are not presented by the record. The judgment appealed from is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    ALBERT BARNETT v. STATE.
    No. A-5664.
    Opinion Filed Sept. 8, 1926.
    (249 Pac. 165.)

      H. A. Grove, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants, Albert Barnett, Ben Roberts, and Harrison Dixon, did in Tulsa county, December 6, 1924, convey and transport 10 gallons of com whisky from a point unknown to a point 15 miles east of Tulsa on Lynn Lane highway. A trial was had thereunder and the defendants were found guilty, as charged in the information, the jury leaving the punishment to be fixed by the court. It was the judgment and sentence of the court that the defendant Robert Barnett pay a fine of $100 and be confined in the county jail for 60 days. From the judgment he appealed by filing in this eourt on June 29, 1926, petition in error with case-made, but no brief has been filed.

Evidence was introduced to the effect that 2 officers approached the car occupied by the defendants who appeared to be intoxicated. They noticed 2 five-gallon cartons between, the seats and asked the defendants what they contained; they said they contained com whisky. They defendant Barnett testified that he lived at Broken Arrow and was walking along the road with the defendant Roberts, when the defendant Harrison Dixon came along and asked them to ride; that he did not own the whisky.

The defendant Harrison Dixon testified that he was a taxi driver in Tulsa, and the other two defendants came to his house and hired him to take them out 5 miles northeast of Broken Arrow, and on the way back they were arrested by the officers; that the defendant Albert Barnett owned the whisky and got it near his mother’s house. We have examined the record and are satisfied that the defendant had a fair trial.

Finding the evidence sufficient and no prejudicial error of law occurring on the trial, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. B. COX et al. v. STATE.
    No. A-5651.
    Opinion Filed Sept. 8, 1926.
    (249 Pac. 158.)
    Madden & Hubbell, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Cotton county, February 9, 1925, “J. B. Cox and Lee Price, then and there being, did then and there willfully, unlawfully, wrongfully manufacture certain mash, to wit, 330 gallons of corn grain mash, fit for distillation and for the manufacture of beer, distilled spirits, and other alcoholic liquors, the sale, barter, giving away, and otherwise disposing of which is prohibited by the laws of the state.”

A trial was had thereunder, the defendants were found guilty as charged in the information, and the punishment. of each fixed at a fine of $150 and confinement for 60 days in the county jail. From the judgment rendered on the verdict they appealed by filing in this court petition in error with case-made, June 22, 1925, but no brief has been, filed and no further appearance made in their behalf in this court.

The undisputed evidence shows that the officers found a still and 6 or. 7 barrels of mash in a dugout occupied by the defendants, and another barrel of mash and a worm nearby. Also a sack partly full of sugar. The defendants did not testify. While the defendants are not represented in this court, we have carefully gone through the record and find it free from substantial error.

The judgment appealed from is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J. EDWARDS, J.

text:
    A. L. ALEXANDER v. STATE.
    No. A-5626.
    Opinion Filed July 31, 1926.
    On Rehearing, Sept. 8, 1926.
    (248 Pac. 873.)

      T. D. Taylor, for plaintiff in error.
    Geo. F'. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pitts-burg county on a charge of having unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and serve a term of 30 days in the county jail.

It is first contended that the court erred in not excluding evidence obtained by an illegal search. The record discloses that defendant presented a motion to suppress evidence as obtained by an illegal search. No evidence in support of this motion was offered. At the trial defendant objected to the introduction of evidence for the same reason. The officers who made a search testified that they had a search warrant, and that, the defendant not being at his place of residence at the time of the search, the same was tacked on the door. Section 7009, Comp. Stats. 1921.

Error is not presumed, but must be made to affirmatively appear. If the defendant sought to show that the proceedings in procuring the search warrant were invalid, it was incumbent upon him to introduce the records of such proceeding or to account for them. Having failed to do this, we cannot presume that the affidavit and warrant were invalid..

It is next argued that the state was permitted to prove the reputation of the defendant as a person engaged in the selling of Choctaw beer. The record upon this point shows that defendant first opened up this line of evidence, over the objection of the state. Having gone into the matter of reputation, it was the right of the state to rebut. Some other contentions are advanced, but they are without merit.

Finding no error that would warrant a reversal, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.

On Rehearing.

EDWARDS, J.

Since writing the former opinion, our attention has been called to the fact that the sufficiency of the evidence was challenged in the original briefs, and which contention was not disposed of in the opinion heretofore rendered. An examination of the case upon this point convinces us that this contention is well taken, that the proof of the intoxicating nature of the “choc beer” is very slight, and that the evidence of possession is circumstantial, and not of such conclusive character as to sustain the verdict.

The case is reversed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    W. H. JONES v. STATE.
    No. A-5661.
    Opinion Filed Sept. 11, 1926.
    (249 Pac. 354.)

      Carter & Carter, for plaintiff in. error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted on a charge of unlawful possession of intoxicating liquor and in accordance with the verdict of the jury was sentenced to confinement in the county jail for 30 days and to pay a fine of $300. He prosecutes this appeal for a reversal of the judgment on the ground that the court erred in admitting evidence that was illegally obtained without a search warrant, and that the verdict is not sustained by sufficient evidence, and is contrary to law.

The state relied for this conviction upon the testimony of John Cable, deputy sheriff, admitted over the defendant’s objection that it was obtained by an unlawful search of the defendant’s home without a search warrant. The testimony of the witness Cable shows that with Mack Shelton he went to defendant’s Home in the city of Okmulgee about midnight, knocked on the door, and defendant said, “Who is there?” and witness said, “The law is here, and we want to look you overthat defendant said, “Help yourselves that they went in and searched the house, but did not find anything, then they searched the back yard and found one half-gallon fruit jar and one half-gallon grape juice bottle; that about 2 hours later they arrested the defendant.. The state rested, and defendant moved for a directed verdict of acquittal, which motion was overruled.

As a witness in his own behalf the defendant testified that he had lived in Okmulgee 6 years with his wife and child; that he was a barber, and arrived home that Saturday night before midnight, and was in bed when Mr. Cable knocked on the door and said the law was there; that he told him that he did not have any whisky; the officers searched the house, tore down the colonnade between the sitting room and dining room, and pried up the floor; then they went out, and Mr. Shelton came back and asked for the key of the chicken house; that they were gone a good while, and he had gone to sleep, when Mr. Cable again knocked on the door and said, “Put your clothes on, we found some whisky,” and they took him to the courthouse; that, if they found any whisky on his premises, he did not know anything about it; that it was not his whisky.

