text:
    In re E. D. (DOTY) HERNDON.
    No. A-5523.
    Opinion Filed April 8, 1925.
    (234 Pac. 1118.)
    Application of E. D. ‘(Oaty) Herndon for writ of habeas corpus for reduction of bail.
    Allowed.
    Sigler & Jackson, for petitioner,
    . The Attorney General and Charles Hill Johns, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, E. D. (Doty) Hern-don, was committed by a justice of a peace of Carter county after a preliminary examination and without bail to answer to the district court of that county upon a charge of murder, alleged to have been committed by driving an automobile over a child on a street of Ardmore. That on the 31st day of March, 1925, said district court made an order allowing him bond in the sum of $7,500; that thereafter, on the 6th day of April, the petitioner made application to the district court to reduce said bond, and the same was denied. It is averred that the proof before said examining magistrate was not sufficient to authorize the holding of petitioner for the crime of murder, and did not show or tend to show the defendant guilty of any crime, except that of involuntary manslaughter; that thet transcript of the testimony is herewith filed and made a part of this application. It is averred that petitioner has made every effort possible to make said bond and failed; that he has no property; that his parents own no property, except a small home in Ardmore. Upon a consideration of the application and the evidence in support thereof, it is considered, ordered, and adjudged that said bond be and is hereby reduced to the sum of $4,000, said bond to be conditioned as by law provided, to be approved by the court clerk of Carter county; that upon approval of the same the said court clerk shall notify the sheriff of Carter county, who shall release petitioner from custody.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re GUS KEY.
    No. A-5501.
    Opinion Filed April 14, 1925.
    (234 Pac. 1118.)
    Petition of Gus Key for writ of habeas corpus. Cause dismissed.
    Sigler & Jackson, for petitioner.
   PER CURIAM.

The petition filed in this court on March 25, 1925, alleges the unlawful restraint of petitioner by the sheriff of Carter county, on a commitment issued after a preliminary examination to answer to the district court of Carter county upon a charge of automobile theft, and alleging the evidence is insufficient to show probable cause that petitioner was guilty of the crime charged. On the same day counsel for petitioner filed motion to dismiss the cause. It was so ordered.


text:
    J. W. McEWEN v. STATE.
    No. A-4841.
    Opinion Filed April 2, 1925.
    (234 Pac. 1117.)
    Appeal from District Court, Oklahoma County; Hal Johnson, Assigned Judge.
    J. W. McEwen was convicted of a second offense of illegally transporting whisky, and he appeals-
    Affirmed.
   PER CURIAM.

J. W. McEwen, plaintiff in error, was by verdict of a jury found guilty of a second offense of illegal transportation of intoxicating liquor, with his punishment fixed at a fine of $50 and confinement in the county jail for a period of 6 months. No briefs havei been filed by either party. An examination of the record disclosed that the information is sufficient, that the evidence anaply supports the accusation and the verdict, that the instructions of the court fairly stated the law of the case, and that the plaintiff in error otherwise had a fair trial. The judgment of the trial court is therefore affirmed.


author: PER 'CURIAM.

text:
    BILL MARSHALL v. STATE.
    No. A-4900.
    Opinion Filed April 14, 1925.
    (234 Pas. 1118.)
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    Bill Marshall was convicted of the illegal sale of whisky, and appealed.
    Appeal dismissed.

      W. B. Toney, for plaintiff in error.
    The Attorney General and G. F. Fulton, Asst. Atty. Gen., for the State.
   PER 'CURIAM.

Bill Marshall, plaintiff in error, was convicted of the offense of unlawfully selling whisky, on July 10,1922, to one V. G. Lewis, with his punishment fixed at a fine of $100 and costs, taxed at $38.60, and confinement in the county jail for a period of 3'0 days. Upon the showing made by the attorney for the plaintiff in error and the Attorney General, it appears that the plaintiff in error is now deceased. It is therefore ordered that the proceedings here be abated, and the appeal dismissed.


author: EDWARDS, J.

text:
    HARRY NICKELL v. STATE.
    No. A-4746.
    Opinion Filed April 25, 1925.
    (235 Pac. 262.)
    (Syllabus.)
    1. Judgment and Sentence — Statutory Requirement as to Lapse of Time Between Verdict and Sentence — Waiver. Upon tbe return of a verdict of guilty by a jury, the court must appoint a time for pronouncing judgment, which time must be at least two days after the verdict, if the court intends to remain in session so long, or, if not, at as remote a time as can reasonably be allowed. But such right may be waived by a defendant either by a request for immediate sentence or by conduct reasonably construed as a consent for earlier action by the court, or by a failure to request such right in seasonable time.
    (a) For the. state of facts which amount to a waiver by conduct, see opinion.
    2. Punishment for Assault and Battery Excessive. Evidence examined,, and found that the punishment assessed is excessive under the evidence, and reduced by modifying to omit jail sentence.
    Appeal from County Court, Dewey County; R. L. Foster, Judge.

      Harry Nickell was convicted of assault and battery, and he appeals.
    Modified and affirmed.
    Homer N, Boardman, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty Gen., for the .State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Dewey county, on a charge of assault and battery, and sentenced to pay a fine of $75, and to serve a term of 30 days in the county jail. He appeals, assigning various grounds of error, but the only assignment argued in the brief is that the court did not allow two days after the verdict before passing sentence, as provided by sections 2759 and 2760, Comp. St. 1921. This provision of the statute, which requires the court to appoint a time for passing sentence which shall be at least two days after the verdict, if the court intends to remain in session so long, was intended to givei an accused time to prepare proper motion for a new trial or in arrest of judgment. Such provision has been considered by this Court in the following cases: Adams v. State, 21 Okla. Cr. 448, 209 P. 189; Terrell v. State, 16 Okla. Cr. 287, 177 P. 125 — and prior to statehood was considered by the territorial Supreme Court in the case of Jones v. Ter., 4 Okla. Cr. 45, 43 P. 1072, and also in the case of Rhea v. U. S., 6 Okla. 249, 50 P. 992, where it was held that, even if a case be reversed on this ground, the lower court should resentencei on the prior verdict. This provision, however, is one that may be waived, and is waived if the accused requests the court to pronounce sentence (Terrell v. State, supra), or it may be waived by conduct or failure to request time (Hill v. State, 9 Okla. Cr. 629, 132 P. 950).

An examination of the record upon this point does not disclose any request of any Mnd for an extension of time, and the first suggestion of error on this point is after sen-tencei. The journal entry, dated the same day as the verdict, makes the following recital:

“* * * And thereafter, on the same day, the court, before pronouncing sentence, asked the state and defendant if they had anything to say. State asked for the maximum punishment; defendant by his attorney asked for small fine without jail sentence. Called upon the defendant to stand up and the defendant having stood up, the court pronounced judgment and sentence, sentencing the defendant to serve a term of 30 days in the county jail, and to pay a fine of $75 and the costs of this case. The defendant objected and excepted to the action of the court in pronouncing judgment without first giving defendant a chance to make a statement as to why sentence should not be pronounced upon him, and the exceptions ywere allowed by the court. The defendant further objected and excepted to the action of the court in rendering judgment and passing sentence before the expiration of two days from the return of the verdict, and the exceptions were allowed by the court.”

When the court asked the defendant if he had anything to say, and his counsel thereupon requested that he be given a small fine without jail sentence, that constituted a waiver of the provision requiring two days between the verdict and sentence. It was in effect a request that the court then act upon the matter. After the court had passed sentence, apparently more severe than was anticipated, he will not then be heard to say that the court had violated the statute. It amounts to an invited error, if an error at all.

Our examination of the record, however, convinces us that the punishment imposed was more severe than was warranted by the evidence, and that the sentence should be reduced from a fine of $75 and 30' days in the county jail to a fine of $75, and, as modified, is affirmed.

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


author: DOYLE, J.

