author: BAREFOOT, P. J. JONES, J.

text:
    J. M. SPARKS v. STATE.
    No. A-9828.
    July 9, 1941.
    (115 P. 2d 277.)

      Mac Q. Williamson, Atty. Gen., Fred Hansen, Asst. Atty. Gen., and D. P. Hervey, Co. Atty., of Stillwater, for the State.
    Walter Mathews, of Cushing, for defendant.
   BAREFOOT, P. J.

Defendant, J. M. Sparks, was charged in the county court of Payne county with the crime of violating the “barber law,” was tried, convicted and assessed a fine of $25, and has appealed by transcript to this court.

The act under which defendant was charged was chapter 24, art. 2, of the 1937 Session Laws, 59 Okla. St. Ann. § 91 et seq. The specific charge was that defendant violated said law by cutting hair as a licensed barber at a price less- than that fixed by the State Board of Barber Examiners. This act has been held constitutional by this court and the Supreme Court in the following cases : Ex parte Herrin, 67 Okla. Cr. 104, 98 P. 2d 21; Herrin et al. v. Arnold, District Judge, 183 Okla. 392, 82 P. 2d 977, 119 A.L.R. 1471; Vandervort et al. v. Keen, District Judge, 184 Okla. 121, 85 P.2d 405; Tennyson v. State, 70 Okla. Cr. 415, 106 P. 2d 1114; State of Oklahoma ex rel. State Board of Barber Examiners v. J. K. Gill, 189 Okla. 458, 117 P. 2d 538. It is unnecessary to- quote from, these, cases. They discuss and decide a number of the questions raised by this appeal.

In recognizing the rule announced in those cases it is contended that other errors were committed by the ■court in the trial of this case which necessitate a reversal thereof. The first alleged error is that the trial court erred in refusing to sustain the demurrer to the information. It is unnecessary to quote the information in full. It is contended in defendant’s brief that the information did not allege that said minimum price order “was duly given or made as provided by section 2894, O. S. 1931, 22 Okla. St. Ann., § 412, or other facts disclosing; jurisdiction of the Board to make it.” It is contended that the information is defective because “it does not allege what minimum price was- fixed by the State Board of Barber Examiners for hair cuts. * *

The information states: “* * * 'by charging one W'. E. Martin the sum of twenty-five (25c) for a hair cut, a sum fifteen cents (15c) less than the minimum price approved by the said Barber Board * *

It does not occur to us that this is pleading a conclusion. It is a mere matter of calculation.

It is next contended that a certified copy of the order of the barber board was not served upon the defendant, but there was only served upon him a certified copy of the minimum price schedule. This question has been decided adversely to' the contention of defendant in the case of Tennyson v. State, supra. The further contention that the information did not allege that defendant “cut anybody’s hair” is without merit. It clearly alleges that he violated said order by charging one W. É. Martin the sum of 25 cents for a haircut.

The further contention that the information did not allege that said charge of 25 cents for a haircut was made in the city of Cushing is untenable. The information alleges that defendant was operating a barber shop in Cush-ing. That a minimum price order had been fixed for the city of Cushing, and that he had violated said order by charging W. E. Martin only 25 cents for a haircut. These allegations clearly and sufficiently apprised defendant of the charge he was to meet. Warren v. State, 24 Okla. Cr. 6, 215 P. 635.

It is next contended that the information did not allege that said minimum price order “was duly given or made as provided by section 2894, O. S. 1931, 22 Okla. St. Ann. § 412, or other facts disclosing jurisdiction of the board to make it.” This section is as follows :

“In pleading a judgment or other determination of, or proceeding before a court or officer of special jurisdiction it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. The facts constituting jurisdiction, however, must be established on the trial.”

We do not think that this section of the statute applies to the issue here involved for the reason that the order of the board which establishes a minimum price for barber work is not a judgment or determination as referred to in the above section. See Ex parte Herrin, supra; Cowan v. Maxwell, 27 Okla. 87, 111 P. 388. The judgments or determinations referred toi in the above section have reference to judgments of courts or to officers having special jurisdiction in designated cases or proceedings and not to the establishment of subordinate rules within prescribed limits and a determination of facts to which a legislative policy is to apply, such as the minimum price order here involved.

It is next contended that the court erred in not giving defendant’s requested instruction No. 4, which was as follows:

“You are instructed that if the order of the State Board of Barber Examiners fixes an unreasonable and arbitrary minimum price, and a price beyond which barbers may conduct a clean and sanitary barber shop, or if barbers in Cushing may conduct a clean and sanitary shop by charging prices less than that fixed by said Board, then you should acquit the defendant.”

It is the contention of defendant that this instruction was justified under the decision of Herrin et al. v. Arnold, District Judge, supra, by the Supreme Court wherein it was stated [183 Okla. 392, 82 P. 2d 982, 119 A. L. R. 1471] :

“The board does not have arbitrary power; the courts can still inquire into the question of whether its decisions are unreasonable, extravagant or arbitrary.”

That part of the opinion immediately following the above quotation states:

“If here the board has, without more, merely proved an agreement it has not acted according to law. We do not, however, so understand the pleadings. Presumably it has taken into consideration all conditions affecting the barber profession in its relation to the public health and safety, and has taken into consideration the necessary costs in the particular city or town affected in maintaining a barber shop in a clean, healthful and sanitary condition, and has, after such investigation, made its official order fixing the minimum price for all work usually performed in a barber shop.”

It will thus be noted that, under the opinion of the Supreme Court in the above case, the presumption favors the validity of the order made by the board. The burden was therefore upon defendant to- show that it was illegal.

As above stated, the appeal in this case was by transcript. No part of the evidence appears in the record. The question as to whether or not the instruction requested by defendant should have been given by the trial court involves a consideration of the evidence in this case which does not appear in the record. Smiser v. State, 19 Okla. Cr. 86, 198 P. 110. See, also, Ex parte Herrin, supra.

It is next contended that the court erred in refusing to give defendant’s requested instruction No. 2, which was as follows:

“You are instructed that if you find that a true copy of the order of the State Board of Barber Examiners was not served or given to the defendant, then you should acquit him.”

This question has been previously discussed. The ¡general instructions of the trial court fully outlined the provisions of the statute with reference to> notice, requiring the state to prove that such notice had been given.

It is also contended that the court erred in giving instruction No. 6, which was as follows:

“You are further instructed that if after a complete and full examination of the evidence, you believe beyond a reasonable doubt that the State Barber Board did on or about the 19th day of June, 1939, fix and approve a schedule for barbers operating in the city of Cushing, youi are instructed that where the same is filed in the officel of the Secretary of State, that the defendant is charged with the notice thereof.”

This instruction involves the question of the evidence produced in the case and which is not before the court. It was also fully discussed and decided by this court in the case of Tennyson v. State, supra.

It is finally contended by defendant that this law is unconstitutional because it is in contravention of sections 6 and 32 of the Bill of Eights: of the Constitution of the State of Oklahoma, Okla. St. Ann., which are as follows:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to' person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”
“Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this, state.”

It is contended that the unconstitutionally of this law by reason of the above sections of the Bill of Eights has not been passed upon by this court or the Supreme Court in the decisions heretofore cited. While this is true, the argument presented is the same as presented when it was contended that the law was unconstitutional by reason of the due process clause and the equal protection clauses and the other provisions of the Constitution cited. The very fact that these sections were not cited in those cases is strong argument that this law is not in contravention of their terms. It is unnecessary to' here review-tile' previous decisions of this court and of the Supreme Court, upon this question. Counsel has not cited in his brief any case where similar sections in the Constitutions of other states have been considered in passing on the many cases wherein the validity of a similar law was involved. It is apparent that the lawyers in those cases have never seriously considered that these constitutional 'provisions had any bearing upon the constitutionality of statutes involving the validity of minimum or maximum wage or price orders promulgated by statutory administrative boards under authority thereof. The only case to which defendant refers in his brief is the case of Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, decided by this court in an elaborate opinion by Judge Doyle. We have carefully read this opinion and fully agree with the principles announced therein, but do not find anything that would cause one to believe that the statute here under consideration is unconstitutional by reason of section 6 of the Bill of Rights of the Constitution of this state.

The contention that the members of the Board of Barber Examiners, by reason of the fact that they establish the rules and orders fixing the minimum price for barber work done in certain localities, have a pecuniary benefit as a result of these orders because they are barbers themselves, is untenable. Moreover, there is nothing in the record to show that any of the members of the board have practiced their trade in the city of Cushing or in Payne county. The defendant was not tried by the members of this board, but by an unbiased and unprejudiced judge and jury in his home county. It may just as well be argued that the members of the bar of this state could not act as bar examiners for the examination of applicants to the bar because they might be interested from a pecuniary standpoint in not seeing” other persons admitted to the bar, or that a physician could not be placed upon a board regulating the practice of medicine because he had a pecuniary interest therein.

We see nothing in section 32 of the Bill of Rights of the Constitution of this state which causes us to believe that the statute here under consideration is in violation of its terms. The case of Sheldon v. Grand River Dam Authority, 182 Okla. 24, 76 P. 2d 355, which is cited by defendant, does not in our opinion establish the fact that this act creates a monopoly in violation of said section 32.