The Bill of Rights is something more than a mere compilation of glittering generalities. Some of its provisions constitute a formal and public declaration of popular rights and liberties. The guaranty, in article 2, § 30, that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated,” should be respected by all peace officers and law-abiding citizens. Foreman v. State, 8 Okla. Cr. 480, 128 P. 1101.

“The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected by every court in the English speaking world, from Magna Charta dowrn to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic. The mere fact that a man is an officer, whether of high of low degree, gives, him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.” Smith v. State, 34 Okla. Cr. 934, 246 P. 1109.

This court has held repeatedly that in order to make an arrest and seizure without a warrant, under section 7014, C. S. 1921, there must be a violation of the prohibitory liquor laws committed in the presence of the arresting officer, and that where the officer does not know of the act constituting the offense it is not committed in his presence. Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Condron v. State, 31 Okla. Cr. 130, 237 P. 465; Childress v. State, 31 Okla. Cr. 208, 238 P. 218.

Because all the evidence offered by the state was obtained illegally, and in violation of the constitutional rights of the defendant, the judgment is reversed, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    KATHERINE VANDERWALKER v. STATE.
    No. A-5660.
    Opinion Filed Sept. 8, 1926.
    (247 Pac. 634.)
    Carter & Carter, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted upon a charge that she did have in her possession three gallons of corn whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of 3200 and be confined in the county jail for 60 days. From the judgment rendered on the verdict she appealed by filing in this court, June 23, 1925, petition in error with case-made; but no brief has been filed and no appearance made in her behalf in this court.

Bert Martin, city marshal of Beggs, testified that in executing a search warrant he visited the defendant’s rooming house in Beggs, and found a still and a barrel of mash in an outbuilding on the premises; that he found four gallons of corn whisky in fruit jars upstairs in the rooming house, and the defendant said it was her whisky. This was all the evidence in the case. The defendant did not testify.

After a careful examination of the record, we are satisfied that there was no error which could have been prejudicial to the defendant, and the judgment is affirmed.


author: BESSEY, P. J.

text:
    GUY STRONG et al. v. STATE.
    No. A-6079.
    Opinion Filed Sept. 11, 1926.
    (248 Pac. 1119.)
    Geo. W. Miller, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

This is a joint appeal from a conviction for a violation of the prohibitory law. The plaintiff in error, Guy Strong, has filed his motion to dismiss the appeal as to himself only. For good cause shown the motion is allowed, and the appeal as to Guy Strong is dismissed, with instructions to the court to issue mandate forthwith, and the appeal as to Frank Johnson is continued for further proceedings in due course.

DOYLE and EDWARDS, JJ., concur.


text:
    H. H. HANCOCK et al. v. STATE.
    No. A-5659.
    Opinion Filed Sept. 11, 1926.
    (248 Pac. 1115.)
    E. M. Carter and Harland A. Carter, for plaintiffs in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were jointly charged, tried, and convicted on a charge of unlawful possession of 3 pints of whisky, and in accordance with the verdicts they were each sentenced to confinement in the county jail for 30 days and to pay a fine of $300. To reverse the judgments they appeal, and assign as error that the trial court erred in admitting incompetent evidence over the objections of the defendant, and in refusing to strike such evidence, and that the verdicts returned by the jury are contrary to both the law and the evidence, and not supported by either.

The state relied for this conviction on the testimony of M. L. Lairmore and E. T. Mitchell, deputy sheriffs, admitted over defendants’ objections that it was obtained by an unlawful search. Their testimony shows that they visited the defendant’s place of business in Okmulgee and served a search warrant on the defendant, A. V. Hancock, who said, “Go ahead and search,” and that they found more than a quart in pint bottles.

The affidavit upon which the search warrant issued was introduced and showed that it was made by M. L. Lairmore, on information and belief that the defendants did have possession of intoxicating liquor in a building occupied by them as a residence and shop, on lots 1 and 2, block 16, in the city of Okmulgee.

As witnesses in their own behalf, each defendant testified that they did not have any liquor there, and that they did not waive their constitutional rights, and A. V. Hancock testified that a copy of the search warrant was delivered to him, that he did not tell the officers to “go ahead and search.”

The trial court held the affidavit upon which the search warrant issued was insufficient as having been made solely on information and belief, and that the search warrant issued thereon was void, but submitted the issue to the jury as to whether or not the defendants waived their constitutional rights.

The precise question presented was determined by this court in the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, wherein it was held that:

“A statement by defendant when officers showed her a liquor search warrant to ‘go ahead and search’ did not waive defendant’s constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search the premises, but rather a statement of the intention not to resist search under the warrant.”

The search and seizure was made under the authority of the search warrant, a copy of which was delivered to the defendant there present at the time. What this defendant might have said could not have prevented the search. The warrant itself and the return thereto refute all testimony of a waiver on the part of the defendants.

For this reason the court erred in overruling defendants’ motion to strike, and their motion for a directed verdict should have been sustained.

Because all the evidence offered by the state was obtained illegally and in violation of the constitutional rights of these defendants, the judgments of the lower court are reversed, and the cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J„ concur.


text:
    GEORGE HILL v. STATE.
    No. A-5841.
    Opinion Filed Sept. 13, 1926.
    (248 Pac. 1118.)
    Pryor, Stokes & Carver, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst Atty. Gen., for the State.
   PER CURIAM.

On August 6, 1926, the Attorney General filed his motion in this cause to dismiss the appeal, supported by a showing that the plaintiff in error had voluntarily placed himself without leave beyond the jurisdiction of this court, with the avowed intention of remaining beyond the reach of its process. The record further shows that counsel for plaintiff in error has been notified of such motion and has made no response. For good cause shown the appeal is accordingly dismissed, with direction to the trial court to issue process to enforce the original judgment therein rendered in case the plaintiff in error can be hereafter apprehended.


text:
    RAY SHARPE v. STATE.
    No. A-6058.
    Opinion Filed Sept. 13, 1926.
    (248 Pac. 1119.)
    Rummons & Hughes, for plaintiff in error.
   PER CURIAM.

Ray Sharpe, plaintiff in error, filed his appeal from a judgment of conviction for violating the prohibitory liquor law on February IS1, 1926. On July 8, 1926, he filed his motion to dismiss the appeal. Upon consideration of the showing made and the record before us, it appears that there is no merit in the appeal, and that the same should be and is hereby dismissed, with direction to the trial court to issue process to enforce its judgment rendered in that court. ■ ■ -


text:
    MRS. J. E. MORGAN v. STATE.
    No. A-5653.
    Opinion Filed Sept. 14, 1926.
    (249 Pac. 354.)
    L. A. Wallace, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Mrs. J. E. Morgan was convicted on a charge of possession of intoxicating liquor with intent to sell, and her punishment fixed at confinement for 3 months in the county jail and a fine of $300. From the judgment entered on the verdict, this appeal is taken.