text:
    CHARLES KEITH v. STATE.
    No. A-4358.
    Opinion Filed April 25, 1925.
    (235 Pac. 631.)
    (Syllabus.)
    1. Evidence — Searches and Seizures — Constitutional Guaranties Against Unreasonable Search and Seizure, and Against Self-Incrimination. Constitutional provisions against unreasonable searches and seizures, and against compelling one to be a witness against himself, secure the individual in his person, his home, and his property from invasion through unbridled and unrestrained executive or administrative will.
    2. Same — Arrest—Search of Person Without Warrant Except of One Legally Arrested for Property Connected with Offense, or Weapons, is Unconstitutional. It is unlawful under section 30, art 2, of the Constitution of this state, forbidding unreasonable searches and seizures for an officer, without a warrant authorizing it, to search a person, except that one legally arrested may be searched for property connected with the offense that may be used as evidence against him, or for weapons or things that may assist escape or acts of violence.
    3. Searches and Seizures — '“Unreasonable Searches and Seizures.” All unlawful searches and seizures are unreasonable within the meaning of the constitutional provision forbidding unreasonable searches and seizures.
    4. Arrest — Arrest Without Warrant — Misdemeanors. Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.
    5.- Same — Offense not Committed in “Presence” of Officer if Act Unknown to Him. Where the officer does not know of the act constituting the offense, it is not committed in his “presence.”
    6. Arrest — Intoxicating Liquors — Person not to Be Searched on Sus1-picion of Having Liquor Without Warrant, Unless in Custody Under Lawful Arrest. No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the. prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.
    7. Searches and Seizures — Taking Liquor from Person Forcibly Without Search Warrant or Warrant for Arrest an Unlawful and Unreasonable Search and Seizure. Where a bottle, later found to contain intoxicating liquor, was taken from the person of defendant forcibly and against his will, and without a search warrant for his person, or a warrant for his arrest, this constituted an unlawful and therefore an unreasonable search and seizure under section 30, art. 2, of the state Constitution.
    ■8. Evidence — Neither Liquor nor Evidence of Possession Obtained by Unlawful Search of Person Without Warrant for Arrest Admissible as Evidence of Unlawful Transportation. In a prosecution for unlawfully transporting intoxicating liquor, defendant cannot be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, or the evidence of the possession thereof so acquired is admissible against him.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Charles Keith was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded, with directions. •
    Babcock & Trevathan and J. N. Roberson, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Charles Keith, was convicted under an information charging that he unlawfully transported and conveyed intoxicating liquor from some point within Canadian county unknown to the lobby of the Southern Hotel, in the city of El Reno, and his punishment fixed at confinement in the county jail for 30 days and a fine of $100. To reverse the judgment rendered on the verdict, he appeals and alleges that the trial court erred in overruling his motions to suppress and to exclude from the consideration of the jury certain evidence obtained by an unlawful .search of his person.

The undisputed facts are that about 10 o’clock in the evening of the day alleged, two policemen entered the lobby of the Southern Hotel; approaching the defendant who was sitting in a chair, one seized his hands and held him while the other searched him, taking from his person a bottle of whisky. Hei was arrested, and this prosecution followed:

Before, the commencement of the trial, counsel made a motion to suppress all of the evidence! which the state seeks to use, on the grounds that it had been obtained by means of an unlawful search of the person of the defendant, and was an unreasonable search and seizure, made in violation of the constitutional rights of the defendant. The prosecution admitted that the search was made without a search warrant and without a warrant for thei arrest of the defendant. The motion was overruled. During thé trial the question was saved for review by timely objections and exceptions.

F. V. Pierce testified that he saw the defendant on the street near the Southern Hotel, and about 80 minutes later saw him from the outside sitting in a chair in the lobby of the hotel, then he called Officer Culp, and they entered the lobby, and while he held the defendant’s hands Officer Culp took a bottle of whisky from his person.

A. W. Culp testified that the defendant was sitting in a chair talking to Mr. Howard, and he could see the print of a bottle in his pocket; when Officer Piercei grabbed his hands he took the bottle out of the defendant’s coat pocket, and it contained whisky. The bottle and its contents were introduced in evidence.

O. R. Howard testified that he was a merchant and had been sitting in a chair talking to the defendant for about 15 minutes when Officer Pierce came in and grabbed his hands, saying, “I am going to search you.” That he had not seen any whisky on the defendant.

At the close of the state’s evidence the defendant made a motion to strike all the evidence, whether by way of exhibit of by testimony, obtained by reason of the search and to withdraw thei same from the consideration of the jury, on the ground that the search was made in violation of his constitutional rights. The motion was overruled. He then moved for a directed verdict on the ground that the statei had failed to establish facts sufficient to constitute a public offense. This was also overruled.

The constitutional provisions particularly relied upon by defendant are as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” Const, art. 2, § 21.
“The right of the people to be securei in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated.” Const, art. 2, § 30.

Section 21 corresponds in substance with article 5, and section 30 is identical with article 4, respectively, of the amendments to thei Constitution of the United States.

It is well settled that the Fourth and the Fifth Amendments. to the Constitution of thei United States, apply only to the United States and can only be invoked as against the activities of the agencies of the federal government.

The federal courts hold that evidence, unlawfully obtained by the representatives of the government from the person, or the home, or the office of one suspected of crime, though obtained without force and coercion, is in violation of the Fourth Amendment of the federal Constitution, and that the admission of such evidence over objection would be in violation of thei Fifth Amendment; thus compelling the accused in effect to testify against himself. Boyd v. U. S., 116 U. S. 619, 6 S. Ct. 524, 29 L. Ed. 746; Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 658 Ed. 654; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; McKnight v. U. S., 115 F. 972, 54 C. C. A. 358.

Provisions substantially the same as the quoted provisions of our Constitution are found in the Constitutions of all the states. Thei state courts, generally, construe the provisions of section 30 as forbidding a search without a warrant, except when made as an incident to a lawful arrest. A person lawfully arrested may as an incident thereto be searched and articles found in his possession which are the subject of crime, or the means of committing it, or which may be of use as evidence at the trial, or which may be used in committing violence or in effecting an escape, may be seized. 2 R. C. L. 467; 5 C. J. 434.

In the cases in which a person may be lawfully arrested without a warrant, he may also be lawfully searched without a warrant..

The statute provides:

“A peace officer may, without a warrant arrest a person :
“First. For a public offense, committed or attempted in his presence.
“Second. When the person arrested has committed a felony, although not in his presence.
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.” Section 2471, C. S. 1921.

The offense charged against the defendant is punishable only by a fine and imprisonment in the county jail, and therefore is not a felony under our statute. Section 1503. Consequently the officers could not lawfully arrest him therefor without a warrant, unless the offense was committed or attempted in their presence.

It cannot be said that the criminal offense is committed in the presence of an officer, unless the acts constituting the offense become known to him at the time they are committed, through his sense of sight or through other senses; although a person may actually be committing a criminal offense, it is not committed in the presence of an officer within the meaning of the statute, if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting thei offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant. State v. Wills, 91 W. Va. 659, 144 S. E. 261, 24 A. L. R. 1398; State v. Pluth, 157 Minn. 145, 195 N. W. 789; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639, and annotation.

In State v. Pluth, supra, it is said:

“The fact that defendant was transporting liiquor not being discoverable without a search, the offense of transporting it was not committed in thei presence of the officers, and they had no authority to arrest him therefor without a warrant, and the search was unlawful because made without a warrant and not as an incident to a lawful arrest. 2 R. C. L. 467, par. 25. If the crime had been a felony, an arrest without a warrant might have been justified, and might have justified the search.”

In Hughes v. State, supra, it is said:

“The statei, having through its executive representatives produced the evidence of a violation of the law by one of its citizens by means prohibited by the Constitution, cannot be permitted through its judicial tribunal to utilize the wrong thus committed against the citizen to punish the citizen for his wrong; for it was only by violating his constitutionally protected rights that his wrong has ■been discovered. It is ho answer to say that it matters not how a citizen’s sins have been found out. Security from unlawful search is the right guaranteed to the citizen, even for the discovery of the citizen’s sins. This right we must protect, unless we may with impunity.disregard our oath to support and enforce the Constitution. The experience of our forefathers with unlawful searches and seizures was deemed by the people who framed the Constitution sufficient to warrant the provision by which in instances even the guilty might escape detection and punishment'.”

In Jokosh v. State, 181 Wis. 160, 193 N. W. 976, it is said:

“But it is claimed that the search was not unreasonable, because the officers saw the bottle before they seized the defendant and had good grounds for believing that the bottle contained intoxicating liquors. The trouble with the argument is that it would permit such officers to seize and search every person whom they found in possession of a bottle. The fact that in this case it did contain intoxicating liquor could not legalize the search, if unlawful in the beginning and before the nature of its contents was ascertained. A search must be lawful in its entirety. It is not made lawful by what is ascertained after it is made. U. S. v. Slusser (D. C.) 270 F. 818. Officers of the law have a right to know before the search is instituted whether or not it is lawful. They are not required to take the chances of responding in damages to the person searched, if it turns out that no contraband goods are found. The law is based upon the safer and saner ground that, if there is probable cause to believe that a person is in possession of contraband goods, a search warrant will issue. But it is a judicial question as to when there is probable cause, hence a proper magistrate must determine it. When it is held there is and a warrant .issues, the warrant protects the officers making the search. They are not left to the chance of being mulcted in damages if they fail to find contraband goods- The state has no right to subject its peace officers to such a penalty by saying, ‘A search is lawful if you find contraband goods, but unlawful if you do not find them. Enforce the law and take your chance.’ The constitutional guaranty protects persons and places from such a haphazard procedure by requiring the issuance of a search warrant upon due proof before a search can lawfully be made.
“Since it is not unlawful either as a misdemeanor or as a felony to have a bottle on one’s person, the search cannot be justified on the ground that the person searched was committing an unlawful act, and hence could be lawfully searched.
“It is also said that if searches such as this cannot be made the prohibition law cannot be enforced. This may be true in part, or it may be true in whole. The answer is that an article of the Constitution having its origin in the spirit if not in the letter of thq Magna Charta prevents it, and that it is the duty of the court to sustain and enforce the Constitution in its entirety, and not to permit what may seem to be presently a desirable mode of procedure to annul such fundamental portions of our organic law as the freedom from unlawful searches.”

In the case of Blacksburg v. Beam, 104 S. C. 146, 88 S. E. 441, L. R. A. 1916E, 714, it was held that a conviction for transporting alcoholic liquor was not authorized where a policeman, without any process, searched the defendant, obtained his trunk key, opened the trunk, which had been checked for transportation, seized whisky therefrom, and the next day procured a warrant for his arrest for such unlawful transportation of intoxicating liquor.

