author: PER OURIAM.

text:
    In re BEN PARKS.
    No. A-5680.
    Opinion Filed July 7, 1925.
    (237 Pac. 1117.)
    McCaffrey & Smith, for petitioner.
    Geo. F. Short, Atty. Gen., and Edwin L. Dabney, Asst. Atty. Gen., for the State.
   PER OURIAM.

The petitioner has applied for a writ of habeas corpus to be admitted to bail, pending further proceedings in the district court of Washita county, on a charge of robbery with firearms. Upon hearing and consideration of the petition and evidence adduced in support thereof, this court finds that the petitioner should be admitted to bail. It is therefore ordered that bail be allowed in the sum of $20,000, conditioned as provided by law, in conformity with the formal order this day issued.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte DELTON HUMPHRIES.
    No. A-5679.
    Opinion Filed July 7, 1925.
    (237 Pac. 621.)
    Joe Bailey Allen, for petitioner.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State and respondent Waters.
   PER CURIAM.

Upon presentation and hearing of this petition for writ of habeas corpus of Delton Hum-phries, the proof shows that the petitioner is now and for some months past has been incarcerated in the state penitentiary at Granite by authority of a conviction for burglary, judgment upon which was rendered in the district court of Murray county; that at the time of the rendition of judgment the petitioner was under the age of 16 years, and that no investigation was had in the juvenile court as is in such cases by law provided.

In the case of Ex parte Pyzer, 29 Okla. Cr. 156, 232 P. 962, this court held:

“If the record in a felony case in the district (or superior) court fails to affirmatively disclose that an issue of fact was tried and determined, finding that the offender was over the age of 16 years, that issue remains open for this court to determine in a habeas corpus proceeding.
“A child under the age of 16 years cannot be guilty of the commission of a crime except in cases where it is shown by the findings of a juvenile court that the child knew the wrongfulness of the act charged.”

The reasons and authorities for such conclusions are set out in the Pyzer Case.

The prayer of the petitioner is therefore granted, and the petitioner is ordered released from the custody of the warden, or superintendent of the state reformatory at Granite, upon delivery to him of an attested copy of this opinion.


text:
    ARTHUR BABB v. STATE.
    No. A-4899.
    Opinion Filed July 11, 1925.
    (237 Pac. 1117.)

      See, also, 24 Okla. Cr. 302, 217 P. 1054.
    H. J. Sturgis, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from a judgment of the county court of Garfield county, wherein Arthur Babb was convicted of manufacturing whisky and sentenced to confinement in the county jail for a period of 90 days and to pay a fine of $250. Although the time has long since passed wherein to file briefs in support of this appeal, no briefs have been filed, and the cause has been ordered submitted on the record. An examination of the record discloses that the evidence supports the verdict, that the instructions of the court were fair, and that in all other respects the plaintiff in error was afforded a fair and impartial trial. It is therefore ordered that the judgment of the trial court be and the same is affirmed.


author: BESSEY, P. J.

text:
    LUCY SHIRLEY v. STATE.
    No. A-4861.
    Opinion Filed July 11, 1925.
    (237 Pac. 627.)

      Morris & Tant, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Lucy Shirley, plaintiff in error, here referred to as the defendant, was convicted in the county court of Oklahoma county of the illegal transportation of whisky, with her punishment fixed by the jury at confinement in the county jail for a period of 90 days, and to pay a fine of $200.

In this appeal the defendant claims that the evidence is insufficient to support the verdict, and also urges a claim of former jeopardy.

The evidence on the part of the state indicates that the defendant was apprehended by peace officers in the act of conveying whisky from some point unknown to a point in a public alley at the rear of her rooming house at 525 West California street, in Oklahoma City. She was there seen driving her car, with two men occupying the front seat with her, and when she was apprehended a glass vessel containing whisky was thrown from the car and broken. A quart of whisky was also taken from the seat of the automobile.

The defendant denied all knowledge of the presence of the whisky in the car before it was discovered by the officers, intimating that it belonged to one or the other of the men with her.