The only assignments of error necessary to notice are that the court erred in overruling the motion for a new trial, and that the verdict is not sustained by sufficient evidence, and is contrary to law. The evidence shows that three deputy sheriffs went to the defendant’s home to serve a bench warrant upon one Theo. Garret; that they inquired for Garret at the house and found he was not there, then went into the cornfield, ostensibly to break up some barrels, from which they had poured mash in a raid the night before, and observed Mrs. Morgan covering a stone jug; that when she saw the officers she returned to the house; that the jug contained corn whisky, and they went to the house and arrested Mrs. Morgan for the possession of the whisky.

The officers each testified that the search and seizure were made without a search warrant. When the state rested, there was a motion to strike and a motion for a directed verdict, which motions were overruled.

As a witness in her own behalf, Mrs. Morgan testified that she is the wife of J. E. Morgan; that she is the mother of 13 children, and lives on a farm northeast of Morris; that she had started out to pick some beans, noticed the jug, and thought she would hide it to keep her husband from drinking the whisky; that she was against drinking, and did not want her husband to have the whisky; that she did not own the whisky, and did not move the jug from where it was, and knew nothing about it until she found it there partly buried; that she started to the well and met the officers, and they arrested her and took her to jail; that this was the first time she was ever arrested.

To warrant or sustain a conviction there must be evidence sufficient to prove that the offense was committed, and also inculpate the defendant with the commission of it, as charged in the information. Upon a careful consideration of the record, we are convinced that there is not sufficient evidence to sustain a conviction.

The judgment is therefore reversed.

BESSEY, P. J., and EDWARDS, J., concur.


author: DOYLE,. J.

text:
    J. E. MORGAN v. STATE.
    No. A-5652.
    Opinion Filed Sept. 14, 1926.
    (249 Pac. 353.)

      L. A. Wallace, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE,. J.

J. E. Morgan was convicted on a charge that he did have the possession of 250 gallons of malt mash, fit for distillation, with intention of manufacturing alcoholic liquor, and in accordance with the verdict of the jury he was sentenced to pay a fine of $200 and be confined in the county jail for 6 months. The errors assigned question the sufficiency of the evidence to support the verdict.

John Cable testified that with two other officers he . visited the defendant's place, P/¡ miles east of Pumpkin Center, Okmulgee county, and found 4 barrels and 2 five-gallon water bottles full of mash in a state of fermentation that made it ready for the still, about 70 yards from the defendant’s house, on his place, and that the defendant was sleeping in the yard drunk. The state rested, and the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

As a witness in his own behalf, defendant, Morgan, testified that he had hauled the stuff there that night, that a party gave it to him for his hogs, that it had been run, and that it was what they call runnings from the still, and that it was not fit for distillation. It is well settled by this court that it will not undertake to pass upon the weight of the evidence, and, unless here was no substantial evidence to justify the verdict, or that it was the result of passion, prejudice, or partiality on the part of the jurors, it will not interfere.

We discover no error in the record proper. The judgment is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    WILLIAM STUART v. STATE.
    No. A-5858.
    Opinion Filed Sept. 15, 1926.
    (249 Pac. 159.)

      Hargis & Yarbrough and L. G. Williams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of múrder and sentenced to life imprisonment.

W. W. Chastain was shot and killed on Sunday, February 1, 1926, between 10:30 and 11 a. m., while riding a horse on the public highway between Wynona and Hominy. It was evident that the horse ridden by Chastain came to a sudden stop, and deceased was pitched over the head into the road. He was seen but a few minutes before that riding in a lope. One Adams, traveling in an automobile, discovered the body. The shot which caused death was from a thirty-two caliber gun, the bullet entering the body in the front of the right side, ranging upward, indicating that the shot was fired by someone on the ground. Defendant on the date of the homicide was engaged in walking a pipe line, and, on this day, left his home about 7 or 7:30 for this purpose and went to the south end to walk north. He was at the house of the witness Myers on this morning and left about 10:20 to walk the pipe line. While at Myers' house, he made statements indicative of hostility toward deceased. Another witness, Cates, immediately after he heard a shot or shots fired, saw some person whom he rather indefinitely identified as defendant, run from the scene of the shooting toward defendant’s home. There were several other circumstances tending to connect defendant with the homicide. The defense was an alibi.

Various assignments of error are argued in the brief. They may be summarized as follows: First, that the verdict is not supported by the evidence; second, the admission of incompetent and immaterial evidence; third, the exclusion of competent evidence offered by defendant; fourth, error in the court’s instructions. These assignments will be considered in the order named.

Upon the first assignment it is contended that, since the evidence is entirely circumstantial, it is not sufficient to exclude every reasonable hypothesis except the guilt of the defendant. It is admitted that there is some evidence that the defendant was seen going toward the scene of the homicide a short time prior to the time of the shooting, and was seen leaving the scene of the shooting shortly thereafter; that footprints near the body were similar to footprints found near defendant’s home; that the footprints in question were made by someone wearing rubbers, and a pair of rubbers were seen at defendant’s home a few days later; that defendant had had a misunderstanding with deceased and had made threats against him; that some 2 months before the homicide one of defendant’s sons had a pistol of the same caliber as that with which deceased was hilled, and some shells of the same caliber were found at defendant’s home not long after the shooting. The defendant contends that the evidence touching these various points is conflicting and inconclusive, that the proof is not of that positive character required to support a verdict resting entirely on circumstantial evidence, and in several particulars rests upon incompetent evidence. It has been held often by this court that, where the evidence is wholly circumstantial, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and that they cannot be regarded as sufficient when they are of such a character as to fairly permit an inference consistent with innocence. England v. State, 29 Okla. Cr. 38, 231 P. 1087; Tomlinson v. State, 27 Okla. Cr. 429, 228 P. 608. Passing for further consideration the competency and materiality of the evidence, we believe that the evidence introduced was sufficient on the facts to carry the case to the jury and to sustain the verdict.

Under the second assignment — i. e., the admission of incompetent and immaterial evidence — numerous specifications are set out. Complaint is first made of the admission of the testimony of Arthur Tribble, a boy 6 years of age, on the ground that this witness is not shown to be competent, under the provisions of section 589, Comp. St. 1921. The material part of this section is:

“The following persons shall be incompetent to testify: * * * Second: Children under 10 years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. * * *”

This statute has been considered by this court in the following enlightening cases; Adams v. State, 5 Okla. Cr. 347, 114 P. 347; Walker v. State, 12 Okla. Cr. 179, 153 P. 209; Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A. L. R. 638 (note) Siegler v. State, 11 Okla. Cr. 131, 145 P. 308; Barker v. State, 33 Okla. Cr. 25, 242 P. 274.