In the opinion it is said:

“We have no doubt but that a conviction under the recited circumstances is unlawful. Somei things are to be more deplored than the unlawful transportation of whisky; one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it must do so in conformity to the laws of the land. There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates. In the instant case the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant’s person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him.”

In Ashbrook v. State, 92 Okla. 287, 219 P. 347, it is said:

“All unlawful searches and seizures are unreasonable within the meaning of the constitutional provision forbidding unreasonable searches and seizures. * * *
“And the absolute security against unlawful search or seizure exists without reference to the guilt or innocence of the person whose property or premises is searched. The mere fact that he is guilty or that there may be reasonable grounds to believe that he is guilty of the charge preferred against him by the officer of which he is suspected, will afford no excuse or justification for an unlawful search or seizure.”

It must be conceded that a majority of the state courts hold that evidence procured by an unlawful search and seizure, if relevant and material and otherwise competent, is admissible.

An annotation found in 24 A. L. R. at page 1411, contains a long list of cases, arranged by states which hold such evidence admissible. The same annotation at page 1417 contains a similar list of cases which hold it inadmissible.

For ourselves we elect to stand as this court has heretofore stood, with thei federal and other courts which construe these provisions of the Bill of Rights as embodied in Constitutions to be something more than mere complications of glittering generalities. Russell v. State, 25 Okla. Cr. 423, 221 P. 113.

This court squarely aligned itself with rulings of the Supreme Court of the United States in Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Allen v. State, 25 Okla. Cr. 31, 218 P. 896; Langham v. State, 25 Okla. Cr. 33, 218 P. 897; Ashbrook v. State, 92 Okla. 287, 219 P. 347; Foley v. State, 25 Okla. Cr. 112, 219 P. 179; Magin v. State, 25 Okla. Cr. 361, 220 P. 666; Clark v. State, 25 Okla. Cr. 403, 220 P. 974; Dooley v. State, 25 Okla. Cr. 437, 221 P. 112.

We hold, therefore, that the evidence challenged in this case was taken by the officers by unlawful search and seizure and contrary to section 30, art. 2, supra, and was improperly received in evidence against the defendant in violation of his rights under that clause of section 21, art. 2, above quoted.

In conclusion wei will simply add that under the practice in this state the defendant might object to the introduction of the evidence when offered. He is not required, as he did in this case, to file a motion to suppress the evidence on the grounds that it had been obtained by an unreasonable search and seizure made in violation of his constitutional rights.

The defendant’s conviction, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, must be reversed.

Judgment reversed and cause remanded, with directions to discharge the defendant.

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


text:
    CHARLES KEITH v. STATE.
    No. A-4495.
    Opinion Filed April 25, 1925.
    (235 Pac. 634.)
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Charles Keith was convicted of unlawful transportation of intoxicating liquor.
    Reversed.
    Babcock & Trevathan, for plaintiff in error.

      George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted upon an information charging that he did on July 6, 1922, unlawfully transport intoxicating liquor from one place within Canadian county to another place therein, to wit, from the northeast corner of the brick building on lot 1, block 81, city of El Reno, to a point along the north side of said building, a distance of about 75 feet, and in accordance with thei verdict of the jury he was sentenced to be confined in the county jail for six months and to pay a fine of $500f. From the judgment he appeals and assigns as error the overruling of his motions to suppress and exclude from the consideration of the jury certain evidence obtained by an unlawful search of his person.

The undisputed facts are that F. V. Pierce, policeman, stopped the defendant on thei street and told him he wanted to search him, and the defendant refused to be searched. The policeman called another man, Marion Womack, to help search him, and they took from the defendant’s pocket a pint bottle of whisky. He was arrested, and this prosecution followed. Before the commencement of the trial the defendant moved to suppress all the evidence on the ground that it had been obtained by means of an unlawful search of the defendant and was an unreasonable search and seizure made in violation of the constitutional rights of thei defendant. The prosecution admitted that the search was made without a search warrant and without a warrant for the arrest of the defendant.

Against the defendant’s objections, the bottle of whis-ky was offered in evidence.

The questions presented are the same as in case of Keith v. State, 30 Okla. 168, 235 P. 631, opinion this day handed down.

For the reasons given in the opinion in that case, the judgment of the lower court is reversed.


text:
    CHARLES KEITH v. STATE.
    No. A-4496.
    Opinion Filed April 25, 1925.
    (235 Pac. 635.)
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Charles Keith was convicted of unlawful transportation of intoxicating liquor.
    Reversed.
    Babcock & Trevathan, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Charles Keith, was convicted upon an information charging that he did on August 27, 1922, unlawfully transport intoxicating liquor from a point unknown in Canadian county to a building at the corner of Bickford avenue and Mays street, El Reno. The jury failed tp agree upon the punishment. The court sentenced the defendant to be confined for 90 days in the county jail and to pay a fine of $250. From the judgment he appeals and assigns as error the overruling of his motion to suppress and exclude from the consideration of the jury certain evidence obtained by an unlawful search of his person.

The undisputed facts are that F. V. Pierce, a policeman, searched the person of the defendant and took from his inside coat pocket a bottle of com whisky. He was arrested, and this prosecution followed.

Before the commencement of the trial the defendant moved to suppress all the evidence on the ground that it had been obtained by means of an unlawful search of the defendant and was an unreasonable search and seizure made in violation of the constitutional rights of the defendant.

Against the defendant’s objection the bottle of whisky was offered in evidence.

The questions presented are the same as in case of Keith v. State, 30 Okla. Cr. 168, 235 P. 631, opinion this day handed down.

For the reasons given in the opinion in that case, the judgment of thei lower court is reversed, and the cause remanded, with direction to discharge the defendant.


text:
    Ex parte BILL BROWN.
    No. A-5545.
    Opinion Filed April 25, 1925.
    (234 Pac. 1116.)
    In re application of Bill Brown for writ of habeas corpus to be let to bail.
    Writ allowed.
    Womack, Brown & Cund and Sandlin & Winans, for petitioner.
    The Attorney General and •. Long, Co. Atty., for the State.
   PER CURIAM.

This is an application by habeas corpus on the part of the petitioner, Bill Brown, to be let to bail upon a charge of rape in the first degree, pending in the district court of Jefferson county, on a change of venue from the district court of Stephens county. The cause has been submitted on the petition, affidavits, and a certified transcript of the record taken at the preliminary hearing. The case was set down for oral argument, and has been fully presented to the court on the part of both the petitioner and the state. Since the argument this court has examined the record of the testimony taken at the preliminary, and is of the opinion that the petitioner should be admitted to bail in the sum of $10,000, with good and sufficient surety, to be approved by the court clerk of Stephens county.


text:
    DELLA MANUEL v. STATE.
    No. A-4800.
    Opinion Filed April 11, 1925.
    Rehearing Denied April 27, 1925.
    (235 Pac. 258.)
    (Syllabus.)
    1. Appeal and! Error — Verdict Warranted by State’s Testimony not Disturbed. A verdict on conflicting evidence and warranted by tbe testimony of the state, ii believed, will not be disturbed on appeal.
    2. Intoxicating Liquors — Evidence Sustaining Conviction for Illegal Possession. Evidence examined, and held sufficient to warrant conviction of defendant for illegal possession of intoxicating liquor.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Della Manuel was convicted of illegal possession of intoxicating .liquors, and she appeals.
    Affirmed.
    M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Della Manuel, on or about the 11th day of June, 1923, did have possession of certain fermented and malt and intoxicating liquor, “to wit, ten gallons of intoxicating beverage which contained more than one-half of one per cent, alcohol measured by volume” with the intention of selling the same. On the trial the jury returned a verdict finding the defendant guilty as charged in the information and leaving the punishment to the court. Motion for new trial was' duly filed and overruled. The judgment and sentence of the court was that defendant be confined for 60 days in the county jail and pay a fine of $100. From the judgment she appeals and assigns as error that the verdict is not supported by süfficient evidence.

The evidence shows that H. L. Watts, deputy sheriff, in company with J. P. Morgan and H. G. Hughes, deputy sheriffs, acting under authority of a regularly issued search warrant, searched the premises occupied by this defendant for intoxicating liquors. It apears that there were two houses on adjoining lots on Orchard street in Muskogee, owned by one Roy Tiller; one was an old house and the other a new one. About a week before the raid, the defendant had moved from the old house into the new one. There was a stove and table and other furniture still in the old house. The telephone had not been removed. The officers found a quart of Choctaw beer in the new house and found 40 quarts of. Choc beer in the old House; it was agreed by and between the state and the defendant that the analysis made of the beverage contained 4.1 per cent, alcohol measured by volume!.

J. P. Morgan testified that as he went in the front door the defendant poured some Choc into a slop jar; that two white fellows were sitting at a table drinking; that he took up their glasses and the pitcher which she had, all of which smelled of whisky.

Some evidence was offered tending to show that the reputation of the house was that as a place where people frequented to sell, buy, and drink intoxicating liquor.