The evidence being conflicting, the weight of the evidence and the credibility of the witnesses were for the jury, and, under the circumstances shown, the finding of the jury upon these points will not be disturbed by this court.

Under the holdings of this court in Thomas v. State, 27 Okla. Cr. 264, 226 P. 600, the distance which liquor is conveyed over a public highway, street, or alley is immaterial. The facts in this case show that there was a conveyance for a short distance, and that probably the only reason that it was not carried a further distance was that the parties were intercepted before leaving the alley.

The claim of former jeapardy was not properly raised in the trial court, nor in this court on appeal. The evidence shows that this defendant and one of the men with her had been convicted of the illegal possession of intoxicating liquor in the United States District Court at Guthrie, but whether the conviction at Guthrie was for the possession of the particular whisky here in controversy does not appear. And if we were to concede that both convictions pertained to the same whisky, the offenses would still be separate and distinct, because the conviction here is for illegal transportation, while the conviction in the federal court seems to have been for illegal possession. No record of the conviction at Guthrie appears in the record of this case.

Finding no material error in the record, the judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    LEO KINNEY v. STATE.
    No. 4889.
    Opinion Filed July 11, 1925.
    (237 Pac. 626.)

      Paul J. McCarthy and Morris & Tant, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant, as in the court below.

The defendant was convicted in the county court of Oklahoma county, on a charge of having possession of whisky with intent to sell, and appeals. Only two assignments of error are argued in the briefs. First: That the court admitted in evidence whisky that was unlawfully taken without a search warrant; second, the insufficiency of the evidence. The evidence discloses that the defendant roomed at a house on west Sixth street, and at the time of the offense charged officers went to . the place, found the defendant and several other persons drinking whisky out of a fruit jar, and about the premises found a number of bottles, several jugs smelling of whisky, and one jug containing about four gallons of corn whisky.

This was in a room adjacent to the room in which the drinking was being done. The evidence of the officers is that they brought the jug containing the whisky in to the ■defendant, asked him if it belonged to him, and he said that it was his. The evidence as to the contents of the jug was undisputed, and was fully developed on cross-examination, as well as on direct examination; the defendant himself testifying that it was whisky, but denied that he said it belonged to him, and denied that it was in his possession. He admitted having pleaded guilty to a violation of the liquor law, and to having been twice convicted before that time. The evidence is ample to sustain the verdict.

After the evidence had been fully developed, the state offered in evidence the jug of whisky referred to as Exhibit A. Whereupon the' defendant made the following objection, which was overruled:

“We object to this introduction for the reason that it has not been properly identified, and, further, that they had no proper search warrant at the time they visited the place.”

This is the only objection made touching this question. At the close of the testimony, the sufficiency of the evidence was not challenged, nor motion made to strike out or to direct a verdict, nor mentioned in the motion for a new trial. The contents of the jug not being questioned, and the admission of the whisky in evidence in no wise necessary to the state’s case, its admission is not reversible. At the most it was merely cumulative to the undisputed evidence in the case. An objection that evidence is procured by an unlawful search may be raised at any time during the trial, or at the conclusion of the trial by proper motion. But, where the facts are admitted and developed by the defendant on cross-examination as in this case, the erroneous admission in evidence, of evidence procured without a search warrant, will not be necessarily reversible. So if the objection as made be held sufficient to question the invasion of the constitutional rights of the defendant by the introduction of evidence taken without a search warrant, the error in admitting it is harmless.

The case is affirmed.

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


text:
    WALTER LEYERLE v. STATE.
    No. 4795.
    Opinion Filed July 11, 1925.
    (237 Pac. 871.)

      H. M. Carr and Carl Henderson, for plaintiff in error.
    George F. Short, Atty Gen., and Charles Hill Johns, Asst. Atty Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant, as in the court, below.