We close this opinion with a short quotation from the case of Ex parte Herrin, supra [67 Okla. Cr. 104, 93 P. 2d 39], which fully covers our views with reference to the barber law here under consideration:

“We do not deem it necessary to cite the many decisions of the state, federal, and Supreme Courts, which uphold the principles above set forth. They are cited in the leading cases and notes to which reference is made, if an examination of them is desired. We are firmly of the opinion, that if the Legislature of this state has the right to> regulate the barber industry of this State in the interest of public health and sanitation, and to establish standards of fitness to engage in the profession under the exercise of the police power, then it has the power, through the barber’s board, as organized under the law, as a fact finding board, to fix and determine thel minimum prices which may be charged by those engaged in the barber business, in designated areas, so that the public may be served by barbers who are not only skilled, but free from contagious disease, and that while so conducting their business in compliance with the laws of this state, they may at the same time be afforded a fair return on their investment and their labor.”

For the reasons above stated the judgment and sentence of the county court of Payne county is affirmed.

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

JONES, J.

(concurring). I concur in the. conclusion reached by Judge BABEFOOT; however, if the appeal herein had been by case-made and there was evidence in the record supporting the contention of the defendant that the order of the Board of Barber Examiners was arbitrary and unreasonable and made without any regard to what minimum price was reasonably necessary in order for the barbers in Cushing to conduct a clean and sanitary barbershop, it is my opinion that the case would have had to have been reversed for failure of the trial court to give proper instructions submitting this issue to the jury; but under the state of the record, and in the light of the prior decisions of this court, the opinion affirming’ the judgment of the lower court is correct.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Ex parte ORA WOOLDRIDGE.
    No. A-10060.
    July 9, 1941.
    (115 P. 2d 284.)

      W. N. Redwine and Hulsey & Hulsey, all of McAles-ter, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding" in habeas corpus, wherein the petitioner, Ora Wooldridge, seeks his release from imprisonment in the State Penitentiary at McAlester:.

The verified petition filed herein alleges, in substance, that the petitioner was taken before a justice of the peace in Texas county on August 27, 1938, where an information had been filed against him, charging said petitioner with attempted rape of Olene Wooldridge, a female person of the age of 12 years; that the said justice of the peace did not advise petitioner that he was entitled to a lawyer, and that said petitioner did not have a lawyer to represent him before said justice of the peace at said preliminary hearing; however, the justice of the peace at said hearing held said petitioner to answer said charge in the district court of Texas county. That on the same date the petitioner was arraigned in the district court of Texas county on said charge of attempted rape, and entered his plea of guilty to said charge and was sentenced to a term of 30 years in the State Penitentiary, that saidl petitioner did not have a lawyer to represent him at the time he pleaded guilty or at any time. That he was ignorant, and was not advised that he was entitled to have a lawyer appointed to represent him, and did not have served upon him a copy of the information and a list of the witnesses who' were toi appear against him. A copy of the criminal complaint filed before the justice of the peace, of the information filed in the district court, and of the judgment and sentence pronounced upon the plea of guilty, are attached to the petition and made a part thereof.

The Honorable Jess F. Dunn, warden of the State Penitentiary, has filed his response, in which he states that he holds the said petitioner in custody pursuant to the judgment and sentence pronounced by the district court of Texas county, dated August 27, 1938; said prisoner having been received at the penitentiary September 6, 1938, to' serve a, term of 30' years. The response further alleges that the said Ora Wooldridge was throughout all proceedings advised of the charge against him and all his rights in connection therewith, and alleges that the statements to the contrary and petition filed herein are not true and have been made with little regard to the true facts.

When this case Avas set for hearing, no evidence was introduced on behalf of the petitioner, but counsel for petitioner announced to the court that they were relying solely upon the certified records attached to their petition to show a denial of due process of la\v in connection with the sentencing of said petitioner.

The Attorney General, on behalf of respondent, introduced in evidence the affidavit of L. E. Tryon, county attorney of Texas county at the time of the sentencing! of said petitioner; also, the affidavit of O. A. Sullivan, sheriff of Texas county; also, the affidavit of the Honorable E. Hiner Dale, district judge of said county, who pronounced the sentence upon the petitioner; and a certified copy of the transcript of the proceedings before J. E. Daily, justice of the peace; and a. certified copy of the minutes of the district court showing the proceedings at the time the defendant entered his plea of guilty and was sentenced.

From this evidence it appears that the petitioner had been arrested on August 26, 1938, by the sheriff of Texas county upon complaint of two daughters of the petitioner that their father had committed rape against their persons; that the county attorney was out of the city at the time the petitioner was taken to jail; that upon his return, at the request of the petitioner, petitioner was taken to the county attorney’s office where the county attorney discussed the seriousness of the offense which the defendant was alleged to have committed.

The county attorney told the petitioner at that time that the county would furnish him a lawyer if the petitioner wanted them to do- so, but that the petitioner said he was guilty and was ready to plead guilty. That the county attorney ordered the sheriff to take him back to jail and let him think the matter over further before) taking him before the justice of the peace.

That early the next morning the petitioner sent for the sheriff and told him that he had made peace with his Lord and he wanted to go ahead and plead guilty and take his medicine.

That the petitioner was then, later that morning, taken before the justice of the peace where the complaint was read at length to the petitioner, and he was then informed by the justice of the peace of his right to take 24 hours to plead, and of his right to be represented by an attorney, but that the petitioner waived these rights and waived a preliminary hearing, and was bound over to the district court (in addition to the testimony, thel transcript of the record from the justice of the peace shows that these rights were waived by the petitioner).

That later, that same day, the petitioner was taken before the district judge, and the information was read to’ petitioner in open court by the county attorney; and. the district judge informed him that he could take time to plead, and that he was entitled to be represented by an attorney, and that the county would hire one for him without expense to the petitioner if petitioner could not hire one. That the petitioner stated that he did not want an attorney, but wanted to' plead guilty and get it over. That the district court then pronounced sentence upon the petitioner. The petitioner remained in jail nine days; where his mother and other relatives visited with him before he was taken to’ the penitentiary.

The minutes of the district court proceedings show that the petitioner was informed of his rights which were waived by him; the minutes specifically reiterate that he waived his right to be represented by counsel and the time to plead, and entered his plea of guilty.

It is apparently the contention of petitioner that since the record shows the petitioner waived his preliminary hearing, was bound over to the district court, and entered his plea of guilty in the district court without the aid of counsel, all on the same day, that the same on its face showed a want of due process of law, citing Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, 19.

It was held in Ex parte Barnett, supra, that:

“Under Bill of Rights; sec. 2Ó, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.”

However, in the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 189, 141, and in Ex parte Bradley, 72 Okla. Cr. 107, 113 P. 2d 611, it was held that:

“A person prosecuted for a crime may waive the rights guaranteed to him by bill of rights, relating to trial by jury, right to be heard by counsel, etc. * * *
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend, in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

In the above cases the minutes of the district court proceedings were silent as to whether the petitioner was advised as to his right to be represented by counsel, and time to plead, and his right to be tried by a jury; but in the instant case, the minutes of the district court show the petitioner was fully advised as to his rights, and that he waived the same. Petitioner offers no evidence to rebut the. recitals in these minutes. On the contrary, the affidavits of the trial judge, the county attorney, and the sheriff show the petitioner was fully advised of his rights; but that being guilty of the offense Avith which he stood charged, he desired to plead guilty, and that he waived time Avithin which to plead to the information, his right to a trial by a jury, waived his right to be represented by counsel, and entered his plea of guilty, the petitioner fully understanding the nature of the charge against him and the consequences, of his plea.

It is our opinion, after a consideration of this record, that the contentions of the petitioner are without merit, and that his petition filed herein should be denied.

It is S0‘ ordered.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    CHARLIE ALDRIDGE v. STATE.
    No. A-9838.
    July 9, 1941.
    (115 P. 2d 275.)
    Marion B. Wells, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Charlie Aldridge, was by information filed in the county court of Seminole county charged with the offense of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50 from which judgment and sentence he appeals to this court.

Defendant assigns as error the action of the court in overruling his motion to suppress the evidence.

The search warrant served upon the defendant is, in part, as follows:

“ * * * intoxicating liquors * * * are kept for the purpose of selling * * * by the following named persons, in Seminole county, Oklahoma, namely: Chas. Aldridge and upon the following described premises, located as follows: Claremore Rooms East 2nd St. City of Wewoka in Seminole County, Oklahoma.
“Now, therefore, You are commanded to forthwith search the person and effects of the said Chas. Aldridge and the place and premises above described herein, at any time of the day or night for said intoxicating liquors. * *

Defendant contends that the search and seizure were illegal for the reason that the warrant does not direct ■the officers to- search that portion of the premises occupied by the defendant, Charlie Aldridge, but commands the officers to search “the said Chas. Aldridge and the place and premises above described herein;” that since the premises described in the warrant were occupied by several separate families, it was incumbent upon the officers to obtain a warrant specifically describing that portion of said premises used by this defendant as his home; that under the warrant so issued the officers were trespassers when they obtained the evidence.

On the motion to suppress the evidence, defendant testified that the Claremore Rooms was a four family apartment house, containing two apartments downstairs and two apartments upstairs. Defendant was married and living with his wife in the lower apartment on the west side of the house. The lower east apartment and one of the upper apartments were occupied at the time of the search and seizure. Defendant’s wife had control of the renting of the apartments. Officers served the warrant on defendant and searched only his apartment, where they seized six pints of whisky.