At the close of the testimony for the state, the defendant moved for a directed verdict of acquittal on the ground that the evidence was insufficient to prove the offense charged in the form of a demurrer to the evidence which was overruled.

As a witness in her own behalf, the defendant testified that she was not occupying the old house when the officers made the raid, and that no one was living there. She denied that the officers found any beer in her house; she admitted that she owned the furniture in the old house.

It is the well-settled rule that a verdict on conflicting evidence and justified by the testimony of the state, if believed, will not be disturbed on appeal.

Several assignments of error are directed to the admission of alleged incompetent testimony. Without setting out the record as to the particular objections made and the rulings thereon, it is sufficient to say that we find no error therein.

Upon a careful examination of the record, our conclusion is against counsel’s contention on all the assignments urged.

The judgment of the trial court is therefore affirmed.

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


text:
    LEONARD RAUEN v. STATE.
    No. A-4845.
    Opinion Filed April 1, 1925.
    Rehearing Denied April 27, 1925.
    (234 Pac. 1112.)
    (Syllabus.)
    Parent and Child — Criminal Neglect of Child — Evidence Sufficient. In a prosecution against a father for willfully failing to furnish necessary food and clothing for his minor child, evidence held to warrant a conviction.
    Appeal from County Court,. Oklahoma County; Jas. C. Cheek, Judge.
    Leonard Rauen was convicted of willfully failing to support his minor child, and he appeals.
    Affirmed,.'

      Lewis R. Morris and David Tant, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that Leonard Rauen did willfully and without lawful excuse omit to furnish necessary food, clothing, and shelter for his minor child, Lawrence Rauen, age 20 months. On the trial the jury returned a verdict finding him guilty as charged in the information, and fixing his punishment at a fine of $100. From the judgment an appeal was taken by filing in this court on September 15, 1923, a petition in error with case-made.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed. In cases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information and the instructions of the court, and we have discovered no error which will warrant a reversal of the judgment.

The judgment of the county court of Oklahoma county is accordingly affirmed. Mandate forthwith.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


text:
    J. C. YAKUM v. STATE.
    No. A-4833.
    Opinion Filed April 16, 1925.
    Rehearing Denied April 27, 1925.
    (235 Pac. 253.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Possession — Evidence of General Reputation of Accused’s Home. Ordinarily, on a trial upon an information charging unlawful possession of intoxicating liquors, evidence of the 'general reputation of defendant’s home as a place where intoxicating liquors are kept for sale is incompetent and inadmissible.
    2. Same. Before evidence of the general reputation of a place may be received as evidence in a ease of unlawful possession of intoxicating liquors, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation.
    3. Same. Where evidence discloses the possession of intoxicating liquor at a place of public resort, where defendant is employed, the general reputation of such place as a place where intoxicating liquors are kept for sale is admissible on the question of criminal intent, where the offense charged is the. unlawful possession of intoxicating liquor, with intent to sell the same.
    Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    J. C. Yakum was convicted of unlawful possession of intoxicating liquor, and He appeals.
    Affirmed.
    W. L. Coffey, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted on a charge of unlawful possession of intoxicating liquors with intent to sell the same, and in accordance: with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. He appeals from the judgment. It is contended that the evidence is insufficient to sustain the verdict. Error is also assigned upon the ruling in the admission of evidence.

The evidence shows that the defendant was employed at the Country Club, located about a mile and a half south of the city of Sand Springs• that Irvwin Jeeter, deputy sheriff, and March Evans were passing in a car and saw the defendant about 50 yards southwest of the Country Club in a little canyon, and he picked up from behind a log a bottle of whisky and came towards the Country Club. The officers arrested him and found a half pint bottle of whisky in his pocket. March Evans testified that he saw the defendant leave the house and go out and get the liquor and put it in his pocket. Jeeter testified that there were two men there, apparently waiting for the defendant to bring the liquor. That he knew the general reputation of the Country Club as to being a place where intoxicating liquors were kept and sold, and that reputation was- bad.The defendant as a witness in his own behalf testified that he worked for Clarence Smith there] at the roadhouse at the time as a short order cook and making sandwiches; that he went out and got the whisky, and was going to take a drink of it when the officers arrested him; that he had only carried it about 30 or 40 yards.

On the undisputed facts the evidence is sufficient to sustain the verdict.

It is contended that the court erred in admitting the testimony for the state, because the arrest of the defendant was illegal, having been madei without a warrant, and the search and seizure was in violation of the constitutional provision forbidding unreasonable searches and seizures. We cannot agree with this contention. The evidence on the part of the state shows that the arrest was made for a public offense committed in the presence of the officers.

The statute provides:

“A peace officer may, without a warrant, arrest a person:
“First. For a public offense, committed or attempted in his presence.” Section 2471, C. S. 1921.

Under the statute the officers had the right to arrest the defendant, because he was committing an offense against the law in theiir presence when he picked up the bottle of whisky and carried it towards the house.

It is contended also that the court erred in admitting evidence of the general reputation of the Country Club where the defendant was employed as being a placq where intoxicating liquors are sold. The rule that evidence of the reputation of a place as being a place where intoxicating liquor is kept for sale may be established in a case where the defendant is charged with the unlawful possession of such liquors in such placq, if such place was one resorted to by the public for the purpose, is established in the former opinions of this court. Ward v. State, 15 Okla. Cr. 150, 175 P. 557. Otherwise stated the rule is that, before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession, it must be shown that the place itself was a place of public resort, not mqrely that it bore such reputation.

In the present case it was an undisputed fact that the roadhouse known as the Country Club, where the defendant was employed, was a place of public resort.

On the record before us we believe that the defendant received a fair trial.

The judgment of the-lower court is therefore affirmed.

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


text:
    BOB McDOWELL et al. v. STATE.
    No. A-4836.
    Opinion Filed Feb. 21, 1925.
    Rehearing Denied April 27, 1925.
    (234 Pac. 1109.)
    (Syllabus.)
    1. Trial — Special Prosecutor’s Right to Assist at Request of County Attorney. Without having any special employment by the injured party, a special prosecutor, with the consent or at the request of the county attorney, may assist in the prosecution of a criminal case, so long as the county attorney does not lose control of the ease.

      2. Appeal and Error — Error not Presumed. Error is not presumed, but must be made to affirmatively appear.
    3. Larceny — Evidence Sustaining Conviction of Grand Larceny. Ev.-dence examined, and found sufficient to sustain the verdict and judgment.
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    Bob McDowell and Bob Tibbs were convicted of grand larceny, and they appeal.
    Affirmed.
    J. H. Harper, for plaintiffs in error.
   EDWARDS, J.

Three assignments of error are argued for the reversal of this case. First, that the court permitted Guy Green to assist in the prosecution without his having been employed either by the injured party or by the county attorney; second, misconduct of the jury and special prosecutor, in that while the jury were viewing a truck, described in the evidence, and out of the presence of the plaintiffs in error, that the special prosecutor pointed out to them certain marks on the truck; third, that the evidence is insufficient to sustain the verdict and judgments.

The record discloses that Guy Green, a member of the Bar of Jefferson county, assisted the county attorney in the prosecution of this case, examined some of the witnesses, and was himself a witness as to certain facts within his knowledge. The county attorney was present at all times during the examination and examined some of the witnesses. It does not appear that the county attorney at any time lost control of the case, nor is that contention made. It is also assigned as error that the prosecuting witness, or the injured party, had not employed the special prosecutor, and that hq was not employed by the county attorney. This court has frequently held that attorneys may be employed to assist in a prosecution. Reed v. State, 2 Okla. Cr. 590, 103 P. 1042; Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, 33 L. R. A. (N. S,) 568, Ann. Cas. 1912D, 180.

There is no legal objection to such being done so long as the county attorney retains control of the case, and the assistant or special prosecutor performs the functions assigned him by the county attorney. Nor do we perceive any reason why an attorney might not volunteer his services ' to assist the county attorney, with the consent of the county attorney, or, without compensation, assist the county attorney at his request. That appears to be what was done in this case. There is no error in permitting an attorney to assist the county attorney under such circumstances.

When, in the course of a trial, the court deems it proper for the jury to view premises or other material facts connected with the case on trial, the court may order the jury to view the same, and thereupon they may go in charge of a sworn officer, under special form of oath, to point out the object or place to be viewed, and beyond that no communication to the jury is permitted. Section 2714, Compiled St. 1921.

The plaintiffs in error in this case requested that the jury view a truck in which it was the theory of the state that the property, which was the subject of the larceny, had been transported. This the jury did. It is claimed as error that during such view' the special prosecutor, Guy Green, pointed out to the jury certain marks on the truck in question, and two affidavits are attached to the motion for a new trial in support of this assignment. The state, in rebuttal, introduced the bailiff who had charge of the jury, four members of the panel who tried the cause, and Guy Green, thei special prosecutor, who all swore positively that nothing of the kind took place, and that Green was not at the truck at the time the jury viewed it. His evidence was that he was not there and went there only after the jury had left. The absence- of the other eight members of the panel was not explained.

We gather that what really occurred was that after the jury trying the case had left, pursuant to the directions of thei county attorney, Green went to the truck, and in the presence of some members of the jury panel, not in the trial of this case, and bystanders, examined the truck to ascertain if it was in the same condition as it was at the time of the larceny, and in making such examination pointed out to the bystanders the condition of the casings. The trial judge evidently must have taken this view in overruling the motion for a new trial.