In the latter case a child 6Vs years old was held competent to give testimony. The competency of a witness is a matter addressed to the sound discretion of the trial court. It is a mixed question of law and fact td be determined by the trial court upon an examination of the witness. The cases in considering this question frequently discuss the knowledge of the witness of the sancity or significance of an oath, his knowledge of God, or a belief in future rewards and punishments. This is not the test fixed by the statute. The statute rejects the witness “under 10 years of age who appears incapable of receiving just impressions of the facts concerning which they are examined, or of relating them truly.” Measured by this test, the testimony of this witness is clear, direct, and indicates that the witness received just impressions of the simple facts he testified to, that he clearly comprehended the questions asked, and answered them truthfully. It is not made to affirmatively appear that he is incompetent. We see no reason to disturb the ruling of the trial court on this point.

It is also urged under this assignment that the court admitted evidence of several witnesses that they had not seen defendant at any other place on the morning of the homicide. This evidence was negative in character and at the time admitted was not particularly material but was proper to have been given in rebuttal. As heretofore stated by this court, however, it would require an unusual state of facts to constitute material error on account of the order in which competent evidence introduced.

It is also urged that evidence of the action of a son of the defendant in the presence of persons at the house of defendant in the absence of defendant was incompetent and prejudicial. This was no part of the res gestae; it was incompetent, and not binding on defendant. The jury may have taken it as evidence that the son knew of the guilt of his father.

The witness Pyle was permitted to testify over the objections that certain footprints near the body were made by the same shoe that made tracks near defendant’s residence, as follows:

“Q. You say you found some tracks leading away from this place? A. Yes, sir.
“Q. Were they made by the same shoe that made the tracks leading up to the highway? * * *
“The Court: Yes, sir.
“By Mr. Hall: If you know. * * *
“A. Yes, sir, made by the same shoe. * * *”

Unless the matter is one calling for expert testimony, it is the province of a witness to state facts, not conclusions. The admission of conclusions, before the witness has shown his qualifications in making observations or tests, is error. Heidelbaugh v. State, 79 Neb. 499, 113 N. W. 145.

The witness Lewis was permitted to testify to a conversation with Dewitt Stuart, a son of defendant, in the absence of defendant. A part of this testimony is as follows:

“Q. Did you have any conversation with Dewitt (Mr. Stewart’s son) since that time about a .32 automatic pistol, or did he with you? * * * A. Yes, sir. * * *
“By Mr. Templeton: You say you did have? A. Yes, sir.
“Q. About how long after Chastain was killed was this? * * * A. Well, I could not tell you about how long it was, it was somewhere about the time they had Dewitt in jail down at Hominy and he got out. * * *
“Q. What did he say to you about a .32 automatic pistol ? * * * A. He tried to get me to swear that I was the one that he sold the pistol to during—
“ * * * A. He tried to get me to swear that I was the one he sold a .32 automatic pistol to during Thanksgiving time; see? * * *
“By Mr. Templeton: What, if anything, did he say as to whether or not he had a pistol at that time, Charley? * * * A. He said that if he could get me to swear that I was the one he sold the gun to, to get him out of jail, so that would clear him from jail. * * *
“By Mr. Templeton: What did he say about produc-mg a gun at that time? * * * A. He said that if he could get a fellow, see, that — could get me to swear that I was the one he sold the gun to, that would let him out of jail, provided he could get me, provided he could not find the fellow he sold the gun to. * * *
“By Mr. Templeton: What, if anything, did he say to you about being able to produce a gun if you would testify to that? * * * ,
. “Q. I will ask him a question again: Charlie, did he tell you he could produce this gun if you would testify to that, or did he tell you he could not? * * *
“By Mr. Templeton: What did he say as to that? A. He said he could produce a gun. * * *”

In substance, this testimony is that Dewitt Stuart endeavored to get the witness to swear falsely that he had purchased a thirty-two automatic from Dewitt Stuart prior to the homicide. Dewitt Stuart was not a witness in the case. No connection or knowledge of this attempt of Dewitt Stuart to procure this testimony, if it took place, was proven against defendant. The evidence was incompetent and prejudicial. Cecil v. Territory, 16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457; Bruner v. U. S., 1 Okla. Cr. 205, 96 P. 597; Williams v. State, 10 Okla. Cr. 348, 136 P. 778; Satterfield v. State, 31 Okla. Cr. 309, 238 P. 868.

It is also argued that the trial court permitted witnesses for the state to testify that the reputation of defendant, as a law-abiding citizen, was bad. The defendant offered evidence of good reputation. The state in rebuttal offered evidence that his reputation was bad. The witnesses were asked as to the reputation of defendant, not as to his general reputation. This, it is contended, was error. The impeachment of a witness by showing bad character should be as to his general reputation and not reputation merely. State v. Frederickson, 81 Kan. 854, 106 P. 1061; Watson v. State, 181 Ala. 53, 61 So. 334.

Here, however, it is obvious that while the questions were of reputation and did not specify general reputation, yet it is apparent that general , reputation was meant, and, while the court should have limited the qualification of the witness in proper form to general reputation, yet, we think, the failure to do so was not material error. Defendant’s counsel, if they saw fit upon cross-examination, might have fully tested the knowledge of the witnesses.

Upon the third assignment — i. e., the exclusion of competent and material evidence offered by defendant — the defendant sought to show that the witness Cates, who testified in substance that he saw defendant leaving the scene of the shooting soon after it occurred, did not positively identify defendant, and that the testimony in the preliminary was different from that in the trial. Upon this point a colloquy in the presence of the jury between the court and counsel for defendant took place:

“The Court: What is your offer?
“Mr. Hargis: I offer to prove that the answer to that Question was: ‘No, I didn’t recognize the man right at the present moment.’
“The Court: Well, you cannot prove it by this record because that is not here.
“Mr. Hargis: Your honor, I am now asking her — -
“The Court: You are offering to prove by this record and the record does not so show.
“Mr. Hargis: I apprehend that in this matter the witness ought to be permitted to answer or not to answer, one of the two, and that the court or counsel should not say what the record shows, and then one of them say what it does show, and one to say what it does not show.
“The Court: No, sir, you offered to prove a certain thing by this record, and that record does not show what you offer to prove, I say, so the offer is not true.* * *
“The Court: What is it you are offering to prove?
“Mr. Hargis: Just exactly what I quoted, that the answer would be: ‘No, I didn’t recognize the man at the present time;’ I am offering to prove that by this witness. * * *
“The Court: I sustained the objection, and then as I understand you, you offer to prove a certain thing that the witness would not answer to a certain thing; now the record here does not show that she would testify to what you offer to prove.