The defendant was informed against in the district court'of Garvin- county for grand larceny. He was an employee in the freight house of the Santa Fe Railway Company at Pauls Valley, and Jep Clemons was an employee who worked under him. Property shipped on the Santa Fe Railroad and passing through the freight house at Pauls Valley was broken into and considerable stolen. Under a 'search warrant, the premises of the defendant and Jep Clemons were searched and a large quantity of stolen property recovered. The information charged the defendant with theft of six Royal wagon covers and one Royal wall tent of the value of $73.02. Clemons pleaded guilty, was sent to the penitentiary, and on the triál of the' defendant was brought back and testified for the state. The defendant did not take the stand. In the trial of the case, many exceptions were taken by counsel and numerous assignments made in the petition in error. Summarized, the contentions made are as follows: First, error of the court in permitting the state to amend the information after the trial had begun-; second, variance between the information and the proof; third, error of the court in admitting incompetent and prejudicial evidence; fourth, errors of law occurring at the trial; fifth, error in the court’s instructions. These assignments will be considered in the order presented.

The first assignment referred to an amendment of the information in the matter of date. The information was filed in March, 1922, and alleged that the crime was committed on the- day of June, 1922. After the jury was impaneled, the county attorney proceeded to read the information and to make an opening statement, and on reading the information informed thé court that there was a typographical error in charging “1922” instead of “1921,” and asked leave to correct the date from 1922-to 1921, which was permitted. An information may be amended in matter of substance at any time before plea, or in matter of form at any time when such can be done without prejudice to the rights of the accused. Section 2512, Comp. St. 1921; Lancaster v. State, 2 Okla. Cr. 681, 103 P. 1065; Rollen v. State, 7 Okla. Cr. 673, 125 P. 1087; Hogue v. State, 9 Okla. Cr. 521, 132 P. 511; Elkins v. State, 29 Okla. Cr. 175, 233. P. 491.

The complaint is made' a part of the record and charges the offense to have been in June, 1920. A preliminary was had on such complaint, and defendant was held by the justice of the peace for the offense charged in the complaint. The proof fixed the commission of the offense in June, 1920. So the date being obviously a mere clerical error its correction was a matter of form, and could not have been prejudicial to the defendant.

The second assignment, argued variance between the allegation and proof, is based on the matter of ownership of the property which was the subject of the larceny. The information alleges that the property was in the possession of the Gulf, Colorado & Santa Fe Kailway Company, a corporation, and owned and possessed by said company and Joe J. Swann. It is contended that the proof shows that the goods were delivered by the Atchison, Topeka & Santa Fe Eailway Company, and that they were shipped to Swann Bros., which had been composed of Joe J. Swann and S. E. Swann; that S. E. Swann had died some 21/2 years before, and that he left a widow and child who owned a part interest in the business.

We gather from the record and the admissions in the briefs that the main line of the Santa Fe Railroad is the property of the Atchison, Topeka & Santa Fe Railway Company from the north line of the state to Purcell, and from Purcell south it is owned by the Gulf, Colorado & Santa Fe Railway Company. The Atchison, Topeka & Santa Fe Railway Company also has a line from Lindsay through Pauls Valley to Shawnee and north. Shipments coming in from the north, therefore, come over the Atchi-son, Topeka & Santa Fe to Purcell, and continue on the Gulf, Colorado & Santa Fe to Pauls Valley. Merchandise shipped to Maysville is then on the 'Gulf, Colorado & Santa Fe from Purcell until it is redelivered to the Atchison, Topeka & Santa Fe at Pauls Valley for transportation to Maysville. Joe J. Swann, being the surviving member of Swann Bros, and conducting the business, was in legal effect the owner of the business and the possession was in him and the railroad company. In view of section 2560, Comp. St. 1921, an erroneous allegation of the person injured is not material:

Section 2560. “When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” Gunter v. State, 16 Okla. Cr. 476, 185 P. 797.

If the allegation of ownership of stolen property is a material allegation to be proven as charged, such allegation is supported by proof of any legal interest or special ownership less than absolute title. 36 Corpus Juris, § 404; Little v. State, 21 Okla. Cr. 1, 204 P. 305; Carson v. State, 30 Okla. Cr. 438, 236 P. 627.