The search warrant named defendant. It authorized the search of defendant’s effects and the entire building described. Defendant did not own the building, but occupied and had control of only one apartment in the house. The affidavit for the search warrant is not before the court, so it must be presumed that probable cause was shown for a search of the premises occupied by defendant. The only question for this court to determine is whether or not the search warrant was void; because of its broad scope.

In the case of United States v. Mitchell, D. C., 274 F. 128, 131, officers procured a search warrant naming defendant and authorizing the search of the entire premises at a given address. This was an apartment house in which defendant occupied only one apartment. The court held that the warrant was too. general, and styledl it as all-devouring, when issued against an apartment house where many families lived, stating that “this of itself is sufficient to condemn it,”

In the case of United States v. Innelli, D. C., 286 P. 731, 732, which has been cited with approval by this court many times (Myer v. State, 34 Okla. Cr. 421, 246 P. 1105; Mason v. State, 60 Okla. Cr. 392, 64 P. 2d 1238; Linthicum v. State, 66 Okla. Cr. 327, 92 P. 2d 381), the court said, in speaking of the place to be searched, that:

“It is described by street and number, and the name of the person to whom the premises then or formerly belonged. Had the whole premises included within the description belonged, as was. doubtle'ss erroneously taken for granted, to the person whose place was meant to. be searched, such a description as that given might meet all practical needs. * * * It must not be forgotten- that a warrant is a command which must be obeyed. * * * Such a command should not direct a search which would be wholly unjustified. If the place described by street and' number is used by a number of persons for different purposes, then it is not a place; but there are several places included in the one description. It is then a general, but not a ‘particular,’ description.”

Obviously, the warrant Avas intended to operate, and did operate, as a blanket search warrant covering the private place of abode of several people, and was therefore void. Mason v. State, supra.

For the reasons stated above, this case is reversed and remanded to the trial court with instructions to dismiss.

BAREFOOT, p. J., concurs. DOYLE, J., absent.


author: PER CURIAM.

text:
    Ex parte GLEN WILKERSON.
    No. A-10059.
    July 16, 1941.
    (115 P. 2d 923.)
    W. N. Redwine and Hulsey & Hulsey, all of McAles-ter, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original application for writ of habeas corpus, in which the petitioner alleges that he is unlawfully imprisoned at the State Penitentiary under a void judgment and sentence pronounced against him by the district court of Comanche county, Okla., on April 30, 1932.

It is agreed between counsel for the petitioner and respondent that both the law and the facts in this proceeding are identical with the facts and law involved in the ease of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139.

This is a companion case to the Meadows Case, as Clyde Meadows and the petitioner, Glen Wilkerson, were jointly charged in said case, were arrested at the same time, and all proceedings were had against them jointly.

It appears from the record that the petitioner, Glen Wilkerson, was three years younger than the petitioner, Clyde Meadows, when the offense was committed.

This case is, therefore, governed by the opinion rendered by this court in Ex parte Meadows, supra.

It is, therefore, ordered that the judgment and sentence pronounced against the defendant in cause No. 2218 in the district court of Comanche county and all other proceedings in said court in said cause subsequent to the filing of the information therein be and the same are hereby vacated and set aside.

It is further ordered that the writ of habeas corpus be issued, and the warden of the State Penitentiary at McAlester, Okla., be and is hereby commanded forthwith to deliver into the custody of the sheriff of Comanche county, Okla., the petitioner, Glen Wilkerson.

It is further ordered that the sheriff of Comanche county, Okla., hold the said Glen Wilkerson pending the disposition of the charge filed against him in cause No. 2218 in the district court of Comanche county, or until he is otherwise discharged, as provided by law in such cases.


text:
    DEE HARDY v. STATE.
    No. A-9839.
    July 16, 1941.
    (115 P. 2d 767.)
    Roy Lo>we, of Wewoka, and Ernest Richards, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Dee Hardy, was by information filed in the county court of Seminole county charged with the offense of the unlawful sale of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and to pay a fine of $50, from which judgment and sentence the defendant appeals! to this court.

The only assignment of error seriously urged by the defendant for reversal of this case is that the evidence is insufficient to support the judgment and sentence.

The state offered the testimony of Officers Lofton and Dove. On October 6, 1939, Lofton went into the kitchen of the El Centro Cafe in Seminole and asked defendant for a pint of whisky. Defendant stated to him that he would have to' go outside to the car in order to get the whisky. He was gone about 15 or 20 minutes; then returned with the whisky, which Lofton paid for and received.

Officer Dove, who had remained on the outside, saw defendant go out to the back of the cafe, search in the turtleback of a car, and get something. Defendant stated to the officers that he had stolen the whisky from the car.

Defendant, testifying in his own behalf, denied making the sale.

Counsel for defendant argue that the only evidence offered by the state is the uncorroborated testimony of accomplices, and for that reason is insufficient.

In the case of Hiatt v. State, 67 Okla. Cr. 372, 94 P. 2d 262, it is stated:

“The sale of intoxicating liquor to an officer is as unlawful as is the sale of intoxicating, liquor to any individual,” citing -Medlock v. State, 66 Okla. Cr. 27, 89 P. 2d 377.

This court- held in Leigh v. State, 34 Okla. Cr. 338, 246 P. 667:

“The purchaser of intoxicating liquor at an illegal sale is not an accomplice of -the seller, and his testimony is not required to be corroborated in order to- sustain a conviction for the sale of such liquor.”

See, also, Lemmons v. State, 48 Okla. Cr. 302, 291 P. 159.

The contention of the defendant is without merit, and this cause is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    JACK DEMP SCOTT v. STATE.
    No. A-9824.
    July 16, 1941.
    (115 P. 2d 763.)
    Jerome Sullivan, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty,. Gen., for defendant in error.
   JONES, J.

The defendant, Jack Demp Scott, was charged by information in the district court of Stephens county with the crime of robbery with firearms, second offense; was tried, convicted, and sentenced to serve a term of 15 years in the State Penitentiary, from which judgment and sentence he appeals to this court.

Counsel for defendant argues that this case should be reversed for the following reasons:

(1) The evidence is insufficient to support the conviction.

(2) Material prejudice to defendant was caused by misconduct of counsel for state.

(3) The court erred in refusing to grant a continuance.

On the night of July 10, 1939, E. L. Williams and his wife were robbed with firearms in their home by Calvin Lee Camp and Benny Peoples; who pleaded guilty to the crime, and a third person alleged by the state to be the defendant in this case.

Calvin Lee Camp, who was serving a term in the penitentiary for participation in the offense with which defendant is here charged, was the principal witness for the state. His testimony, stated briefly, is that on the afternoon of July 10, 1939, he was at the home of Margaret Nottingham when defendant and Benny Peoples drove up in defendant’s car. The car, a two-door sedan, was “a 1931 Model A Ford, not blue nor black, á soft of faded color;” with yellow wheels. In the automobile were a sawed-off shotgun and a pistol. Leonard Nottingham was present and asked about the shotgun. Peoples put it under the front seat. Camp started back to Lawton with Peoples and defendant. On the way they discussed the proposed robbery. In Lawton the three of them went to a barber shop where witness had his shoes shined. He stated that he had no conversation with the porter. They went from Lawton to Marlow where they bought some gasoline. Camp and Benny Peoples got out of the car and had a conversation with the filling station attendant about changing a $10 bill and a $20 bill. Defendant remained in the car.

They went then to the home of the prosecuting witness, Williams. Defendant knocked on the door. A light was turned on above the door. Defendant stated he wanted, to buy some whisky, and Williams brought it to the door. When the whisky was handed to defendant, the two accomplices covered Williams with the pistol and a shotgun. Peoples had the shotgun and Camp, the pistol. Defendant did not have a gun. They made Williams and his wife lie on a bed with their hands up. Defendant searched the house. He found $30 in money, an old type shotgun which was described at length, a flashlight, and in taking Williams’ watch from his pocket he jerked off the chain ring. They also took 57 pints of whisky. Before leaving, the three men broke the telephone connection, put Williams’ car out of commission, and locked prosecuting witness and his wife in a clothes closet.

When the three reached Lawton, defendant brought the money out of his pocket and divided it. They hid the whisky on Cache creek that night. The next day they went back in defendant’s car, but were unable to find the whisky. On the second day after the robbery, they went to certain pawnships in Lawton in an effort to dispose of the things they had taken from the Williams home. Defendant had the watch. They tried to sell it to Camp’s stepfather. Defendant said that it had been pawned to him for $2.50.

Camp’s stepfather had a 1931 Ford, a two-door sedan, black with red wheels. Witness stated that the only time he had driven the car was the day he married Margaret Nottingham. Witness further stated that he had never been to El Reno in his life.

E. L. Williams, the prosecuting witness, and his wife testified substantially the same as Camp as to the facts of the actual robbery. Williams had known defendant when he was a boy, but had not seen him for several years. He could not identify him positively as being- the third member of the band that robbed him. He stated that the man had a dark complexion and red hair like the defendant, but seemed to weigh a little more than defendant weighed at the time of the trial.

Mrs. Williams was unable to identify defendant. She knew that the third man had dark hair and was slow of speech. Both Mr. and Mrs. Williams explained their inability to identify the third party who' searched the house, because the other two men had guns on them and their attention was directed at them while the third party took a flashlight and used it to make a search of the front room.