If this court believed that any communication was made to the jury as claimed, or that any pointing out of the condition of the casings and truck was made to -the jury as contended by the plaintiffs in error, we would unhesitatingly reverse the case for that reason. Error is not presumed* but must be made to affirmatively appear by the plaintiffs in error.

It is earnestly urged that the evidence is insufficient to sustain the verdict. We have carefully examined’the record. The evidence is wholly circumstantial. It appears that on a Sunday night the prosecuting witness lost from his cotton field, 4y2 miles eiast of Waurika, between six and seven hundred pounds of seed cotton, worth about 6% cents per pound; that the cotton was carried from the field nearly a quarter of mile! to an unused section line where a truck stood, and that the truck had been driven a short distance from there, backed up and turned around, making a clear-cut track in a soft place in the road. Therei were tracks of two persons leading from the truck to the cotton and back to the truck. There were some peculiarities about the tracks both of the persons and of the truck. On the night in question the plaintiffs in error, without special permission, borrowed a truck of one Bowen, some miles east of Comanche, left about dark, went to Waurika,- and left Waurika about midnight and went to Burkburnett, Tex., arriving there some time in the night, and the next day returning to near Comanche, where they were arrested. There were some indications in the bed of the truck of cotton having been hauled in it. Plaintiffs in error had on their person $40 in money. The human tracks in the cotton field were carefully measured and corresponded in minute particulars with the tracks made by the shoes worn by the plaintiffs in error when arrested, and the tracks of the truck in minute particulars corresponded with the tracks made by the truck in which the cotton was apparently transported. The explanation of the plaintiffs in error was in some particulars contradictory. The evidence is not unusually strong, but we believe it was sufficient to go to the jury, and sufficient to sustain the verdict.

The judgment is affirmed.

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


text:
    M. L. LEARD v. STATE.
    No. A-4594.
    Opinion Filed Feb. 21, 1925.
    Rehearing Denied April 27, 1925.
    (235 Pac. 243.)
    (Syllabus.)
    1. Appeal and Error — Venue—Right to Change of Venue — Burden of Proof — Discretion of Court. The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and upon an application for change of venue from such county the burden is on the defendant seeking such change to establish his right thereto. The granting or refusal of a change of venue is largely in the discretion of the trial court, and the reversal of a case for failure to grant a change of venue will not be made, unless it is made to clearly appear that the trial court abused its discretion, to the prejudice of the applicant.
    2. Jury — Prospective Juror- not Disqualified Because of Opinion Formed from Newspaper Accounts or Current Rumor. The prospective juror is not disqualified by reason of having an opinion in a case formed from reading newspaper accounts or from current rumor, not obtained from personal knowledge of the facts, or from witnesses who purport to know the facts, when he testifies that he can and will, and the court finds that he would, if selected, render a fair and impartial verdict.
    3. Witnesses — Physician) Eramining Person at Direction of Prosecuting Attorney. A physician, who makes an examination of a person at the direction of a prosecuting attorney, if he does not assume to act as a physician for such person, and is not" called or employed as a physician by or for the person examined, is a competent witness to testify regarding the information gained in such examination.
    4. Appeal and Error — Harmless Error — Exclusion of Evidence. The exclusion of evidence will not constitute reversible error, where it reasonably appears that its admission would not have affected the verdict.
    5. Rape — Evidence Sustaining Conviction. Evidence examined, and found to sustain the verdict of the jury.
    Appeal from District Court, Okfuskee County; John L. Norman, Judge.
    M. L. Leard was convicted of rape in the first degree and sentenced to a term of 15 years in the state penitentiary, and he appeals.
    Affirmed.
    See, also, 24 Okla. Cr. 141, 216 P. 1118.
    Crump, White & Seawel, for plaintiff in error,.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst-Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error assigns several errors as reasons for reversing this case: First, that the court erred in overruling plaintiff in error’s application for a change of venue; second, that the court erred in overruling plaintiff in error’s challenge for cause to certain jurors; third, that the court erred in excluding competent evidence-offered on the part of plaintiff in error; fourth, that the evidence is insufficient to sustain the verdict.

On the application for change of venue, the plaintiff in error filed an affidavit, with four supporting affidavits, to the effect that the minds of the inhabitants of Okfuskee county were so prejudiced against him that he could not obtain a fair trial therein. In addition the sheriff of Okfus-kee county testified that there had been talk of mob violence. The county attorney made a counter showing. We have examined carefully the record on this point, and adhere to the rule, heretofore adopted by this court, that the granting or refusing of a change of venue is within the sound discretion of the trial court, and a case will not be reversed unless there is abuse of such discretion. Wa believe that there is no such showing of the inability of plaintiff in error to get a fair trial in Okfuskee county as would constitute an abuse of discretion. Starr v. State, 5 Okla. Cr. 440, 115 P. 356; Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Hopkins v. State, 4 Okla. Cr. 197, 108 P. 420, 111 P. 947; Black v. State, 3 Okla. Cr. 547, 107 P. 524; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L. R. A. (N. S.) 701; Bouie v. State, 9 Okla. Cr. 345, 131 P. 953; Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164.

The plaintiff in error contends that the court erred in overruling the challenge for cause to the jurors Eskridge, Catlett, Finney, Turner, and Board, and that they each disclosed on their voir dire examination that they had an opinion such as would disqualify them. The juror Esk-ridge testified that he had read something about the case, and had formed an opinion from so reading which would, take evidence to remove. He did not testify, however, that it was a fixed opinion, and on being further examined testified as follows:

“Q. Could you disregard that opinion, even though you have an opinion, Mr. Eskridge, and try the case according to the testimony you will hear in the progress of the trial without any reference to your opinion? A. I believe I could.
“Q. Can you and will you do it, if selected as a juror? A. Yqs. * * *
“Q. If selected as a juror in this case, will you go into the jury box and try the case under the instructions of the court, and take that as the law, and take the testimony of the witnesses introduced here as the evidence, and try the case fairly and impartially, both to the state and the defendant ? A. Yes, sir.”

The jurors Catlett, Finney, and Board testified in effect the same as the juror Eskridge. The juror Turner was objected to not because he had an opinion as to the guilt or innocence of the plaintiff in error, but because he stated in response to questions by counsel for plaintiff in error that, if the accused admitted having intercourse with prosecutrix, he would not feel that it was justifiable. But he did testify that, notwithstanding such might bei the case, he would not be prejudiced thereby, but would give the plaintiff in error a fair trial. We know of no rule that requires a juror to approve the moral code of a defendant in order to be qualified to serve in the trial of a case.

A juror is not disqualified by reason of having an opinion resulting from reading newspaper accounts of the crime charged, or from. current rumors, provided it appears to the court, upon the declaration of the juror, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly. The trial court, of course, is not limited to the answers made by the jurors on their voir dire, but should be satisfied, from such examination and from all the circumstances, that the juror is not prejudiced against the accused. The question of competency of a juror is addressed to the sound discretion of a trial court, and the court should be clearly satisfied that a juror is fair and impartial before permitting him to sit in a criminal case. On an appeal to this court, in order to warrant a reversal on this point, it must be made clearly to appear that the trial court abused its discretion. All the jurors complained of were excused by peremptory challenge), and it does not appear that any objectionable juror was on the trial panel. 'Section 2678, Comp. St. 1921; Johnson v. State, 1 Okla. Cr. 323, 97 P. 1059, 18 Ann. Cas. 300; Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Jones v. State, 8 Okla. Cr. 576, 129 P. 446; Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164, supra; Littrell v. State, 22 Okla. Cr. 1, 209 P. 184.

Some four days after the offense charged in the information, the county attorney had a physician, Dr. C. M. Bloss, make a physical examination of the prosecuting witness. The physician was not called as a witness by the state, but was offered as a witness for the plaintiff in error, and objection was made to his testimony as being privileged. Section 589, Compiled St. 1921, is as follows:

“The following persons shall be incompetent to testify: * * * Sixth. A physician or surgeon, concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient. * * *”

The plaintiff in error, however, contends that the relation of physician and patient did not obtain in this case, for the reason that it is shown that the county attorney was present at the examination, and the physician was called by the county attorney. We believe the contention is well taken that the witness was competent and should have been permitted to testify. In 28 R. C. L. 539, par 129, the general rule is laid down as follows: '

“It is well settled that, in order for privilege to exist in the case of a communication made to or by a physician or surgeon, relation of physician and patient must exist between the physician and the patient by or to whom the communication is made. Where there is no confidential relation, there is no privilege. The privilege extends only to information acquired during the continuation of the relation of physician and patient, and does not preclude a physician from testifying as to information respecting* a patient which he acquired either before the relation bec gan or after its termination. An objection to the testimony of physicians that it discloses a privileged communication cannot be sustained, when it relates to an examination made of a party, who did not make any communication to them nor submit to their examination with the idea that they weire acting as his physicians, and a physician employed by one whose negligence is alleged to have caused an accident, to be present at an operation upon the injured person, without the latter’s consent, is not incompetent to testify to what he observed therei. Furthermore, if the physician does not act in a professional capacity to treat, but for some independent purpose known to the person examined, no privilege ordinarily attaches. Thus a physician, who at the direction of a prosecuting attorney or a court makes an examination of a defendant for the purpose of determining his physical condition, is competent to testify regarding the information he gained, if he does not assume to act as the physician for the patient, or proffer to the latter his professional aid.”