Complaint is made that the court admitted immaterial and incompetent evidence on the part of the state which was prejudicial to the defendant. This was evidence of the loss of other property from the freighthouse and the’ admission in evidence of other stolen property found in. the possession of Jep Clemons, and which he admitted was. stolen. In this connection it might be well to say that Clemons testified that some two years prior to the occasion in question the defendant had proposed to him that they steal property passing through the freight house, and that arrangements were entered into for that purpose, and pursuant to that arrangement he and the defendant did at various times steal property out of the freight house, and that the property offered in evidence, against which complaint is made, was so stolen. It is settled law, of course, that evidence of different offenses, or offenses of an accomplice with which the defendant was not connected, cannot be used against him, unless the other offense is a part, of the transaction on which the prosecution is based, or sheds light upon the intention of the defendant in the commission of the crime for which he is on trial, or shows, motive, or scheme of criminal action. It is upon the latter exception, scheme of criminal action, that the state contends the evidence is admissible. Here merchandise was stolen from the freight house in which the defendant was employed. A part of this merchandise was found in the possession of the defendant and a part in the possession of his accomplice. The accomplice testified that it was stolen pursuant to an arrangement between him and the defendant. The evidence therefore tended to show that the defendant had formed a common design with Clemons to commit larcenies from the freight house. In proving the particular larceny charged, the evidence was material and competent as showing motive and plan or scheme of criminal action. Beberstein v. Territory, 8 Okla. Cr. 467, 58 P. 641; Hampton v. State, 7 Okla. Cr. 291, 123 P. 571, 40 L. R. A. (N. S.) 43; Carter v. State, 6 Okla. Cr, 232, 118 P. 264; Brown v. State, 9 Okla. Cr. 382, 132 P. 359.

Upon the fourth assignment, that of errors of law occurring at the trial, it is urged that the trial court, at the close of the state’s evidence, did not give sufficient time to the defendant to begin presenting his evidence. The record shows that, after the state rested, the defendant called several witnesses, and then counsel for defendant suggested that it was noon and that the court should take a recess. The court at that time denied' the request, stated that the trial had been unduly prolonged, one of the jurors .was ill, and that' he desired that the case close as soon as possible, but informed counsel that he would be given ample time to examine his witnesses. . Thereafter an adjournment for lunch was had, and the defendant was permitted to use alb the evidence offered. The conduct of the trial, and the recesses of the court, are in the sound discretion of the trial judge, and unless there appeared some action which was prejudicial, the action of the court in this particular would not constitute any ground for complaint.

Complaint is also made of a remark made by the court in the presence of the jury, while the defendant was waiting to procure some of his witnesses, that could be considered to be prejudicial to the defendant. A search of the record does not disclose such remark, and if made it might be considered a mere pleasantry, having no reference to the case. If the remark was made, and considered prejudicial, the defendant should have made a request that the same be taken by the reporter, and if not taken proof thereof by affidavit made, as provided by statute. Certainly, this court cannot consider an argument made in a brief upon a point where the record is absolutely silent.

Lastly, it is contended that the court erred in failing to give certain requested instructions. These requests go to the matter of ownership and possesssion of the property which was the subject of the larceny and the admission of evidence tending to show other larcenies. They carry out the theofy of the defendant that there was a variance between the allegation in the information as to ownership and possession and the proof, but for the reasons given •in the former part of this opinion, the refusal of these requests was not error.

We have examined all the arguments made, and find no reversible error. The case is affirmed.

BESSEY, P. J., and BOYLE, J., concur.


text:
    J. M. NELMS et al. v. STATE.
    No. 4791.
    Opinion Filed July 11, 1925.
    (237 Pac. 870.)
    R. L. Lawrence and John F. Thomas, for plaintiffs in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error will be referred to as defendants, as in the court below.

. The defendants were informed against in the county court of Caddo county for the crime of attempted extortion under section 2134, Comp. St. 1921, which offense, under section 2139, Comp. St. 1921, is made a misdemeanor.