Mr. Hargis: Your honor is ruling in one breath that the witness is not competent—

“The Court: I will hold that you cannot even offer to prove the thing you said.
“Mr. Hargis: Your honor, I will have to disagree with the court, and of course the court will rule out my offer; I am seeking to make this record, and if your honor excludes me from making that proof, then we will make an offer in order to preserve the record.
“The Court: That is what I want you to do, but not to make an offer of something that is not true. * * *”

A colloquy of this character was out of place in the presence of the jury. It might be construed by the jury as a statement by the court that the offer of proof was of evidence which was not true. Evidence that the witness at the preliminary testified differently, if a proper predicate was laid, was competent as impeaching evidence. Where testimony is excluded, it is improper to state in the presence of the jury an offer of proof, but if permitted to be stated, it is improper for the court to comment on its truthfulness.

It is also contended that the court erred in instruction No. 10. This instruction is upon the law of circumstantial evidence; no complaint is directed to it except the concluding sentence, which is: “The law makes no distinction between direct evidence of a fact or circumstances from which the existence of a fact may be inferred.” In the abstract this is true; the instruction taken as a whole is not subject to the criticism directed against it. This court on numerous occasions has approved instructions upon circumstantial evidence, and the substance of the law as there stated should be closely adhered to. Howard v. State, 2 Okla. Cr. 200, 101 P. 131; Carter v. State, 6 Okla. Cr. 232, 118 P. 264.

Complaint is also made of the court’s instruction No. 11, stating the law of alibi. This instruction correctly states the law until the concluding part where the jury are told that if they entertain a reasonable doubt as to “whether defendant was in such other place’’ at the time of the alleged commission of the crime, then they should give him the benefit of the doubt and acquit him. This was error. Buck v. Territory, 1 Okla. Cr. 517, 98 P. 1017; Thompson v. State, 6 Okla. Cr. 50, 117 P. 216; Courtney v. State, 12 Okla. Cr. 169, 152 P. 1134; Davis v. State, 17 Okla. Cr. 604, 191 P. 1045. The instruction should have informed the jury that if they had a reasonable doubt as to whether defendant was at the place of the crime, then the defendant should have been given the benefit of the doubt and acquitted. We recommend the following as a correct form of instruction on the law of alibi:

“The defendant has interposed in this case as one of his defenses what is known in law as an alibi. That is, that the defendant was at another and different place at the time of the commission of the crime charged. The law is that such a defense is proper and legitimate and the jury should consider all of the evidence bearing upon this point whether introduced by the state or the defendant, and if after a careful consideration of all of the evidence in the case the jury entertain a reasonable doubt as to whether the defendant was present at the time and place where the crime was committed, if it was committed, then and in that event the jury should give the defendant the benefit of the doubt and acquit him.”

In considering the record presented, none of the errors pointed out, standing alone, except possibly the error in admitting the overture to procure false testimony by Dewitt Stuart, would require a reversal. The various errors taken all together are such that we find defendant did not have that fair trial which the law guarantees.

The case is, therefore, reversed and remanded.

The warden of the penitentiary will surrender the plaintiif in error to the sheriff of Osage county, who will hold him in custody until he shall be discharged, or his custody changed by due course of law.

BESSEY, P. J., and DOYLE, J., concur.


text:
    Ex parte MELINDA COONROD RICE.
    No. A-6371.
    Opinion Filed Sept. 15, 1926.
    (248 Pac. 1119.)
    Brown Moore, for petitioner.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an application for writ of habeas corpus, alleging that petitioner, Melinda Coonrod Rice, is restrained of her liberty and unlawfully imprisoned in the county jail of Payne county by the sheriff of said county. It is averred that petitioner is charged with unlawful possession of intoxicating liquor, and that her bail is fixed a,t the excessive and unreasonable amount of $2,000 for her appearance for trial in the county court of Payne county; that said petitioner resides upon her farm and homestead, and has resided there for more than 36 years last past, and is the mother of five children; that she has been unable to give said excessive bail, and the same is in violation of her constitutional and statutory rights; and praying that she be admitted to bail in a reason^ able sum in said cause. Following the rule stated in Ex parte Hayworth, 34 Okla. Cr. 41, 244 P. 827, and upon consideration of the proof offered, we are of opinion that the bail fixed by the trial court is excessive, and clearly disproportionate to the offense involved. It is therefore considered, adjudged, and ordered that the bond required be reduced to $500, bond to be conditioned as by law provided, or, in lieu thereof, a cash deposit of $500 with the court clerk of said county, and, upon the approval of the bond by the court clerk, or deposit aforesaid, the respondent is directed to discharge petitioner.


text:
    SAM KIRK v. STATE.
    No. A-5506.
    Opinion Filed Aug. 14, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 1119.)
    J. F. Thomas, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Sam Kirk, plaintiff in error, was in the county court of Comanche county found guilty of transporting intoxicating liquor, with his punishment assessed at a fine of $50 and confinement in the county jail for 30 days. The plaintiff in error has filed no brief in support of his appeal. An examination of the record shows that the information and the evidence supporting it were sufficient to sustain the conviction. The judgment of the trial court is therefore affirmed.


text:
    F. G. GREEN v. STATE.
    No. A-5524.
    Opinion Filed May 29, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 1114.)
    R. C. Roland, for plaintiff in error.
    . Geo,. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of selling intoxicating liquor, and sentenced to serve SO days in the county jail and to pay a fine of $50.

The only assignment of error argued in the brief is that the evidence is insufficient to sustain the judgment. The evidence is brief, but a witness for the state testifies positively that on the date charged he bought a pint of whisky from the defendant and paid him therefor the sum of $2. He is corroborated by another witness who testified he was with him at the time. Defendant denied that he sold the whisky, and testified that he was at his son’s place in Love county at the time charged for the purpose of attending a birthday party, and he claimed that two other persons accompanied him. He did not call his son or either of the two persons, nor his wife, nor introduce evidence to support his defense. The evidence is sufficient, and its weight and credibility was for the jury.

The case is affirmed.


text:
    TOM ARMSTRONG v. STATE.
    No. A-5529.
    Opinion Filed June 2, 1926.
    Rehearing Denied Sept 18, 1926.
    (248 Pac. 877.)
    W. P. Hickok and J. H. Antrobus, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county on a charge of transporting intoxicating liquor and sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50.