Leonard Nottingham stated that on July 10, 1939, about 4:30 in the afternoon, he saw Peoples, Camp, and the defendant at his father’s house. They were working on the brakes of a Model A Ford, that was bluish-green in color. He saw a sawed-off shotgun in the car. Thei three boys drove off towards Lawton. The car they were driving was not the car of W. L. Camp, stepfather of Calvin Lee Camp.

Glenn Rollins testified that on July 10, 1939, around midnight, Peoples and Camp were driven by a third person to' the filling station Avhere he worked. They bought some gasoline and had a conversation about changing a $10 bill and a $20 bill. Witness could not identify the man who was driving the car, which was a Model A Ford sedan of a dark, faded color.

W. L„ Camp testified that on the 11th or 12th of July, 1939, his stepson, Calvin, inquired of him as to whether he wanted to buy a watch, and he said he would if it was cheap. Calvin took a. watch from defendant and showed it to him; then returned it to' defendant. This: watch was a Waltham with an “S” on the back, the ring) was missing, and undoubtedly belonged to the prosecuting witness. This witness further testified that his stepson had never driven his car.

Buby Hise, who worked at Pennington’s Pawn Shop in Lawton, stated that on July 11th, Peoples, Camp and defendant came into the store and wanted to trade an old shotgun, described as being the one stolen from Williams, and to sell the watch. Peoples had both of the articles, but they all three took part in the attempted trade.

Alma Yates testified, also, that they were in the store on that date.

Defendant offered an alibi, supported by the testimony of accomplice, Benny Peoples. The jury evidently did not believe the alibi.

It is necessary for this court to' decide whether or not there was testimony corroborating accomplice, Camp, which tended to connect defendant with the commission of the crime.

No witness for the state offered direct corroboration of Camp that the defendant actually took part in the robbery. Nottingham stated that defendant started with the other two toward Lawton on the late afternoon of the day of the robbery in a car answering the description of the car which defendant drove. Bqllins corroborates Camp as to the description of the car they were in at Marlow before the robbery, bnt could not identify defendant. The prosecuting Avitness and his wife corroborate Camp on every point concerning the robbery, except as to the identity of defendant. Ruby Hise, Alma Yates, and W, L. Camp positively identified defendant in connection with the possession of the Williams property the next day after the robbery.

In Plemons v. State, 53 Okla. Cr. 263, 10 P. 2d 285, 287, this court said:

“The law prescribes no standard for the strength of corroborating evidence, and there is a failure to corroborate only if there is no evidence legitimately having that effect.”

See, also, Hendrix v. State, 22 Okla. Cr. 230, 210 P. 734; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

It is stated in Davenport v. State, 20 Okla. Cr. 253, 202 P. 18, 27:

“The rule, simply stated, is that the testimony of an accomplice must be corroborated by other evidence tending to connect defendant with the commission of the offense; that it is not necessary that such testimony, standing alone, should be sufficient to convict defendant; and that incriminating circumstances shown by the evidence are sufficient, if they tend to connect the defendant with the commission of the offense.”

In the case of Henson v. State, 69 Okla. Cr. 273, 101 P. 2d 1060, this court held:

“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or circumstancesi thereof,” citing: Bliss v. State, 47 Okla. Cr. 225, 287 P. 778; Moody v. State, 13 Okla. Cr. 327, 164 P, 676; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Hollingshead v. State, 21 Okla. Cr. 306, 207 P. 104.

In Henson v. State, supra, this court stated that where the testimony of three witnesses connect defendant with accomplices as being together in defendant’s automobile the night the theft was committed, and another witness’ testimony directly connected defendant with possession of some of the property which had just been stolen, evidence corroborating testimony of accomplices was sufficient to sustain conviction of the offense. The evidence herein corroborating the testimony of the accomplice, Camp, is stronger than in the Henson case.

It will be seen that there is independent evidence tending to connect defendant with the commission of the crime charged, and the weight and sufficiency of this evidence is for the jury, and, where the jury has returned its verdict, this court will take the strongest view of the corroborating testimony that the evidence warrants. Haas v. State, 37 Okla. Cr. 335, 257 P. 1115.

Counsel for defendant contends that defendant was materially and substantially prejudiced by conduct of the state in the examination of defendant’s witnesses. Eight instances of the alleged misconduct are set out in defendant’s brief. Defendant made objection to questions asked in only three of these instances and was sustained by the court in two of them.

In Henry v. State, 6 Okla. Cr. 430, 119 P. 278, it is stated:

“Necessarily the object of cross-examination is to break or weaken the force of the testimony given by the witness on his examination. From this it follows that any matter which would have a tendency to lessen the credibility of a witness is a proper matter of inquiry on cross-examination. The general rule, therefore, is. that anything which tends to show bias or prejudice on the part of the witness or anything which shows his friendship or enmity toward either of the parties is commonly a proper subject of inquiry; so, also, is anything which tends to show that in the circumstances, in which he is placed he ha,s a strong temptation to swear falsely.”

The state Avas certainly not easy with defendant’s Avitnesses; however, Benny Peoples was a particularly difficult witness and refused to answer many of the state’s questions. The members of defendant’s family who testified in support of his alibi were vigorously cross-examined by counsel for the state. There Avas justification for this in the state’s attempt to show how much credibility should be given their testimony.

We do not think there was any error here, although such questions and answers were admitted Avithout objection, as the county • attorney had the right to ask such reasonable questions as might show an intimate relationship between Avitness and defendant or to show the occupation of the witness.

Defendant further alleges that the trial court committed reversible error in refusing his motion for a continuance of the trial, in Avhich motion it Avas stated that defendant was suffering from an injury and was unable to attend court; that a subpoena had been issued for one Bill Wilburn in Pontotoc county and that no- return had been made, and that defendant expected to be able to ■produce witness at the next term of court; that a subpoena had been issued for one Jimmy Cunningham in Comanche county and a return made showing him not found, and that defendant expected to be able to produce him at the next term of court. The expected testimony of these two witnesses was set out in the affidavit attached to the motion.

Defendant offered a sworn statement by Dr. G. G. Downing that defendant was ill from a. fall and would not be able to attend court in less than two weeks. The court refused a continuance on this ground for the reason that. Drs. Garrett and Barber examined defendant and found him suffering from no injuries whatever and were of the opinion that he was able to attend court.

In Morrison v. State, 35 Okla. Cr. 311, 250 P. 543, this court stated:

“An application for a continuance on account of sickness of a defendant is addressed to the sound discretion of the trial court, and the overruling of such application is not error, unless there is an abuse of such discretion.”

Counsel for defendant further urges that the court should have ordered the affidavit of the defendant concerning the expected testimony of the absent, nonresident witnesses to be admitted as true. This was not necessary. Owen v. State, 13 Okla. Cr. 195, 163 P, 548; Abby v. State, 72 Okla. Cr. 208, 214 P. 2d 499. However, we find that the court did order the affidavit of defendant as to the evidence expected to be proved by the absent witnesses to be admitted as true, so we find the court actually doing the very thing the defendant’s counsel urges herein he should have done. Furthermore, the motion of the defendant for a continuance does not show any probability of securing the attendance, of said witnesses at any future time to which the case might be continued.

In Hill v. State, 19 Okla. Cr. 406, 200 P. 253, 254, it is stated:

“There is no: abuse of discretion in overruling an application for a continuance on the ground of the absence of a material witness, where the affidavit presented in support of the application does not show any probability of securing the attendance of said witness at any future time to which the case might be continued.”

In the case of Howard v. State, 67 Okla. Cr. 445, 94 P. 2d 947, this court said:

“An application for continuance in a felony case is addressed to the sound discretion of the trial court, andi unless an abuse of such discretion clearly appears, this court will not reverse the judgment for refusal to grant a continuance.”

Neary v. State, 52 Okla. Cr. 7, 1 P. 2d 819; McManus v. State, 50 Okla. Cr. 354, 297 P. 830.

No abuse of discretion by the trial court is shown by the record.

Finding no error substantially prejudicing the rights of defendant, the case is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: BAREFOOT, P. J„

text:
    NATHANIEL SMITH v. STATE.
    No. A-9964.
    July 23, 1941.
    (115 P. 2d 925.)

      L. E. Roseboom, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for defendant in error.
   BAREFOOT, P. J„

The defendant, Nathaniel Smith, was charged with the crime of rape in the first degree in Garfield county, was tried, convicted and sentenced to serve a term of 25 years in the penitentiary, and hasf-appealed. The defendant, being unable to give bond pend-, ing appeal, is confined in the penitentiary, and for this reason this case has been advanced and is decided at this time.

Defendant was represented by counsel at the trial in the district court; different counsel appeared for defendant on appeal to this court and orally argued the same; but no brief has been filed either on behalf of the defendant or the state.

Under the rules, we have carefully examined the record, the information, the evidence, and the instructions given by the court to see if any fundamental errors were made in the trial of this case. The evidence reveals that defendant was charged by information in Garfield county 'with the crime of rape in the first degree upon “Mrs. C. F. Bryant by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing resistance upon the part of the said Mrs. O. F. Bryant and without her consent and against the will * * * ”

Prosecutrix was a colored woman, 66 years of age; and the defendant was a colored man, 25 years of age. She lived in the city of Enid, and her husband had died December 2, 1939, only a few Aveeks prior to' the charge herein. Defendant came to her home on the early morning of December 23,1939, about 5 o’clock a. m., and waked her up. She asked wlm he was, and he said, “It liked to killed me when I heard your husband was dead.” He claimed that her deceased husband was his uncle and that he was on his way to Oklahoma City to catch a train to Wichita, Kan., where he lived. After some conversation, she permitted him to enter the house, saying, “If you are Mr. Bryant’s cousin, come in and I will fix you some breakfast.” While she was fixing breakfast and/ started to get one of the “irons”, that defendant jumped up and said, “Don’t you get that iron.” And he pushed her back on the couch, and that he had something in his hand that was sharp. He held it close to her throat and told her if she said anything he would “put me where my husband was tonight;” and further stated “he would kill me if I said a word.” Defendant then proceeded to havd intercourse with the prosecutrix under these circumstances.