The case has not been briefed either by defendants or the state. We have nevertheless examined the record, which discloses the theory of the state to be that the defendants conspired and acted together to procure one J. W. Marshall to pay them $1,000, under a threat to arrest and prosecute him for the illegal possession of narcotics. The evidence shows that the defendant Lois Pittman had been intimate with Marshall, who was an old man possessed of some means, and living on a farm near Cement. She went to the premises of Marshall and apparently spent the night at his barn or barnyard. The defendant Nelms was an acquaintance of the defendant Pittman, and was her bondsman in a case pending in Pittsburg county. He appeared at the Marshall home the next morning, saw Marshall, and inquired about the defendant Pittman. While there is considerable conflict in the testimony at this point, it appears that he, under the direction of the defendant Pittman, found two small paper sacks of white powder concealed near the barn, and designated by the parties as “dope,” and in the conversation the evidence of the state is that, if Marshall would pay them $1,000, the defendant Pittman would take the blame for the possession of the “dope,” and Marshall would not be molested. The defendants and Marshall then went to Cement, where Marshall attempted to procure the $1,000, but failed, and the defendants were then apprehended through the intervention of a son-in-law of Marshall, from whom he had attempted to procure the $1,000.

The evidence fairly supports the theory of the state, and from it the jury were fully warranted in finding the guilt of the defendants as charged. There are no exceptions to the instructions, very few objections were taken in the course of the trial, and we perceive nothing in the record that would warrant a reversal.

The case is affirmed.

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


text:
    MATT COLLINS v. STATE.
    No. A-4865.
    Opinion Filed July 11, 1925.
    (237 Pac. 865.)
    P. A. Gavin, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

By a majority verdict of a jury, Matt Collins, here designated the defendant, was found guilty of the illegal transportation of one-half gallon of whisky. • The court fixed his punishment at confinement in the county jail for a period of four months and a fine of $250.

The defendant, accompanied by his wife, was apprehended and arrested on the streets of Muskogee for speeding. The officers who made the arrest claimed that when they first saw the defendant he was driving his automobile, a one-seated roadster, at an unlawful and excessive rate of speed. The officers gave chase and overtook the defendant after he had driven approximately 20 blocks from where he was first seen. At the sound of the police whistle the defendant retarded the speed of his car, stopped and stepped out of the car, at Fifth and Fondulac streets, to await the orders of the officers. The door of the defendant’s car stood ajar, and the officer who was driving the pursuing car says that from where he sat in the police car he saw fragments of a “brown glass earthenware jar” on the floor of the car, and that he detected the odor of whisky. The other officer says that he smelled whisky as they passed Altamont street.

The defendant, corroborated in part by one of the officers, says that he had had two jars of buttermilk, which he had procured for his use; that one of them broke, and the contents spilled on the floor of the car, and that some of the contents of the other jar had slopped over.

The evidence on the part of the state does not bear the marks of consistency and good faith in two particulars. It seems that the defendant, in the first place, was not arrested for transporting whisky; he was arrested for speeding, and the liquor charge was the result of an afterthought, and was not filed until some time later. It further appears that the sense of smell of these two officers was too acute to reliably establish guilt beyond a reasonable doubt. That an officer driving at a high rate of speed in pursuit of another could detect the odor of whisky emanating from the car pursued seems improbable. Considered with the other evidence corroborating that of the defendánt, we think the mere statement of the other officer that he detected the smell of whisky and saw broken fragments of a vessel, as he sat in his car and ordered the defendant to the police station, was insufficient to establish the fact that the defendant was transporting whisky.

It is therefore the opinion of this court that the evidence in this case is insufficient to support the verdict, and the judgment of the trial court is ordered reversed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    ALBERT BARNHILL et al. v. STATE.
    No. A-4754.
    Opinion Filed July 11, 1925.
    (238 Pac. 220.)
    Cad Mathis, 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 in Pittsburg county, on the 22d day of October, 1922, Albert Barnhill, Bert Barnhill, and John Barnhill did “have in their possession certain intoxicating liquor, to wit, about one gallon of whisky, with the unlawful intent” to sell the same. On the trial the jury found the defendants guilty, and fixed the punishment of each “at imprisonment in the county jail for six months and a fine of $500.”