Numerous authorities are cited in support of the text. Substantially the same rule is announced in 40 Cyc. 2382, subdivision (b). See, also, State v. Winnett, 48 Wash. 93, 92 P. 904; Clark v. State, 8 Kan. App. 782, 61 P. 814; Gleason v. Jones, 79 Okla. 191, 192 P. 203, 16 A. L. R. 450.

The evidence of Dr. Bloss was developed in the presence of the court, in the absence of the jury, and it is not, we think, very important. The witness was hesitating, uncertain, and with no distinct recollection of the matter. His testimony was merely to the effect that at thei time of his examination he did not see any wounds or bruises on the limbs of the prosecuting witness, and did not recall any evidence of recent intercourse. To our minds the evidence excluded, if admitted, would not have changed the result. 12 Cyc. 925, and authorities cited in note 85; Addington v. State, 8 Okla. Cr. 703, 130 P. 311.

Lastly, it is urged that the evidence is insufficient to sustain the verdict of the jury. The evidence, briefly summarized, discloses about this state of facts: The prosecuting witness was a young woman 20 years old at the time of the occurrence, weight about 90 pounds, and engaged in teaching a country school. The plaintiff in error was 44 or 45 years old, weight, according to his own evidence, 185 pounds, a married man, and was at the time a deputy sheriff. The school of prosecuting witness closed on May 11th, and the plaintiff in error took prosecutrix to his home, where he resided with his wife; there she spent the night, and the next day hei took her in a Ford car to Okemah. On the road from his home to Okemah he drove off the main highway and stopped the car. According to the state’s evidence, he then attempted to have the prosecutrix take a walk with him, and she refused. He then drove on to a secluded place, and, according to her evidence, lifted her out of the car and forcibly ravished her, and that she resisted to the utmost of her ability. He then took her on to Okemah. On the way they stopped at a schoolhouse, and got a drink of water, and from Okemah she rode out with a family a distance toward her home, and then walked the remainder of the distance. As soon as she reached home, she disclosed the matter to her mother. The details, of course, were testified to fully.

The plaintiff in error was arrested on the 16th, and on the road to town escaped from the officers and went to Mexico, and was finally arrested in Louisiana and brought back to this state. He testified in his own behalf, admitted the detour from the highway to thei secluded place, admitted the intercourse, but testified that it was with the consent of the prosecutrix, and explained his flight by saying that he feared mob violence. One witness who was called for the state testified that he was a deputy sheriff, and that, between the time of the occurrence and the arrest of the plaintiff in error, the plaintiff in error told him of an occurrence corresponding to and corroborating in many particulars the evidence of the prosecuting witness; but the conversation did not identify the transaction as having been with the prosecuting witness, but, from the details given, must have referred to it. Aside from that, there was no corroboration of the prosecutrix that the act was accomplished by force.

The charge is grave and the punishment severe), but the evidence is ample and bears on its face no inherent improbability. There is no motive for false accusation. The weight and credibility of thef evidence is for the jury, who saw and observed the witnesses. We are not at liberty to disturb the verdict on the ground of insufficiency of the evidence. The plaintiff in error was ably represented.

After carefully scrutinizing the whole record, we believe the case is free from prejudicial error, and it is therefore affirmed.

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


text:
    MRS. E. KIRK v. STATE.
    No. A-4988.
    Opinion Filed April 28, 1925.
    (235 Pac. 624.)
    (Syllabus.)
    1. Searches and Seizures — Affidavit for Search Warrant Insufficient if Madie on Information and Belief Alone. An affidavit, on' which probable cause for issuance of a search warrant is determined, is insufficient if made on information and belief alone.
    2. Evidence — Neither Liquor nor Evidence of Unlawful Possession Admissible if Obtained Under Unlawful Search Warrant. Where defendant is charged with unlawful possession of intoxicating liquor, if the liquor or evidence of defendant’s possession thereof has been secured under a search warrant issued without authority of law, neither the liquor so seized nor the evidence of the possession thereof, so acquired, is admissible against defendant in a prosecution for the alleged offense.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.

      Mrs. E. Kirk was convicted of unlawful possession of intoxicating liquor, and she appeals.
    Reversed and remanded, with direction.
    F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried upon an information charging her with ¡unlawful possession of intoxicating liquor. She was found guilty by the jury and sentenced to confinement in jail for 60 days and a fine of $300 and the costs. She has appealed from the judgment, and assigns as ejrror that the verdict is not sustained by sufficient evidence, and that the court erred in admitting incompetent evidence.

The evidence shows that U. S. Jennings and Nate Wolfe, deputy sheriffs, under authority of a search warrant visited the premises occupied by defendant in Hockerville and found a gallon jar partly filled with corn whisky.

As a witness in her own behalf, defendant testified that she was a married woman, age was 50 years, and was running a rooming house in Hockerville; that she did not havei any whisky there and did not know who owned the whisky found by the officers.

It is contended that all the evidence in the case was inadmissible on the ground that no probable cause was shown for the issuance of the search warrant, and the same was admitted over the objections of defendant.

The affidavit for the search warrant, omitting caption and indorsements, reads as follows:

“I, U. S. Jennings, do solemnly swear:
“That there is probable cause for believing that liquors are being manufactured, sold, bartered, given away and otherwise furnished in violation of law.
“That liquors are being kept for the purpose of selling, bartering, giving away and otherwise furnishing same in violation of law.
“And that said liquors are being kept by Mrs. Kirk at Hockerville, Okla., in Ottawa county, in violation of law.
“Wherefore, affiant asks that a search warrant issue for said property, and that said Mrs. Kirk be brought before the court, and dealt with according to law.
“U. S. Jennings.
“Subscribed and sworn to before mei this 18th day of September, 1923, Jeff Black, Justice of the Peace.”

The affidavit in the instant case merely states, “There is probable cause for believing.”

It is the well-settled rule in this state that the facts and circumstances which induce the complainant’s belief must be set forth, and those facts and circumstances must be sufficient to make it appear that there is probable cause for such belief and for making the search, and the magistrate must be satisfied and determine from the facts and circumstances set forth and sworn to that there is reasonable cause for such belief.

No such facts and circumstances are here set forth, and probable cause for issuance of the search warrant was not shown; evidence therefore secured by virtue of it was inadmissible. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Hannan v. State, 29 Okla. Cr. 203, 233 P. 251.

Eliminating this illegal evidence, we find there is not sufficient proof to sustain the verdict.

We need not discuss the other questions raised.

The judgment of conviction is reversed, and the cause remanded, with direction to discharge defendant.

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


text:
    W. J. KILLIAN v. STATE.
    No. A-4980.
    Opinion Filed April 28, 1925.
    (235 Pac. 625.)
    (Syllabus.)'
    1. Evidence — Neither Liquor nor Evidence of Possession, Obtained by Unlawful Search, Admissible. Where defendant is charged with unlawfully having intoxicating liquor in his possession, if the liquor or evidence of defendant’s possession was obtained by an unlawful search and seizure, neither the. liquor so secured, nor the evidence of possession, is admissible against him, in a prosecution for the alleged offense.
    2. Trial — Unnecessary Before Trial to Move to Reject Evidence Obtained by Unlawful Search. It is/ unnecessary for the defendant before trial to move the court to reject evidence obtained by means of an unlawful search or seizure, but objection is properly and seasonably made when that fact appears.
    3. Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Possessions Evidence examined, and held insufficient to sustain conviction for unlawful possession of intoxicating liquor.
    Appeal from County Court, Beckham County; Oscar Speed, Judge.
    ,W. J. Killian, convicted of illegal possession of intoxicating liquor, appeals.
    Reversed.
    D. W. Tracy, for plaintiff in error.
    Geiorge F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried upon an information charging that, in Beckham county, on July 6, 1923, he did have¡ possession of “about three pints of corn whisky in three pint bottles, with the unlawful intent then and there on the part of him, the said W. J. Killian, to violate the provisions of the prohibitory laws.” He was found guilty by the jury. The court sentenced the defendant to pay a fine of $100 and to be confined for 30 days in the county jail. From the judgment he appeals, and assigns as error that the verdict is not sustained by sufficient evidence, and that the court erred in admitting incompetent evidence.

George Scott, deputy sheriff, testified: That he went into the defendant’s rooming housei and found some men intoxicated, and he told the defendant it did not look good. Defendant said it was just roomers. Witness then went back to town and got a flash light, and returned with Mr. Al De Shane, and they searched the house. That witness saw the defendant run out the back door and ran after him, and defendant threw three bottles on the sidewalk. That he then arrested the defendant. That he smelled whisky. He was then asked by the county attorney : “Are you able to state what was in the bottles ?” and answered: . “No, sir.” Thereupon the| defendant moved to strike out the evidence of the witness based upon a search, or obtained thereby, which was overruled. Exception.

Cross-examination, he stated that he could not say where the odor of whisky came from, that he could not say whether it was beer, whisky, or alcohol, but that the smell was alcoholic.