She testified that she was in fear of her life, and that defendant would kill her. He then forced her to go' out of the room. When she returned, she saw defendant taking a watch out of her pocketbook, and that she called his attention to his taking her Avatch, and that he denied having it and threw the chain on the table. That defendant then tied a handkerchief over his head and left the house. She afterwards missed a fountain pen which was lying on the table. He told her not to holler. Immediately after he had left, she notified her neighbor what had happened, and he called the police.

She gave the description of the man who had assaulted her. That same morning the officers brought the defendant to her home, and she identified him as the one Avho had assaulted her. The officers identified the defendant from the description that she gave. They had seen him during the night at a cafe, acting as though he were drunk. The prosecutrix also' identified the watch and the fountain pen as being the watch of her husband and the fountain pen which she had given him at Christmas. They were found secreted in the defendant’s premises at the time he was arrested.

Anthony Dunn, a witness for the state, testified that prosecutrix came to his home early in the morning of December 23, 1939, and told him what had happened, and he called the police, and they came out at once and made an investigation.

The officers testified to going to' her home, of securing' a description of the party who assaulted her, and of arresting defendant at his home the same morning. He was in bed at the time. He was sleeping with his pants on. He first told the officers that he had come home in a taxi, and then told them another party had brought him home. He went with the officers to the home of the prosecuting witness, and she immediately identified him. The defendant was taken to the police station and was searched, but nothing was found. But when they returned to the police car, they found his knife behind the cushion in the back seat of the car', where defendant had been sitting. He claimed that it had fallen out of his pocket. After defendant was arrested and in jail, his home was searched, and the watch and fountain pen, before described, were found. The watch was upon a rafter, between the shingles; and the fountain pen was behind a piece of tin. One was in one room and the other in a different room. Defendant afterwards told the officers that he had taken the pen and knife down there.

Defendant made a written statement in the presence of officers and the mayor, in which he gave full details of his assault of the prosecutrix and having intercourse with her by means of putting her in fear of her life. He also admitted in the statement getting the watch and fountain pen.

There was other corroborating evidence which it isi unnecessaiy to review.

Defendant took the witness stand in his own behalf. He claimed he was drunk on the night of December 22, 1989, and that he didn’t know whether he went to the home of the prosecutrix or not. That he signed the statement introduced in evidence, but did not know what it contained. He admitted he had heretofore received a sentence of one year in the penitentiary for adultery and six months in jail for assault. It is unnecessary to further state his testimony. The jury heard the witnesses and passed on the evidence. They were in a much better position to do so than is an appellate court.

Under the evidence of the state, the question of defendant’s guilt cannot be doubted. The instructions of the court properly stated the law. There were no exceptions to the same. The defendant was given every right to which he is entitled under the Constitution and laws of this state. There was no passion or prejudice.

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

JONES, J., concurs. DOYLE, J., absent.


text:
    ROBERT HURT v. STATE.
    No. A-9808.
    July 23, 1941.
    (115 P. 2d 919.)

      Wayne Wheeling, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis Morris, Co. Atty., and Phil Daugherty, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

Robert Hurt was charged in the court of common pleas of Oklahoma county with the crime of maintaining a public nuisance, was tried, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $100 and costs.

From the judgment rendered against him, an appeal was perfected by filing in this court on January 27, 1940, a petition in error with case-made attached.

Subsequently, the Attorney General filed a motion to dismiss the appeal for the reason that shortly after the conviction of defendant, he departed from the jurisdiction of this court without permission and has not returned; that since his departure, the police department of the city of Oklahoma City have sought the defendant for the purpose of questioning in connection with certain felonies committed in Oklahoma county, and have been unable to find him in the State of Oklahoma; that he is operating a nightclub in San Antonio-, Tex., and will not return to the State of Oklahoma.

The attorney for the defendant filed a response to the motion to dismiss, indicating, that the defendant wasi not a fugitive from the state, and stating that he was ready at any time to- appear before the court to answer said application to- dismiss said appeal.

Upon the issues thus being joined, the motion was set for hearing, at which time the defendant failed to appear' in person, but did appear through his counsel, who stated to- the court that he had sought to find the defendant, but had been unable to- do so in order to inform him of this hearing. That he had written the defendant at his last known address, and the letter had been returned with a notation that the party had moved and left no forwarding address, and that his said attorney did not know of his whereabouts.

Whereupon, the county attorney of Oklahoma county introduced proof that in the trial of certain felony cases in Oklahoma county statements had been made by some witnesses, indicating that the said Robert Hurt was involved in certain felonies which had been committed in Oklahoma county; that said information was not sufficient in itself to justify the filing of a criminal complaint, but was of such importance that the officers sought the defendant, Hurt, for the purpose of questioning him in connection with said crimes. That they looked for him at various places where he was formerly known to have resided or spent part of his time, but they had been unable to- find the said defendant within the State of Oklahoma. That acting upon information received by the police department, the defendant was located in Port Aransas, Tex., but before the police officers of said city in Texas were notified to- pick up the defendant for questioning he had fled. That later the defendant was located in San Antonio, Tex.; but that he had refused the request of the policemen to return to Oklahoma City.

A telegram was introduced in evidence from the district attorney of Bexar county, Tex., in which it is stated that Robert Hurt had leased the Club Trocadero, and was personally in charge of the operation of said club.

In Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514, it is held:

“Where a defendant leaves this state without proper permission during the pendency of an appeal to this court, 'he is in the attitude of a fugitive from justice, and thereby waives the right to have his conviction reviewed. It then becomes a matter within the discretion of this court whether, under the facts and circumstances, the appeal will be considered and determined.”

See, also, Bryce v. State, 14 Okla. Cr. 456, 172 P. 976; Kincaid v. State, 30 Okla. Cr. 290, 237 P. 131; Ravenscraft v. State, 12 Okla. Cr. 283, 155 P. 198.

This court is more lenient towards persons convicted of misdemeanors in refusing to sustain motions to dismiss the appeal, where the defendant has left the state pending the appeal, than in felony cases, as in misdemeanor cases the personal presence of the defendant is not always necessary to satisfy the judgment. Even in felony cases, it is not the policy of this court to dismiss an appeal where the proof upon a hearing on a motion to' dismiss shows only a short, temporary absence from the state upon lawful business and wholly without intent to evade an order of this court, and the defendant has returned to the state. We favor the disposition of appeals upon their merits; but where it is shown that the defendant has willfully left the jurisdiction of this court and has committed an act in a foreign state, showing an intention to become a permanent resident of another state, and has failed to keep his attorney advised as to his whereabouts, the defendant has forfeited his right to have his conviction reviewed.

As was stated in Kilpatrick v. State, supra:

“While there is no' express provision of the statute authorizing the dismissal of the appeal on the grounds stated, yet, in the absence of a statute to tke contrary, it has been held to be a matter within the discretion of the court whether, under the facts and circumstances admitted, we will consider and determine the appeal. When the defendant left the state he was in the attitude of a fugitive from justice, and thereby waived the right to have his conviction reviewed. We do not think it would sub-serve the ends of justice to permit a person convicted of crime, enlarged on bond pending the determination of his appeal, to violate the conditions of his bond with impunity. August Earl Herring, alias Earl Herron, alias George Wilson, v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Taylor v. State, 27 Okla. Cr. 356, 227 P. 905; Burden v. State, 24 Okla. Cr. 60, 215 P. 1076; Webster v. State, 18 Okla. Cr. 183, 193 P. 431; Bryce v. State, 14 Okla. Cr. 456, 172 P. 976.”

Upon the proof submitted by the state, which is considered in connection with the admission made by counsel' for defendant, we are of the opinion that the defendant, by his conduct, has become a fugitive from justice and has waived the right to' have his appeal in this case considered and determined.

In arriving at this conclusion, we have considered the record, as shown by the case-made, to determine whether there are fundamental errors which deprived defendant of a fair and impartial trial for this offense, and have found none.

The appeal herein is, therefore, dismissed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: BAREFOOT, P. J.

text:
    LORRAINE PETREE v. STATE.
    No. A-9875.
    July 30, 1941.
    (115 P. 2d 921.)
    Baker H. Melone, of El Reno, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and W. L. Funk, Cot Atty., of El Reno-, for defendant in error.
   BAREFOOT, P. J.

The defendant, Lorraine Petree, was charged in the district court of Canadian county with the crime of selling intoxicating liquor, to wit: one-half gallon of Choctaw beer, to one Weldon Smith, a minor child, 14 years of age; was tried, convicted by a jury, and was assessed by the court a fine of $100 and to serve a term of one year in the penitentiary, and has appealed.

No brief has been filed or oral argument made by the defendant or by the state. Under the rules of the court, we have examined the record to see if any fundamental error was committed in the trial of this case.