, To reverse the judgments rendered on the verdict they appeal and assign as error that the trial court erred in admitting incompetent evidence over the objection of the defendants, and in overruling the demurrer of the defendants to the evidence of the state at the close of the state’s evidence, and that the verdict of the jury is contrary to both the law and the evidence, and is excessive, unjust, and is the result of passion and prejudice.

The evidence shows that a deputy sheriff and a constable searched the home and farm of the defendant Albert Barnhill, a colored man, where they found and seized two bottles of whisky.

Bud Bickle, deputy sheriff, testified that he met one of the defendants about 150 yards west of the house; that he pulled his gun out of the scabbard, and told him he had something hid around there, and wanted him to dig it up, and the boy went to a stump and got the bottle of whisky; that he left the constable in charge of the defendants, and about 300 yards from the house he found 11 barrels of mash which he busted and broke up; that he delivered the two bottles of whisky to the sheriff’s office, but they were not there now.

Ivan Davenport, constable at Blocker, testified that they found about a half gallon of whisky behind the trunk in one of the rooms.

At the close of the state’s evidence there was a motion by the defendants for a directed verdict, on the ground that the evidence was insufficient to warrant a conviction, which was overruled.

For the defense, Alberta Smith testified that she was keeping house and picking cotton, and had been housekeeper there for about two years; that the whisky found in the house was found in her room; that she bought it from a white man, and paid $4 for it; that she put it there herself for the purpose of making a liniment with poke root out of it for her crippled leg; that the defendants did not know that she had the whisky.

The defendant John Barnhill testified that he bought for his own personal use the whisky that he took from the stump and gave the deputy sheriff; that he never sold any whisky, and neyer intended to sell any whisky; that neither his father nor brother knew anything about it. The defendant Bert Barnhill testified that he had no interest in any way in any whisky; that he had been working away from home, and had returned the day before, and had gathered a load of corn that morning, and was unloading it when the officers came.

Upon a careful examination of the record in this case' we have reached the conclusion that the judgment appealed from should be reversed. The only direct evidence of possession was obtained by threats and intimidation. We may remark here that, legally and morally, a more serious offense than that charged was committed by the officer in drawing a gun on one of the defendants, and compelling him to produce the bottle of whisky. An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose. Such conduct brings the administration of justice into disrepute, and tends to the subversion of peace and good order.

The evidence is also insufficient, to show an unlawful intent to sell as alleged in the information.

It follows that the court erred in overruling the motion for a directed verdict.

It also appears that the court gave the following instruction :

“No. 2. It is your duty to determine from the evidence under the instructions of the court as to whether the defendants are guilty or innocent of the crime of which they stand charged. (Excepted to by each of the defendants.. Exception allowed.) S. F. Brown, County Judge.”

This instruction is not a correct statement of the-law. It is the law that a defendant in a criminal action is presumed to be innocent until the contrary is proven by competent evidence, and in case of a reasonable doubt, as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.

For the reasons stated, the judgments appealed from herein are reversed.

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


text:
    WALTER McHENRY v. STATE.
    No. A-5046.
    Opinion Filed July 11, 1925.
    (238 Pac. 498.)
    C. E. Castle, for plaintiff in error.
   DOYLE, J.

Plaintiff in error, Walter McHenry, was-tried and convicted on an information charging that in. Wagoner county, on the 5th day of May, 1923, he did “have in his possession intoxicating liquor, to wit, Choctaw beer, with the intent then and there to sell the same,” and in accordance with the verdict of the jury was sentenced to pay a fine of $200 and to be confined in the county jail for a term of 60 days. Of the various errors assigned it is only necessary to consider one, that the verdict is contrary to the law and the evidence.

The state introduced four witnesses. The first witness, .Grant Davis, deputy sheriff, testified that under authority of a search warrant he with five or six other officers visited the farm occupied by the defendant and found that some Choc had been poured out in the yard and an empty jug near by; that he was pretty sure that the jug had had Choc in it. The next witness, Robert Murphy, deputy sheriff, testified that they found a gallon jug half full of Choc about 75 yards from the house, outside the defendant’s cotton patch. The testimony of two other witnesses for the state was substantially the same.