Two contentions are argued by defendant: First, that the court had no jurisdiction of the cause; second, that the court had no jurisdiction of the person of defendant. An examination of the record discloses that a complaint was filed before the county judge as a committing magistrate, charging a felony under section 6991, Comp. Stat. 1921, as a second violation of the prohibitory liquor law. It further appears that the district court held the information stated only a misdemeanor, and ordered it transferred to the county court, evidently reasoning that an information charging a misdemeanor could be transferred to the county court for trial, under section 2353, Comp. Stat. 1921, in the same manner as an indictment. This court, in the case of Wychoff v. State, 6 Okla. Cr. 122, 116 P. 3.55, held that an information charging a misdemeanor conferred no jurisdiction on the district court, and could not be transferred, but must be dismissed. So, conceding that the proceedings in the district court were a nullity, we see no reason why an information could not be filed in the county court charging a violation of the prohibitory liquor law. This was done, although the information was styled, “amended information.” The county court acquired jurisdiction of the cause. This would be true although an information charging a felony based on the same state of facts was pending in the district court, since a pending prosecution in the district court would not constitute jeopardy.

Considering the further assignment that the court had no jurisdiction of the person, defendant argues that no warrant was issued, and that he did not submit himself to the jurisdiction of the court. Upon his arraignment, defendant filed what is called a special appearance and objection, in which the jurisdiction of the person is challenged as follows:

“Comes now the defendant, Tom Armstrong, in the above-entitled cause, and appears specially for the purposes of these objections only, and alleges and states to the court that he objects to the arraignment of defendant herein and to the requirement of the court that he plead to the charge contained in the pretended amended information herein, for the reasons following, to wit: First, for the reason that the court has no jurisdiction of the person of the defendant.”

This special appearance and objection is not verified. No proof was made or offered to be made in support of it. It will be observed that it fails to allege that no warrant had been issued and served on defendant, and fails to allege that the defendant was not lawfully arrested without a warrant. We cannot ascertain from this objection to the jurisdiction of the person just what it is claimed was lacking to give the court jurisdiction of the person of defendant. Jurisdiction of the subject-matter cannot be conferred by consent, nor can it be waived, and it may be raised at any time before or after trial, and even for the first time in the appellate court. Gibbons v. State, 5 Okla. Cr. 212, 115 P. 130; Crump v. State, 7 Okla. Cr. 535, 124 P. 632; Brown v. State, 9 Okla. Cr. 382, 32 P. 359; 16 C. J. p. 184, note 7.

Jurisdiction of the person however, is an entirely different matter. It may be acquired by the arrest of a defendant upon a warrant, or it may be acquired by a voluntary submission of a defendant to the jurisdiction of the court, or it may be acquired by a legal arrest of a defendant without a warrant. Section 2471, Comp. Stat. 1921. The presumption is that the proceedings in courts of record are regular, and the burden to show clearly the irregularity complained of is on one who questions such proceedings. Lancaster v. State, 2 Okla. Cr. 682, 103 P. 1065; Killough v. State, 6 Okla. Cr. 312, 118 P. 620; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121.

The filing of an unverified motion by a defendant at the time of his arraignment, making the bare statement that the court has no jurisdiction of his person, without specifying any ground for lack of jurisdiction and without tendering any proof in support of such allegation, is not sufficient to overcome the presumption of regularity.

The error complained of not being made to affirmatively appear, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    JOHN O. BAGGETT v. STATE.
    No. A-5606.
    Opinion Filed June 2, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 875.)
    Welch & Welch, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted of statutory rape, alleged to have been committed in Push-mataha county May 14, 1924, toy accomplishing an act of sexual intercourse with Rubby Lee Orr, a female person under the age of 16 years, to wit, 15 years, and not his wife. The jury requested the court to assess the punishment. Motion for new trial was duly filed and overruled, and by the judgment of the court he was sentenced to imprisonment in the state penitentiary for a term of three years.

The following statement of the material facts will answer the purpose of our consideration of this appeal. It appears that the families of defendant and the prose-cutrix had lived many years as neighbors in or near Tus-kahoma; that on May 14th, about 3 p. m., defendant, meeting prosecutrix on the street, invited her to ride with him. She accepted, and he drove by the post office, where she mailed a letter. Then he drove out in the country.

Defendant appears to be of age.

Prosecutrix testified that after going a few miles he attempted to kiss her, and she objected and told him to drive her home. He turned into a byroad, stopped the car, and made an attack upon her; she stepped out on the running board; he grabbed her by the arm, threw her down, and in spite of her struggles and resistance had intercourse with her; then he told her to get back in the car, and he drove to her home, where she immediately made complaint to her sister and mother; that there were bruises on her legs, on her arms, and her underclothes were torn.

Two doctors were called, and medical examination was had within an hour after she returned home. Dr. Huckabay testified that he found her very nervous; that she had abrasions, bruises, and scratches on her limbs and lacerations of her private parts.

The officer who arrested defendant that afternoon testified that defendant made a statement to him, which statement it appears coincides with the testimony given by the prosecutrix, except as to her resistance.

To the same effect is the testimony of the under-sheriff as to voluntary statements made by defendant that evening in the county attorney’s office in the presence of several persons.

At the close of the evidence for the state there was a motion by counsel for defendant for a directed verdict of acquittal, which was overruled and exception allowed.

The defendant did not testify.

There can be no question as to the sufficiency of the evidence to justify submitting to the jury the question as to defendant’s guilt.

One of the grounds of the motion for a new trial, and here assigned as error, was that, the county attorney being disqualified, the court appointed Edward M. Box as special county attorney in this cause, and afterwards appointed John Cocke as special county attorney in this cause; that neither of said attorneys was qualified as the law directs; and that said John Cocke conducted the trial, not being qualified as the law directs.

The record fails to show that objection was made or exception reserved to the appointment of John Cocke as special county attorney in this case. The record shows that the information is signed by Edward M. Box, county attorney; that he resigned his office, and, his successor being disqualified, the court, by an order entered, appointed Edward M. Box as special county attorney to try this case; that, he failing to appear when the case was called on defendant’s demurrer to the information, the court appointed John Cocke as special county attorney in this case. .

Chapter 35, article 7, of the Compiled Statutes of 1921, which creates the office of county attorney, and prescribes the duties, further provides (section 5745) :

“The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may appoint, by an order to be entered in the minutes of the' court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed-”

Our Procedure Criminal provides:

“If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.” Section 2725, C. S. 1921.