Al De Shane testified that he assisted Mr. Scott in making the search, and that he found three or four empty bottles in the housei. In answer to questions by the court, he said that the defendant ran a meat market and rooming house in Sayre, and had some 20 or 30 cots in one room.

Motion was made to strike out the evidence concerning the bottles found about the house, which was overruled, exception. The state then rested, and the defendant moved for a directed verdict, on the ground that the evidence was insufficient to connect him with the alleged offense. Which was overruled.

As a witness in his own behalf, the defendant testified that when the officers came in to search his place he picked up the bottles and ran out and broke them; that he did not know what was in them, nor whose they were, but they were not his; that he thought if the officers found them there they would hold him responsible; that-he had never before been arrested.

The Attorney General insists that the defendant failed to make a timely objection to the introduction of such evidence secured under the unlawful search and seizure. In his objection to the testimony the defendant did not specifically state that the admission of this testimony violated any of his constitutional rights, but his exceptions were based upon the ground that the search was unlawful and the testimony incompetent. The statute provides:

“Where any party desires to object to any question put to a witness, either before! a court or tribunal or upon the taking of depositions upon notice, the ordinary objections of incompetency, irrelevancy or immateriality, shall be deemed to cover all matters ordinarily embraced within such objections and it shall not be necessary to specify further the grounds of such objections or to state the specific reasons whereby the question is so objectionable; but the court or opposing counsel may inquire of the objector wherein the question is so objectionable and the objector shall thereupon state specifically his reasons or grounds for such objections.” Section 609, C. S. 1921.

Under thei statute we think the objections made, when it appeared that the officers had raided the premises without a search warrant or other process, were sufficient to raisei the question. The question was also properly saved by the motion to strike out the testimony because illegally obtained, and by the motion for a directed verdict. It is true the better practice would be to abject to the introduction of the evidence when offered, on the'ground that the same was obtained in violation of the constitutional rights of thei defendant.

We are also of the opinion that, if the evidence was competent and admissible, it would be insufficient to show an intention to violate provisions of the prohibitory liquor laws as alleged in the information.

For the reasons stated, the judgment of conviction is reversed.

BE'SSEY, P. J., and EDWARDS, J., concur.


text:
    J. I. LOCHRAN v. STATE.
    No. A-4646.
    Opinion Filed April 30, 1925.
    (235 Pac. 556.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Transportation — Conviction Sustained. In a prosecution for unlawfully transporting intoxicating liquor, evidence held to sustain a conviction.
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    J. I. Lochran was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Hays Dillard, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted on a charge of unlawfully conveying intoxicating liquor, the jury leaving his punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court sentenced the defendant to be confined in the county jail for 30 days and to pay a fine of $50. He has appealed from the judgment, but no brief has been filed, and no appearance made on his behalf in this court.

Upon a careful examination of the record, we find that the evidence is sufficient to sustain the verdict, there is no prejudicial error in the rulings upon the admission of testimony, and the instructions fully stated the law applicable to the case.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    ALFRED MOORE v. STATE.
    No. A-4586.
    Opinion Filed Dec. 24, 1924.
    Rehearing Denied May 2, 1925.
    (237 Pac. 621.)
    Intoxicating liquors — Evidence Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence held to sustain a conviction.
    Appeal from District Court, Murray County; W. C. Long, Judge.
    Alfred Moore was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    H. W. Fielding, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Under an information charging that Alfred Moore and Pearl Clapp did have in their possession two bottles of whisky with intent to sell the same, appellant, Alfred Moore, on his separate trial was convicted, and in accordance with the verdict of the jury was sentenced to 30 days’ confinement in jail and to pay a fine of $150. To reverse the judgment he appeals. The assigned grounds of reversal are that the court erred in admitting incompetent and improper evidence and erred in its instructions to tha jury, and that the verdict is not supported by the evidence.

John Cornell testified that he and Ben Haney went down the alley back of appellant Moore’s meat market, and stopped; presently George Rennie came out of the back door with a bundle under his arm and when witness grabbed him he threw it against the wall and broke it; that the neck of the bottle and the paper contained whisky which the officers both tasted. Then they went inside and told appellant that they caught Rennie coming out with a bottle of whisky and would like to search the place. Appellant told them to help thejmselves. That after he went in he turned and saw Ben Hjaney and Pearl Clapp, an employee, in the door way scuffling over a bottle.

Ben Haney testified in substance to the same facts as did the witness Cornell. He further testified “we talked there a minute to Mr. Reinnie and then went on in. Mr.' Moore was skinning a beef; Mr. Cornell started up to the front. Pearl Clapp went around the refrigerator or ice box and I saw him grab something and I ran after him and caught him right in the door and tried to get the package from him. He was trying to break it and finally did break it; it was a bottle of whisky.”

George Reinnie testified that he went in the front door of the butcher shop and asked if they had any junk and some one said, “You might look around”; that he picked a bottle up on a table back by the ice box, and started out thei back door and Cornell and Haney stopped him and he threw the bottle against the wall.

C. H. Parks, sheriff!, testified that he knew the reputation of Alfred Moore’s place of business as bejng a place where whisky could be obtained, and people generally said liquor was being sold there.

On thei part of the defense, Pearl Clapp testified that he was an employee of Alfred Moore; that Shorty Beaver and Jim Slover had been drinking and had a bottle of whisky in the back end, that when thq officers came in he saw a package lying on the box and grabbed it and ran to tlje back door and broke it.

As a witness in his own behalf the defendant testified that he did not see George Rennie come in or go out of his place; that he was checking up the cash register when the officers came in and wanted to search the place, and he told them, to go ahead, that he did not keep or sell liquor there; that he had four of five employees and sometimes the men would go back to the rear of the store and drink when he did not know about it. He admitted, however, that prior to 1915 he paid a revenue license, and was in the whisky business pretty strong.

Counsel for appellant in his brief says that he was not connected with the case on its trial; that on his examination of thei case-made he finds that testimony was admitted which he thinks was clearly incompetent, but which does not appear to have been objected to or exceptions reserved.

An examination of the record shows no objection was made or exceptions taken to the rulings of the court on the admission of evidence. It follows that there is nothing in this court to review. N|o objection was made or exception taken to the instructions given by the court, and we find no fundamental error in the same.

The testimony on the part of the state was amply sufficient to sustain the verdict. The judgment is therefore affirmed.

MATSON, P. J., and BESSEY, J,, concur.


author: BESSEY, P. J.

text:
    J. J. McADAMS v. STATE.
    No. A-4601.
    Opinion Filed Feb. 10, 1925.
    Rehearing Denied May 2, 1925.
    (235 Pac. 241.)
    (Syllabus.)
    Arrest — Arrest Without Warrant Held Lawful — As Incident to 1. Lawful Arrest for Transporting Liquor, Person and Auto of Offender Searchable Without Warrant. Where peace officers, without a warrant, on suspicion merely, illegally attempted to arrest a person suspected of the commission of a misdemeanor (transporting whisky), and as a sequence to such attempted arrest the offense is actually committed in the presence of and to the certain knowledge of the officers, the offender, under the circumstances set out in the text, may be legally arrested without warrant for the offense so committed in the officers’ presence.
    (a) As an incident to such legal arrest the person and automobile of the offender may without a warrant be searched for contraband goods.
    2. Continuance — That Accused and Nonresident Counsel Did not Know of Setting of Cases Insufficient Ground. There is no adequate showing made that the court abused his discretion in not ordering a continuance of the. trial.
    Appeal from County Court, Stephens County,- Eugene Rice, Judge.
    J. J. McAdams was convicted of illegal transportation of intoxicating liquor, and he appeals..
    Modified, and, as so modified, affirmed.
    H. M. Carr and Wilkinson & Seay, for plaintiff in error.
    The Attorney General and Leion S. Hirsh, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, J. J. McAdams, defendant in the trial court, was convicted in the county court of Stephens county of the illegal transportation of a quantity of whisky, with his punishment fixed by the court at a fine of $200 and costs, and confinement in the county jail for a period of 60 days.

The defendant was the owner of a new Cadillac automobile, of the value of $4,100. On the night of October 12, 1922, the defendant and two companions, a woman and another man, drove in this car from Duncan to Comanche. The three occupants of the car were sitting in the front seat of the car, on the return drive, at about 10: 30 p. m., when three peace officers in a Ford car followed and overtook this Cadillac car at a point not far from Duncan. For the purpose of halting the car to search it for whisky these officers say that they shouted to the driver, the defendant, to stop. The two officers who testified at the trial say that the driver paid no heed to their commands; the defendant and his two companions testified that they heard no shouts or commands. The officers then shot into the car, shattering the rear glass window and puncturing the gas tank. The Cadillac car then stopped, and the occupants got out, and were placed under arrest. The defendant and his companions claim that their first intimation of their attempted arrest was when the shooting began. Two of these officers testified that after the first command to stop was disregarded they saw several packages thrown from the Cadillac car to the roadside.. At the time of the trial only two of the three officers who made this arrest were available as witnesses; the third appearing to have been a fugitive from justice on some criminal charge.