The statute under which the defendant was charged is Oklahoma Statutes, 1931, see. 2622, O. S. A., Title 37, sec. 5, which is as follows:

“It shall be unlawful for any person to barter, sell or give to any minor, person of unsound mind, or habitual drunkard, any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed ■pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States. Any person violating any provision of this section shall be fined not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and imprisoned not less than thirty (30) days in the county jail, nor more than five (5) years in the State Penitentiary.”

The record reveals that Weldon Smith, who was a minor, 14 years of age, and three other boys, named De-Wayne Sands, Clyde LeFever, and Leroy Jones, who were also minors, were riding* in an automobile near defendant’s home at Calumet, in Canadian county, on the evening of the 8th of September, 1939, at about 6 or 6:30 p. m. All of the boys lived near the home of the defendant, and he was well acquainted with them. Two of the boys, Weldon Smith and DeWayne Sands, who was also 14 years of age, got out of the car and went to the home of the defendant, Lorraine Petree. Weldon Smith bought from the defendant a half-gallon fruit jar of Choctaw beer, and paid him the sum of $2 therefor. This money was given him by DeWayne Sands and Clyde LeFever. Gaddy Berry and Clyde LeFever remained at the car. The boys were told by defendant that if they were caught with the beer to tell that they got it from that German up north. They carried the beer, which was in a frnit jar, to where the other boys were in the car. They each took several drinks of the beer, and then proceeded to a school picnic, which was in progress close-by. They were causing a disturbance and were driven away by the teacher in charge. A part of the Choctaw beer, which was in the jar, was recovered and was analyzed by a chemist, and it contained 14.18 per cent alcohol by volume or 11.46 per cent by weight.

Each of the four boys was placed upon the witness stand for the state, and each of them testified to the facts as above stated. Each gave a detailed statement, and there was no conflict in their evidence.

Mr. Vernon C. Walker testified for the state that he was superintendent of the school at Calumet. That he was present at the picnic on the 8th of September, 1939, and that the four boys above named were there in a car. That they • were making an unusual noise, and that he went out and asked them to leave; that they were not in condition to be there, and were drunk. He took the jar of Choctaw beer from the back of the automobile, and turned it over to the constable, who in turn turned it over to the sheriff, and by him to the chemist who examined it.

The defendant presented as a defense what in court is known as an alibi. He testified that he left his home in Calumet between 3 and 3:30 on the evening of September 8, 1939, and went with a friend by the name of M. E. Sims, who lived at Watonga, to Anadarko, Okla. That they remained in Anadarko until about 6 or 6:30 o’clock, and then went to Bridgeport, in Canadian county, to a cafe; that they had dinner there about 8 o’clock. They remained there for about an hour, and did not return to- his home in Calumet until about 11 or 11:30 at night. He and his wife and Mr. Sims a,t that time went for a swim in the Canadian river.

He testified that he at no time sold any Choctaw beer or any liquor of any kind to- the prosecuting witness, nor did he see them on that date.

His testimony as to- these- facts was corroborated by his wife and Mr. Sims; also, by Mr. Jay Cro-wley, his uncle, who Avas staying at his- home. Mrs. Della Goucher testified as to the defendant and Mr. Sims being at her restaurant at Bridgeport. On cross-examination, she was-someAvhat uncertain as to the date that they were there.

The evidence also- revealed that the defendant had been convicted in 1929 on two- charges of cattle theft and sentenced to- the penitentiary, and that the sentences ran concurrently. He had also- been previously convicted of unlawful possession of intoxicating liquor. The evidence also- revealed that the Avitness Sims had been previously convicted of possession of intoxicating liquor.

Fro-m the above statement, it will be seen that there was a direct conflict in the evidence of the state and the defendant. It was clearly within the province- of the jury to pass upon the same. They saw the Avitnesses upon the stand, observed their demeanor, and were in a much better position to pass upon Avho was testifying to the truth than is an appellate court.

It has been the universal rule of this court that where there is a conflict in the evidence, that the verdict of the jury will not set aside. It is only when it is insufficient upon which to base a verdict that the same will be set aside. We have examined the information and the instructions of the court. They were in proper fo-rm and free from error.

The jury in this ease returned a verdict of guilty and left the punishment- to- the court. The court assessed a fine of $100 and confinement in the Penitentiary at Mc-Alester for a term of one year. Under the law, the maximum punishment was a fine of $2,000 and not to exceed five years in the penitentiary.

Under the facts in the case, we cannot say that the judgment and sentence was excessive.

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

JONES, J., concurs. DOYLE, J., absent.


text:
    GEORGE EDWARDS v. STATE.
    No. A-9772.
    July 30, 1941.
    (115 P. 2d 918.)
    Billingsley & Kennerly, of Wewoka, and Con Long, of Seminole, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

-The defendant, George Edwards, was by information filed in the superior court of Seminole coun-tv charged with the crime of murder; said cause was transferred to the district court of Seminole county, where defendant was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of ten years in the State Penitentiary.

The only contention presented is that the evidence is insufficient to support the verdict. No other contention being presented, counsel for defendant appeared before this court and asked that the case be submitted upon the case-made with petition in error attached, without requiring briefs or oral argument from either party, which request was accordingly granted.

We have carefully examined the record to ascertain the sufficiency of the evidence and to further determine whether there are any fundamental errors which might have prejudiced the substantial rights of the defendant.

According to the record, the evidence of the state showed that the deceased, Esker White, Ted Ponder, and Ethel Newby, who was living with defendant, had been drinking for several hours in two different places in Seminole. They came into the roominghouse where Ethel shared a room with defendant. Ethel knocked on the door of their room. There ivas no reply. She kicked the door, and a shot was fired from inside the room. Defendant opened the door, hit Ethel over the head with his pistol, came out into the hall, and fired at the two> men, who were fleeing out of the front door. Defendant came out the door with the pistol in his hand. He had been drinking. Esker White was shot through the abdomen and fell outside the house. He was taken to a hospital where he died as a result of the wound. Three empty shells from defendant’s pistol were found, one in defendant’s room, one in the hall, and one on the front porch. There were lights on in the house.

Testimony for defendant is to the effect that while White, Ponder, and Ethel Newby were coming to the defendant’s place, White made threats against defendant. Jnst outside the house he picked up an iron bar and took it into the hall with him. Ethel knocked on the door and then kicked on it. Defendant asked who was there. White threatened him and hit the door with the bar. Defendant shot above the door to scare them. White broke the latch on the door and went in. There was a scuffle and defendant shot again. It was so dark that he didn’t know who the people were. He ran out of the room and through the back door. Ethel was knocked down in the melee.

We have uniformly adhered to' the rule that this court will not reverse a conviction for insufficiency of the evidence where there is any competent evidence in the record from which a jury might reasonably conclude that defendant is guilty.

There is a conflict of evidence here that presents a question for the jury. The physical facts are against the defendant. Under this record, the defendant was fortunate in not receiving more severe punishment. The deceased was shot while trying to flee, after the defendant had struck the girl who was with him over the head with his pistol.

Counsel for defendant have pointed out no errors in the record; and after an examination, we have been unable to find any errors of sufficient importance to warrant a reversal of the judgment. Defendant was accorded' a fair and impartial trial, and the evidence is amply sufficient to sustain the conviction.

The judgment of the lower court is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    MARVIN SPARKS v. STATE.
    No. A-9852.
    Aug. 6, 1941.
    (116 P. 2d 219.)
    Willis R. Stark, of Oklahoma City, for plaintiff in. error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Marvin Sparks, was charged in the common pleas court of Oklahoma county with the unlawful possession of intoxicating liquor; a jury was waived; defendant was tried, found guilty, and sentenced to serve 30 days in the county jail and to pay a fine of $50, and he has appealed to- this court.

The attorney for the defendant, since the filing of the appeal, has joined the armed forces of this nation, and by agreement this cause was submitted upon the record, oral argument and briefs having been waived.

We will consider the only contention made by counsel for defendant in his petition in error, to wit: The evidence obtained by the officers was obtained by an illegal search, and the evidence thus procured was not admissible against the defendant in the trial of said case.

The defendant was charged with the possession of 1,700 pints of whisky. At the beginning, of the trial, the defendant filed a motion to suppress the evidence secured under the search warrant for the reason said search warrant described a “one story frame house and out buildings, being the second house south of East Reno' avenue on the east side of State Street,” but that the officer executing the search warrant had searched “the third house south of East Reno avenue,” and that the defendant lived in the third house south of East Reno avenue, and that since the search warrant did not properly describe the premises where the defendant was living, that the evidence obtained under said search warrant should be suppressed.

At the close of the hearing on the motion to suppress the evidence, the court sustained the motion as to the whisky which was procured in the house where the defendant lived for the reason that the search warrant did not describe that house.

The trial proceeded upon the evidence pertaining, to the whisky obtained by the officers in a vacant house, adjacent to the lot upon which the defendant’s house was situated, and in which vacant house the officers found approximately 1,700 pints of whisky. In the trial of the case, the testimony of the officers with reference to the procuring of this whisky in the vacant house was not objected to and in no way was the legality of the search challenged.

On the motion to suppress the evidence the defendant swore that he had purchased two carloads of whisky of assorted brands and had placed them in the vacant house, next door to his home. He swore that he did not rent this house and did not have possession of it, but that the whisky was his, and that he had bought it for the purpose of selling it to anyone who wanted to buy it.