In Hisaw v. State, 15 Okla. Cr. 484, 165 P. 636, these sections were construed. Judge Matson, in writing the opinion of the court, used the following language:

“Independent of the statute, however, the court would have the inherent power to appoint a special county attorney under any of the circumstances therein enumerated. It is essential to the very life of the court that the proper officers be in attendance upon it. The power to appoint such officers is necessary for the protection and existence of the court and absolutely ; essential to the administration of justice and the enforcement of all our laws. It would be an indefensible reproach upon our institutions if crimes should go unpunished and the public business remained unattended to for want of power in a court of general jurisdiction to appoint some one to supply the place of the regular elected officer when absent from court or disqualified to act. The courts of this state are not powerless to this extent. They have the right and power to preserve their life, and the machinery of the court cannot be kept in motion without Its proper officers. It is therefore an inherent power of the presiding judge of the. court to supply these officers when there is a temporary vacancy or a disqualification in any particular case. We conceive it our duty therefore to give the foregoing statute a broad, practical, and common sense construction in order to carry into effect the purposes for which it was enacted, and to give expression to this inherent power of courts of general jurisdiction in this state. * * *
“The latter statute permits the court to appoint a special county attorney for the trial of any particular case where the regular county attorney is disqualified. These statutes are merely expressive of the inherent powers of a court of general jurisdiction, and when it is made to appear, as it does in this case, that a contingency arose under which it was proper for the court to appoint a substitute for the county attorney, although the appointment be made in vacation, if afterwards in open' court the same judge recognizes the appointment and permits a qualified person to act upon the trial in the place and instead of the disqualified county attorney, there has been a sufficient compliance with the statutory requirements to validate said appointment.”

The record shows that the second appointment was made because the one first appointed failed to appear in court. It being admitted that the regular county attorney was disqualified, the court had the power to appoint a special county attorney to represent the state in this ease, and the person appointed was, under the statute, vested with all the powers and jurisdiction of the county attorney.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    GEORGE HARDY v. STATE.
    No. A-5505.
    Opinion Filed June 7, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 874.)
    B. C. Franklin, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, George Hardy, here designated the defendant, was charged with the illegal possession of one-half gallon of whisky, with the unlawful intent to barter and sell the same in violation of the prohibitory laws of this state. By verdict of the jury he was found guilty as charged, with the penalty fixed at a fine of $500 and 180 days in jail.

The evidence shows that several peace officers went to the home of the defendant, and under authority of a search warrant searched the premises and found nothing; that as they approached the residence the officers observed the defendant standing at or near the comer of a house adjacent to his home; that there was a wire netting fence between the two houses and an open space of gate and a well-worn path leading from one house to the other. After defendant’s residence had been searched the officers searched the adjoining house and premises and found a jug of whisky concealed in an ash heap. They also found certain openings in the floor of this second house, and one of the officers went underneath and found a shelf constructed between the joists and on this shelf several quart bottles of whisky. The defendant was immediately placed under arrest, and, according to the testimony of one of the officers, made statements indicating that the liquor found belonged to him. It was also developed in evidence that this house in which the liquor was found had previously been in the possession of the defendant, but at the time of the raid, according to the defendant’s claim, was not in his possession or under his control. It seems that this house was a sort of “squatter’s” house, or temporary residence for first one person and then another. It was partly furnished, and at one time a brother of the defendant, and at another time his sister, had lived there.

The defendant urges that the search warrant was predicated upon an insufficient affidavit. While the affidavit was not a model in form or substance, it did state in positive terms that the place described was a place where intoxicating liquor was being manufactured, sold, bartered, and given away in violation of law, and where it was kept in storage for such purposes; that it was a private residence that was being used as a place of public resort and for the storage and furnishing of intoxicating liquors. We think that the affidavit was sufficient to meet one of the tests heretofore announced— namely, that if the averments therein contained were false it would furnish a basis for a perjury charge. Howell v. State, 33 Okla. Cr. 292, 243 P. 997; Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

We also think that the allegation that the place was a place of public resort and a place where liquor was kept for illegal distribution, distinguishes this case from the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, and the holding in that case does not, therefore, apply.

The objection to the introduction of evidence procured by this search and seizure was properly overruled for another reason. The immunity from prejudicial consequences of an illegal search and seizure is a personal one, pertaining to the property, person, and eifects of the accused only. The defendant has no right to complain of an illegal search and seizure on the premises of another, even though evidence to be used against him be there obtained. Phelps v. State, 33 Okla. Cr. 380, 244 P. 452.

Notwithstanding the fact that the liquor was not found upon the premises described in the search warrant, we think the jury were amply justified in finding, that it did belong to the defendant, and that it was being kept there for an unlawful purpose.

All of the issues raised by the evidence were exceptionally well stated in the court’s instructions to the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    VERNON ARTHURS et al. v. STATE.
    No. A-5451.
    Opinion Filed April 10, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 873.)

      Bristow & McFadyen, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Caddo county on a charge of grand larceny, and sentenced to serve a term of 6 months in the state penitentiary. The case was tried in September, 1924, and the appeal lodged in this court in October, 1925. No briefs have been filed, and no appearance for oral argument made.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is submitted, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent, the case will be affirmed.

We have examined the record and find that it properly charges the offense of grand larceny, and have read the evidence, and it fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    SIMPSON KEMP v. STATE.
    No. A-5610.
    Opinion Filed July 31, 1926.
    Rehearing Denied Sept. 18, 1926.
    (249 Pac. 1116.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged in the county court of Oklahoma county with having possession of a still. Upon arraignment, he was informed by the county court of his right to have 24 hours to plead, and to have counsel, and of the consequences of his plea. He informed the court that he did not desire counsel, nor time to plead, and entered his plea of guilty. The court set the following day for passing sentence.

On the following day defendant appeared with counsel, asked to withdraw his plea of guilty, and to enter a plea of not guilty. After considerable colloquy, this was denied, and the court sentenced the defendant to serve 60 days in jail, and to pay a fine of $200, from which judgment and sentence defendant duly prosecuted this appeal.

Defendant contends that the act of the Legislature under which the prosecution was had is unconstitutional, for the reason that the statute (chapter 42, Session Laws 1923-24) was enacted • at a special session of the'Legislature, the subject whereof was not submitted by the Governor, as required by section 7, art. 6, of the Constitution. Said section 7, art. 6, is as follows:

“The Governor shall have power to convoke the Legislature, or the Senate only, on extraordinary occasions. At extraordinary sessions, no subject shall -be acted upon, except such as the Governor may recommend for consideration/’

The extraordinary session at which the law was enacted was convoked on January 15, 1924, upon call of the Governor, who submitted a message of various subjects for the action and consideration of the Legislature, the twelfth of which is as follows:

“General Subject 12. The manufacture, possession or transportation of any beer, wine, distilled spirits or liquor in violation of the prohibitory law.”