After the car stopped and the defendant and his companions alighted and were placed under arrest, the car was searched, and two empty whisky bottles were found in one of the side pockets. One of the officers remained with the persons under arrest, while the other two went back past the Ford car to search for the packages they say they saw thrown from the Cadillac car. Presently they returned with a half-gallon jar of corn whisky. The defendant and his companions were then taken to Duncan and lodged in jail, and the officers returned and took charge of the Cadillac car. Upon making further search along the roadside they found two more half-gallon jars of whisky near where they had found the first one at the time of the arrest.

Thei three persons arrested all testified that they were sitting together in the front seat of the Cadillac. The witnesses all agree that the two cars were driving over a rough, dusty road, at a speed of about 20 miles an hour. The defendant and his companions testified that they had no whisky with them and threw none away. The two companions of the defendant werei released from custody the day following their arrest, and the defendant alone was prosecuted, and his car was confiscated under condemnation proceedings.

The theory of the defense was that the whisky procured by the officers as evidence was “planted” in or near the Ford car by the officers making the arrest, for the purpose of laying a foundation for the confiscation of the Cadillac car. The character of the defendant and his witnesses, the two companions with him, was not assailed nor impeached.

The state admits that the attempted arrest at its inception was illegal, but insists that after the officers saw these packages of liquor thrown from the car the actual arrest was consummated legally, though without a warrant, for the reason that it was for an offense perpetrated in the presence of the officers.

If the theory of the defense be true, the officers committed a most reprehensible outrage upon the defendant; if the state’s theory is correct, the defendant is guilty, and should suffer proper punishment. There was evidence tending to support both theories; and this court could not, if it so desired, substitute its opinion for the verdict of the jury on the weight of the conflicting testimony. Under such circumstances the findings of the jury on the facts cannot be disturbed.

An arrest has been defined as the taking, seizing, or detaining of the person of another, either by touching him or putting hands on him, or by an act indicating an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest.

In this case, at the outset the defendant was merely suspected of having committed or being in the act of committing a misdemeanor, and the attempt to arrest the defendant on suspicion, without a warrant, was illegal. This court does not approve nor wish to seem to encourage peace officers in illegal practices, but here, after the initial illegal attempt to arrest proved futile, and the officers, as found by the jury, saw the defendant in act of violating the law, ■they then acquired the right to make the arrest without a warrant. Under the circumstances here the legal and the illegal acts of the officers are separable, and it becomes the duty of this court to sustain the legal portion of the transaction, including the search and seizure incident to the legal arrest. A different question would arise if the evidence conclusively showed that the arrest was for a misdemeanor on suspicion merely and without a warrant, and therefore illegal; under those circumstances the things seized, incident to such illegal arrest, would not be admissible in evidence if timely objections were made thereto.

It has been held that, where inmates of a house were suspected of being engaged in lascivious conduct, under statutory authority to arrest for a misdemeanor without warrant only when it is committed or attempted in the presence of the officer, an officer cannot without warrant, in the absence of breach of the peace, enter a dwelling upon the mere suspicion or belief that a misdemeanor is being committed therein for the purpose of viewing the inmates, and then arrest on the theory that the act is in his presence. Adair v. Williams, 24 Ariz. 422, 210 P. 853, 26 A. L. R. 278, and annotations.

Now, suppose that the officers, after an illegal attempt to search such a house, should retreat to some point from where they could see, through an open window, the inmates in lewd conduct, might they not then return and legally make an arrest for an offense committed in their presence, notwithstanding the initial attempt to arrest was illegal? Reason would indicate that this might be done, although no cases are cited, nor have we been able to find any, on that point.

If the actual arrest in this case was lawful, and we hold that under the findings of the jury it was, the officers had a right, as an incident to that arrest, to search the Cadillac car for evidence of whisky, as was done. State v. Turner (Mo. Sup.) 259 S. W. 427.

Defendant claims that the trial court erred in refusing to grant a continuance. The record proper does not bear out this contention. At the time of trial no application for á continuance was made, and the defendant announced ready for trial. In this connection the defendant claims that some time prior to the trial he had employed an out of town attorney to represent him, and that neither he nor his attorney knew that the casei had been set fot trial on December 6th until it was called on that date. It is the duty of defendants and their attorneys to keep themselves informed of the setting of cases for trial. While it is a courtesy often extended and approved by the courts for the court or some officer of the court to notify nonresident attorneys of the setting of their cases, they are under no legal obligation to do so.

The fact that there is some evidence tending to support the defendant’s theory that this prosecution may have been inspired by motives of cupidity on the part of the officers, in that they might have been interested in having this valuable car seized and confiscated, and the fact that the loss of this car to the defendant could properly be considered in mitigation of punishment, leads us to the conclusion that the court abused his discretion in assessing the severe punishment he did in this case.

The judgment of the trial court is therefore modified to a fine of $50 and costs, and confinement in the county jail for a period of 30 days, and the judgment as so modified is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    BILL GREEN v. STATE.
    No. A-4640.
    Opinion Filed Dec. 1, 1924.
    Rehearing Denied May 2, 1925.
    (234 Pac. 1111.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Possession. In a prosecution for possession of intoxicating liquor with the unlawful intent to sell the same, evidence held to sustain a conviction.
    Appeal from County Court, Stephens County; Eugene Rice, Judge-
    Bill Green was convicted of the unlawful possession, with intent to unlawfully sell, of whisky, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Bill Green, was convicted on a charge that he did have in his possession four gallons of whisky with the unlawful intent to sell the sanie, the jury leaving his punishment to the court. On February 12, 1923, the court rendered judgment and sentenced the defendant to be confined in the county jail for 60 days, and to pay a fine of $250. From the judgment an appeal was taken, by filing in this court, on April 11, 1923, a petition in error wih case-made. The errors assigned question the sufficiency of the evidence.

The evidence shows that three officers, in executing a search warrant, went to the home of Bill 'Green, five miles from the town of Duncan; that, after watching the place for some little time and seeing three cars leave the place, one of the officers stopped the last car leaving, and the other two approached the house; that Officer Ray went to the front door, and Officer Willis went to the back door, but could not get in, so he went to the window and saw the defendant going through the other room with two half-gallon fruit jars and a three-gallon jug; that the defendant emptied the fruit jars into the sink and started emptying the jug.

Officer Ray testified that when he knocked on the door the defendant came to the door, and, upon seeing him, shut the door in his face; that, upon hearing Officer Willis holler, he went around the house to the window where he could see the defendant pouring something out of a jug; that they forced the latch off the screen, and when they got in the defendant was still pouring the whisky out of the jug; that it was corn whisky; that the fruit jars still contained a little corn whisky, and the jug still contained nearly a gallon of com whisky. At the' close of the state’s evidence, the defendant moved for an acquittal in the form of a fiemurrer to the evidence, which was overruled, and exceptions allowed.

As a witness in his own behalf, the defendant testified that just before the officers came a man called “Shorty,” who lives about Marlow, came to his house in a car and delivered to him a gallon of whisky; that he had bought it from him at Marlow that afternoon, paying him $10 for it; that he poured all the whisky into two half-gallon fruit jars to measure it, and then poured it back into the jug; that about that time he heard some one knock at the front door; that he went to the door and it was Carl Ray, and Ray said, “Uncle Bill, I have got a search warrant to search your house,” and witness said, “All right,” and walked back and picked up the jug and poured the whisky into the sink; that the officers ran in after he had poured it out and turned the water on, and he said to them, “You didn’t get me did you?” that he did not think there was any whisky in the jug when they took it away. The defendant further testified that he did not intend to sell any of this whisky; that he got it for his own use.

Counsel argue that the evidence is insufficient to show unlawful intent, in that there is no evidence to show that the defendant intended to sell the whisky, and the only basis for the verdict would be that he had more than one gallon. Therefore a prima facie case to violate the law was not madei. We deem it sufficient to say that the evidence for the state tended to show that he had three or four gallons, and the court properly instructed the jury on this issue.

Error is assigned because the court permitted counsel for the state to make an alleged improper statement in his closing argument, which statement is as follows;

“It has always been my experience, gentlemen of the jury, and that has'been very little, but, whenever an officer arms himself with a search warrant to search some man’s place of business or some man’s home, he has some lead or other, or he has some reason to believe, before ha makés an affidavit before a justice of the peace, that ha is going to find liquor, or he never would get the search warrant.”

This statement was objected to by the defendant’s counsel, and at the same time they asked the jury to be instructed not to consider it.

Counsel contend that the statement constituted prejudicial error, because the only evidence of a search warrant was that the witness Willis stated they had a search warrant. The record contains the arguments of counsel. It seems the statement was in answer to the argument made, based on the defendant’s testimony that he only had one gallon of whisky; that he had measured it by pouring it out of the jug into the half-gallon fruit jars to see whether or not he had received full measure.

Obviously the jury did not believe the defendant’s story. Upon the facts in evidence and in answer to the argument of counsel for the defendant, we do not think the statement exceeded the limits of fair discussion, and it does not appear that the statement could have prejudiced the defendant’s case.

Where the evidence is conflicting, the credibility of the witnesses and the weight to be given their testimony is a matter for the jury to determine.

Finding no error in the record which, in our opinion, demands or would justify this court in setting aside this conviction, the judgment of the lower court is affirmed.

MATSON, P. J., and BESSEY, J., concur.