The officers testified that after searching the defendant’s house and finding some whisky, they went out on the back porch and noticed a trail leading to the vacant house, and that they walked over to the vacant house; the door was open and they saw several hundred pints of whisky in case lots on the floor. The defendant, when questioned by the officers concerning the house next door before they proceeded over there, told the officers that the house was unoccupied, and that no' one lived there. After finding the whisky, the officers again questioned the defendant, and he admitted that the whisky belonged to him.

The defendant offered no evidence.

The house in which the whisky, upon which the conviction was sustained, was found, was not a part of the defendant’s residence, and, according to> his own testimony, did not belong to him, was not rented by him, and was not in his possession at the time the whisky was found; and under the uniform holdings of this court, he was not in a position to complain of the admission of this evidence.

In the recent case of Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394, 395, the second paragraph of the syllabus is as follows:

“Constitutional provisions guaranteeing, one immunity from unlawful search and seizure is personal, and one accused will not be heard to object that the search of the property or premises of some third person is. a violation of his constitutional rights. Oklahoma Statutes Annotated, Constitution, article 2, section 30.”

In Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843, 844, this court again declared:

“This court has many times held that the constitutional provisions guaranteeing one immunity from unlawful search and seizure is personal to the occupant of the premises involved; and one accused of crime will not be heard to object that a. search is unlawful where the accused denies that he owns or has possession of the property or premises searched.” Tacker v. State, supra; Rogers v. State, 72 Okla. Cr. 123, 113 P. 2d 606; Chanosky v. State, 52 Okla. 476, 153 P. 131; Hall v. State, 39 Okla. Cr. 254, 264 P. 221.

Under the record, the evidence was properly admitted, and we find no errors committed by the court in the trial of this case.

The punishment received by the defendant was very light, considering the exceedingly large number of bottles of whisky found by the officers. Defendant is fortunate that he did not receive the maximum penalty instead of the minimum penalty provided by the statute.

The judgment of the court of common pleas is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    E. D. BROWN v. STATE.
    No. A-9863.
    Aug. 6, 1941.
    (116 P. 2d 216.)

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Cot Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
    Glen O. Morris, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, E. D. Brown, was charged in the court of common pleas of Oklahoma county with the crime of maintaining and operating a public nuisance; was tried, convicted and sentenced to pay a fine of $50 and serve 45 days in the county jail, and has appealed.

The statute upon which this prosecution was based, Oklahoma Statutes 1931, section 2616, O. S. A. Title 37, sec. 73, is as follows :

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

This statute was enacted on the 11th day of March, 1911, and has been construed by this court in many cases. It is contended by defendant in his brief for reversal of this cause that in order to constitute a nuisance:

“* * * it must be a place maintained or kept by the defendant where he manufactures, sells, barters, gives away or otherwise furnishes intoxicating liquor in violation of the provisions of the prohibitory liquor law, or a place where any such liquor is kept or possessed by any person in violation of any provision of the prohibitory liquor law, or be a. place where persons congregate or resort for the purpose of drinking any such liquor.”

Defendant then argues under this proposition that the Legislature did not intend to bring persons under this statute where other persons brought liquor into a defendant’s place of business and drank the same “against the rules and regulations and unbeknown to the operator of said place.” It is further argued:

“* * * It is incumbent upon the state to prove that the place was a place where intoxicating liquor was kept, bartered, sold or given away by defendant, being the keeper or operator of said place, or that the same was being bartered, sold, given away or otherwise furnished to persons with his knowledge or acquiescence therein.”

Even if defendant’s argument is true, we are of the opinion that the facts in this case present just such a state of facts under which it is argued that the defendant would' be guilty as charged under this statute. As authority for this contention defendant cites the case of Simpson v. City of Tulsa, 67 Okla. Cr. 224, 93 P. 2d 539. We have read this case and find that it involves a charge of unlawful and reckless driving of an automobile on the streets of the city of Tulsa, and has application only in general principles to the facts in the instant case.

As above stated, the facts as revealed in the case at bar' were that the defendant, E. D. Brown, Avas operating a beer parlor and dance hall in a certain location, a “one story frame building located 6001 South Shields,” etc. That he had been operating, the same for a period of eight years, and it was being conducted as what is known as a night club. This place was raided by the officers of Oklahoma county on the night of November 4, 1939, by six deputy sheriffs. The evidence of the state is principally the evidence of these officers Their evidence Avas practically the same, and we shall refer to it together. They testified that defendant had operated the place for many years; that he owned the building adjoining it in Avhich was located an auto service station, and that defendant had rented it to a man by the name of Townsend; that the door into this station Avas only about six feet from one of the entrances to defendant’s place of business; that this service station had been raided by the officers many times and liquor had been found there, and on this occasion 200 or 300 pints had been found. There was also testimony by the officers that whisky was brought from this filling station to defendant’s place of business upon order. The officers also testified that they had raided defendant’s place on many occasions and had visited it on many more; that they had frequently seen minors there drinking beer in the presence of the defendant and had seen other persons there drinking whisky, and on several occasions they had seen the young lady who Avorked for defendant run and pour out whisky on their approach; that they had frequently warned and notified defendant that unless he cleaned up his place and quit selling beer to minors they would file charges against Mm; that there was a bar and glasses in the place of business and also booths as are usually used in night clubs of this character.

On the night of November 4, 1939, they had seen the orchestra leader drinldng whisky out of a bottle in one of the booths, and that he was arrested and charges were filed against him which were afterwards dismissed by the justice of the peace when the witnesses did not appear. They were never subpoenaed. These officers also testified that defendant was present on many occasions when they saw minors drinking beer upon the premises, and that he saw them; that they were young school boys. On one occasion several young boys from Britton highschool were found on the premises with a quart bottle of liquor. It was poured out by the officers. Their names were taken by the officers, and they were arrested but not prosecuted. They were not called upon to testify in this case. The assistant county attorney should have ascertained their names and had them present as witnesses. They claimed to have bought the liquor from Mr. Townsend who rented the service station from defendant.

The officers, after testifying to the above facts and others, each testified that they were acquainted with the general reputation of defendant’s place, and that it had the general reputation of being a place where intoxicating liquor was being sold and consumed on the premises. The evidence also revealed that defendant’s license to sell beer had been vacated on hearing.

From the above statement it can be readily seen the evidence was sufficient to justify the court in finding the defendant guilty of operating a public nuisance under the statute above quoted. See the following cases: Fonville v. State, 37 Okla. Cr. 1, 255 P. 591; Faulk v. State, 34 Okla. Cr. 431, 247 P. 112; Williams v. State, 55 Okla. Cr. 385, 30 P. 2d 932; Musgrove v. State, 55 Okla. Cr. 230, 28 P. 2d 584; Hilbert v. State, 44 Okla. Cr. 89, 279 P. 910; Blanton v. State, 38 Okla. Cr. 149, 259 P. 655.

This case was tried before the court without the intervention of a jury, and the finding of facts is the same as if passed upon by a jury.

It is further contended : “* * * that the court erred in allowing the county attorney to attempt to prove the general reputation of defendant’s place by officers and officers alone.”

To sustain this contention the case of Small v. State, 21 Okla. Cr. 99, 210 P. 317, is cited. This case is in no way in conflict with the decisions of this court upon the question of proving the reputation of one’s place of business where, he is charged with conducting a public nuisance under the statute. Prom the earliest days of this court and after the enactment of the statute above quoted, it has been held that, where one is charged with conducting a public nuisance or with the unlawful possession' of intoxicating liquor and at a place of public resort, one knowing the general reputation of said place, as being a place where intoxicating liquor is being sold in violation of the laws of this state, has the right to so> testify, and we know of no law that prohibits officers of the law from testifying to this fact the same as any other person. The officers testified in this case that they had this personal knowledge; that many people in the community had talked to them and had telephoned to them with reference to this identical place, and that this reputation was a general reputation and was not based alone upon individual raids made by them. This court has often held that, where a person is charged with the sale of intoxicating liquor or with illegally conveying intoxicating liquor, this is a specific charge and that proof that the individual is a bootlegger or has the reputation of being one who engages in the illegal sale of intoxicating liquor is inadmissible. The one refers to the reputation of the place, the other to the person. The on© is admissible, the other is inadmissible. Frazier v. State, 31 Okla. Cr. 324, 239 P. 185; Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Jones v. State, 55 Okla. Cr. 134, 26 P. 2d 435; Thomas v. State, 64 Okla. Cr. 265, 79 P. 2d 625.

From the aboye statement it is our opinion that the court did not error in finding the defendant guilty under the evidence in this case. The judgment of the court of common pleas of Oklahoma county is therefore affirmed.

JONES, J., concurs. DOYLE, J., absent.


text:
    HENRY BLUMHOFF v. STATE.
    No. A-9843.
    Aug. 13, 1941.
    (116 P. 2d 212.)

      Melton, McElroy & Vaughn, of Chickasha, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Henry Blumhoff, was charged jointly with one Jess Russell in the district court of Grady county, Okla., with the offense of larceny of domestic animals; was granted a severance, tried, convicted and sentenced to serve two years in the state penitentiary, from which judgment and sentence he appeals to this court.

Counsel for defendant argue that this case should be reversed for the reasons that the evidence is insufficient to support the conviction, and that the court committed prejudicial error in excluding certain testimony..