This is the only authority for the enactment of the law in question. It is argued that the submission of the subject of manufacture, possession, or transportation of intoxicating liquor is not broad enough to authorize the enactment of a law forbidding the possession and use of vessels to be used for the purpose of manufacture. If the subject submitted by the Governor properly includes in its broad general sense the possession of vessels and appliances, such as a still, for the manufacture of whisky as a part of its general subject-matter, the act should be held valid; otherwise it is unconstitutional as not having been submitted by the Governor. The word “subject,” as used in section 7, art. 6, is used in the same sense as in section 57, art. 5, of the Constitution, which requires that every act of the Legislature shall embrace but one subject which shall be clearly expressed in its title. Construing the latter section, this court in Re Powell, 6 Okla. Cr. 495, 120 P. 1022, in considering a law for the care of delinquent and dependent children, held:

“(,a) It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient, if the title contains a reasonable intimation of the matters under legislative consideration, to state the subject of the bill in general terms, and with fewest words, in accordance with the general custom to which the framers of the Constitution intended the Legislature to conform.
“(b) When there are numerous provisions having one general object, the title is sufficient if it fairly indicates the general purpose of the act. The details providing for the accomplishment of such purpose are to be regarded as necessary incidents.” ,

The Supreme Court of this state has frequently corn sidered the latter clause of the Constitution, and its holdings are in harmony with the views just stated. Rea, etc., v. State ex rel., etc., 29 Okla. 708, 119 P. 235; In re Menefee, etc., v. State, 22 Okla. 365, 97 P. 1014; Leedy v. Brown, 27 Okla. 489, 113 P. 177; In re Lee, 64 Okla. 310, 168 P. 53, L. R. A. 1918B, 144.

In Griffin et al. v. Thomas, 86 Okla. 70, 206 P. 604, it was said:

“In discussing constitutional provisions, such as section 57, art. 5, supra, in 25 R. C. L. § 88, p. 842, it is said:
“ ‘The term “subject,” as used in these provisions, is to be given a broad and extended meaning, so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to the general subject of the act, it is not open to the objection of plurality. To constitute duplicity of subject, an act must embrace two or more dissimilar and discordant subjects, that by no fair intendment can be considered as having any legitimate connection with or relation to each other. This constitutional provision does not contain any limitation on the comprehensiveness of the subject, which may be as comprehensive as the Legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject, and not several; it may include innumerable minor subjects, provided that all the minor subjects, when combined, form only one general subject or topic.’
“And in section 90, p. 844, Id., it is said:
“‘The “subject” of an act is.the matter or thing forming the groundwork of the act which may include many parts or things, so long as they are all germane to it and are such that if traced back they will lead the mind to the subject as the generic head. There can be no surer test of compliance with the constitutional requirements of singleness of subject than that none of the provisions of an act can be read as relating or germane to any other subject than the one named in the title. An act is not unconstitutional because more than one subject is contained therein where the objects are germane to the main subject, or they relate directly or indirectly to the main subject, and have a mutual connection with and are not foreign to the subject of such an act or when the provisions of the act are of the same nature and come legitimately under one subject.’ ”

See, also 15 R. C. L. 273 § 27; Woolen & Thornton, The Law of Intoxicating Liquors, § 187.

Here the general subject submitted by the Governor for legislative action was:

“The manufacture, possession, or transportation of any beer, wine, distilled spirits or liquor in violation of the prohibitory law.”

The act (chapter 42, Session Laws 1923-24, p. 43) is entitled:

“An act relating to stills, distilleries, mash, wort, wash fit for distillation or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquor, fixing the penalty for the violation thereof, and declaring an emergency.”

The act itself is cognate to the general subject of the “manufacture of beer, wine and distilled spirits or liquor ir violation of the prohibitory law.” The possession of a still is a constituent part of manufacturing liquor. The legislation, therefore, is comprehended in the subject of “manufacturing distilled spirits or liquor” as submitted by the Governor under general subject No. 12.

The further contention is made that the act is void as making an innocent act, i. e., the mere possession of property, a crime. Such a contention is wholly untenable. There is no reason why having the possession of an instrument of crime may not itself be a crime. No one has ever questioned the authority of the general government to make the possession of moulds which might ■be used in counterfeiting a crime. Since the manufacture of intoxicating liquor is a crime, we perceive no reason why the possession of a still such as is used in the manufacture of intoxicating liquor may not be made an offense. There is no parallel between the principle announced in the case of Proctor v. State, 15 Okla. Cr. 338, 176 P. 771, and the principle involved in this case.

Lastly, it is contended that the court abused its discretion in not permitting the defendant to withdraw his plea of guilty and to enter a plea of not guilty. Section 2621, Comp. Stat. 1921, provides that the court, before judgment, may permit a plea of guilty to be withdrawn and a plea of not guilty to be substituted. It has been the uniform holding of this court that, where a plea of guilty is entered through inadvertence, ignorance, or without deliberation, the court should be liberal in permitting it to be withdrawn and a plea of not guilty substituted. A defendant has the right to plead guilty, and such plea authorizes a judgment of conviction and imposition of punishment as prescribed by law. Where the court fails to fully advise a defendant of his rights and the consequences of his plea, and through ignorance, inadvertence, or influence a plea of guilty is entered, and application to withdraw is made before judgment, the court should permit it to be withdrawn. Here, however, the court advised defendant of his right to have counsel, and to 24 hours in which to plead, and of the penalty for violation of the prohibitory law and the consequences of his plea, and, after being so advised, defendant entered his plea of guilty. It was not an abuse of discretion for the court to deny his application to withdraw such plea and to enter a plea of not guilty. Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298; Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Mullen v. State, 28 Okla. Cr. 218, 230 P. 285; Hart v. State, 29 Okla. Cr. 414, 233 P. 1095; Tipton v. State, 30 Okla. Cr. 56, 235 P. 259.

Finding no error that would warrant a reversal, the ease is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    LEE DEAN v. STATE.
    No. A-5509.
    Opinion Filed Aug. 14, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 1118.)
    J. F. Thomas, for plaintiff in error.'
    The Attorney General, for the State.
   PER CURIAM.

Lee Dean was found guilty of unlawfully selling whisky to one Clarence Sessums, with his punishment fixed at a fine of $50 and 30 days’ confinement in the county jail. The plaintiff in error has filed no brief in support of his appeal. The record discloses that the information and the evidence supporting it were sufficient to sustain the conviction. The judgment of the trial court is therefore affirmed.


text:
    HERBERT JONES v. STATE.
    No. A-5470.
    Opinion Filed May 15, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 1119.)

      Rowe & Calvert, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted on an information charging that he did unlawfully transport eight gallons of whisky from a point in Pawnee county unknown to a point about a quarter of a mile north of Hallett, in said county, and in accordance with the verdict of the jury he was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment an appeal wias taken, by filing in this court on March 10, 1925, petition in error with case-made. No brief has been filed and the case was submitted on the record. We have examined the record and discover no prejudicial error. There is no question in our minds of the defendant’s guilt, and the judgment of the lower court is affirmed.