The chief contention of defendant is that there is no corroboration of the testimony of the accomplice, Jess Russell.

From a reading of the record, it appears that H. O. Freeman was the owner of a yellow Jersey heifer of the value of |37.50, which was sold at auction on January 18, 1938, at Frank Heath’s place in Grady county to one Jess Russell. This heifer was taken from Heath’s premises without being paid for. About midnight, two days later, she was left in the vicinity of the Heath place.

Counsel for defendant admit that defendant was present at the sale and that the yellow Jersey was loaded into his pickup. They further admit that on the night Russell was arrested, the defendant took the heifer in his truck back to the place from which she is alleged to have been stolen.

Jess Russell, who had been jointly charged with defendant in this case, was the principal witness for the state. He testified, in substance, that he had worked as a hired man for defendant for about a month prior to the larceny of the Jersey heifer. Before he started working for defendant he had been employed by a Mr. Ray who called him Charley. Defendant and his wife called him Charley for about a week after he went to their place, until he asked them to call him by his right name, Jess.

Russell stated defendant took him in the pick-up to an auction at Heath’s place near Chickasha. Defendant said that the other people would run the prices up too high on him if he bid, so he wanted Russell to< do the bidding for him. Russell protested; but defendant insisted, saying that he would pinch him when the bidding became too high and he would know when to stop. Russell first bid on a black Jersey cow, selected by Blumhoff, but let her go when defendant said the bidding was too high. Defendant then had him bid on a yellow Jersey heifer; he again protested, but bid her in. Defendant told him to give the clerk his name. They had another argument; Russell did as defendant told him.

Witness asked Blumhoff to be sure and settle for the heifer, which he said he would do. They put her in the pick-up. Russell stayed with her awhile. When defendant came back, upon witness’ questioning, he assured him that the heifer had been settled for. They drove to defendant’s home and put her in the lot.

On Wednesday, the day following, the yellow Jersey disappeared from the lot. Defendant told witness that he had sold her for $2.50 profit.

On Thursday the witness was carrying water into the house when defendant told him to run because the officers were coming. He refused to run or to- hide, and stood by the stove reading the paper. Defendant introduced him to the officers as “Sparks.” When they asked him his name, he told them it was Jess Russell. They took him to jail where he stayed for about three weeks.

The state offered further evidence that on the day after the larceny, H. O. Freeman, who owned the heifer, P. B. Smith, and George Cason talked with defendant at Duncan. They told him that a man by the name of Jess Russell had taken a yellow Jersey heifer from Heath’s place in a pick-up that answered the description of defendant’s, and asked him if he knew Jess Russell. Defendant replied that he knew a Russell, but did not know Jess Russell. He denied hauling a heifer away from the sale, and even having been present at the sale.

Brooks Hurvey, sheriff of Stephens county, stated that he and DeArthur Wilson, a deputy from Grady county, went to defendant’s place on Thursday after the larceny. As they approached defendant’s house, a man went in the back door. They told defendant that they were looking. for Jess Russell who' had taken the heifer. Defendant said there was no man there and that he had not been to the sale. They asked about the man they had seen go into the house. Defendant said he was the hired man.

DeArthur Wilson testified that defendant told him that his cattle were down in the field and that he could look them over. Witness said he could see down through there and didn’t see any that answered the description. Jess Russell was in the house and they took him to jail.

William McCarter testified that he had a pasture several miles from defendant’s home, where defendant was keeping some horses; that sometime in the middle of the week defendant brought a yellow heifer to his place and left her. She was taken away two or three days later in the night. Witness was uncertain as to the dates.

Gertrude Blumhoff, wife of defendant, is the only witness whn testified in his behalf. She stated that she had known Jess Russell as “Charley Russell.” Russell told her that he had purchased the cow at a sale and that when he had another cow or two and some chickens he would bd ready to start farming. The day after Russell bought the cow, defendant went to a sale at Duncan. When he came home he asked Russell if his name was Jess, and said that the people in Grady county were looking for him because he had not paid for the cow. Russell said that he had made a note for her. When the officers came the next day, Russell asked defendant to take the cow back for him. The cow had been in the lot all of the time where she could see her.

Defendant did not take the stand in his own defense.

Counsel for defendant admitted that the heifer was taken away from Heath’s place in defendant’s pick-up. The state introduced the testimony of several witnesses that defendant denied having been to the sale or knowing anything about the heifer. The man who was running the cattle out of the barn into the sale ring swore that defendant asked him to hold the Freeman heifer back for awhile as he had a partner coming who wanted to bid on the cow. Defendant stated to the officers that there was no man in Ms house, when Russell was standing in the kitchen. Russell’s testimony that the heifer was taken away from Blumhoff’s place on Wednesday, after the larceny, is corroborated by McCarter’s statement that Blumhoff had left the heifer at his place and that she disappeared in the night. Counsel for defendant further admitted that defendant left the heifer in the viciMty of Heath’s during the night after Russell’s arrest. Another witness for the state said that the heifer was not in the lot at Blumhoff’s on Wednesday, in contradiction of the statement of defendant’s wife that the Jersey was in the lot where she could be seen at all times. Defendant did not take the stand to explain Ms actions or his possession of the stolen animal.

This court held in the recent case of Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763, that:

“The rule, simply stated, is that the testimony of an accomplice must be corroborated by other evidence tending to connect defendant with the commission of the offense; that it is not necessary that such testimony, standing alone, should be sufficient to convict defendant; and that incriminating' circumstances shown by the evidence are sufficient, if they tend to' connect the defendant with the commission of the offense. * * *
“It is not essential that the corroborating evidence shall cover every material point testified to by accomplice or be sufficient alone to' warrant a verdict of guilty. If the accomplice is corroborated as to' one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or circumstances thereof.” Davenport v. State, 20 Okla. Cr. 253, 202 P. 18; Henson v. State, 69 Okla. Cr. 273, 101 P. 2d 1060; Bliss v. State, 47 Okla. Cr. 225, 287 P. 778; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825.

In Johnson v. State, 62 Okla. Cr. 386, 71 P. 2d 786, it is stated:

“Evidence corroborative of an accomplice need not directly connect the accused with the commission of the crime. It is sufficient, although circumstantial, if such evidence tends to connect him with its commission.”

There is independent evidence tending to connect defendant with the commission of the crime charged, and the weight and sufficiency of this evidence is for the jury. Where the jury has returned its verdict, this court will take the strongest view of the corroborating testimony that the evidence warrants. Haas v. State, 37 Okla. Cr. 335, 257 P. 1115.

We are of the opinion that the testimony of the accomplice, Bussell, was corroborated, and that there is sufficient evidence to support the conviction.

Defendant maintains that the court committed prejudicial error in sustaining the state’s objection to the following questions asked by defendant’s counsel in the cross-examination of the witness, Bussell:

“Q. Do you know you have never pled guilty in this case — you have not, have you? Mr. Williams: To which the state objects; that is incompetent, irrelevant and immaterial. The Court: Objection sustained. Mr. McElroy: Exception. Q. Never served any time in this case, have you? Mr. Williams: Objected to; incompetent, irrelevant and immaterial. The Court: Sustained. Mr. McElroy: Exception.”

The general rule is that anything is proper on cross-examination which tends to show bias or prejudice on the part of the witness, his friendship or enmity toward either of the parties, or circumstances under which he has a temptation to swear falsely. Scott v. State, supra; Henry v. State, 6 Okla. Cr. 430, 119 P. 278.

During the examination of Russell it ivas brought out that he had been arrested in connection with this offense, held in jail about three weeks, charged jointly with defendant, released from jail on his own bond, and subpoenaed by the state as a witness. This is a sufficient basis upon which the jury could judge the credibility of the witness. However, the facts as to what kind of a plea he had made, if any, and as to whether or not he had been convicted and punished, in connection with the charge made against him groAving out of this same offense, goes to the credibility of the witness and was competent for consideration of the jury. Yet, under the circumstances, Ave do> not think the defendant was prejudiced by reason of the exclusion of this testimony since the jury assessed the minimum penalty allowed by law against him.

Finding no errors of sufficient importance to reverse the judgment of the lower court, the case is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    SUSIE WEBB v. STATE.
    No. A-9879.
    Aug. 13, 1941.
    (116 P. 2d 212.)

      Mac Q. Williamson, Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for the State.
    Harry C. Kirkendall, of Enid, for defendant.
   BAREFOOT, P. J.

Defendant, Susie Webb, was charged in the county court of Garfield county with the unlawful possession of intoxicating liquor, to wit, eight pints of whisky and four half-pints of alcohol; was tried, convicted and sentenced by the court to pay a fine of $250 and serve four months in the county jail.

The appeal in this case was filed in this court on the 3rd day of June, 1940. No brief has been filed by the defendant in support of the errors assigned, and no oral argument presented. Under the rules of the court, we have examined the record and have read the evidence; have examined the information and instructions of the court. We have found no fundamental error in the trial. The jury returned a verdict of guilty and left the punishment to the court, and the defendant was assessed a fine of $250 and four months in the county jail.

There is evidence showing that defendant persisted in conducting the place of' business of her husband, who was in jail for a violation of the liquor law, but taking all the facts into consideration, we are of the opinion that justice would be subserved by modifying the judgment and sentence in this case from a fine of $250 and four months in jail to' a fine of $250 and thirty days inj jail, and it is so ordered.

JONES, J., concurs. DOYLE, J., absent.