At the close of the evidence for the state, there was a motion by the defendant for a directed verdict of acquittal, on the ground that the evidence was insufficient to warrant a conviction, which was overruled.

The testimony of the defendant in his own behalf is as follows:

“I have lived in and around Wagoner all of my life. The officers came, and Mr. Rube Reynolds said that he wanted to search the place, and I said, ‘Help yourself, Mr. Rube,’ Mr. Clay Flowers picked up a jug, and one said it smelt like Choc, and Mr. Rube Reynolds picked up a jug on the garbage dump which was not on my place.”

The testimony of Peter Nail, Charley Payne, and Charley Monroe for the defense was that the jug the officers carried away with them was picked up at the city dump.

It is a well-settled general rule that this court will not disturb a verdict of conviction on account of the evidence where there is evidence to support it. The converse rule is clearly well settled that it is not only the province, but the duty, of the court to set aside a verdict when it is contrary to the evidence, or where there is no evidence to support it.

In this case it is past understanding why the lower court should have refused to direct a verdict of acquittal, as it is apparent there was a total want of evidence to support the allegations of the information.

Because the verdict is contrary to law and to the evidence, the judgment of the lower court is reversed.

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


text:
    WALTER BRADLEY v. STATE.
    No. A-5168.
    Opinion Filed July 11, 1925.
    (237 Pac. 625.)

      Rowe & Besley, 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, for convenience and brevity, will be referred to as defendant, as in the court below.

On the 14th day of December, 1923, the defendant, Walter Bradley, shot and killed Charles York. Both were negroes. York was an employee at the brickyard at Cleveland, while the defendant had been an employee, but was laid off temporarily. Some time prior to the killing there had been some quarreling by the defendant and the deceased, which had arisen on account of the wife of deceased talking about the defendant, and for which the defendant had threatened to whip her. The deceased had heard of this, and on one or two occasions quarreled with the defendant about it. On the night before the killing, according to the record, he accosted the defendant; asked him if he had his gun, and “Is you ready?” and again on the morning of the homicide he again accosted the defendant in threatening language. At the time of the killing, however, he had said nothing and made no hostile demonstration.

The jury returned its verdict finding the defendant guilty of murder, and assessing the death penalty. Several errors are assigned, but none of them are tenable or sufficiently serious to call for special consideration.

In addition to the errors argued, it is earnestly contended by counsel that the evidence does not show that degree of atrocity to warrant the death penalty. The law contemplates that the death penalty shall be imposed only in extreme cases. Where there is any provocation or fault on the part of the deceased, which, however, in its legal aspects does not reduce the offense, yet which in a sense mitigates the extreme features of the crime, this court, in the furtherance of justice, is empowered and should reduce the punishment from death to life imprisonment.

The death penalty, in the present state of society, in a proper case is no doubt a deterrent to some forms of criminality, and is a protection to society. In those cases where murder is wholly unprovoked, or where there is a lying in wait, or where deliberately committed for the purpose of or in the commission or attempt to commit a robbery, rape, or other felony, the death penalty is warranted ; but where a murder is not of the class enumerated, but grows out of a difficulty between the parties, a vindication of the law does not require the infliction of the death penalty. State v. Young, 19 Okla. Cr. 363, 200 P. 260; Walker v. State, 20 Okla. Cr. 316, 202 P. 799.

We have gone over the record in this case with that care that its importance requires, and, while the evidence sustains the verdict of murder, there are facts and circumstances in the case which should reduce the punishment from death to life imprisonment, and the punishment will accordingly be reduced to life imprisonment at hard labor, and, as modified, the judgment of the court is affirmed.

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


author: DOYEE, J.

text:
    B. E. WOODWARD v. STATE.
    No. A-5097.
    Opinion Filed July 11, 1925
    (238 Pac. 498.)

      M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYEE, J.

Plaintiff in error, B. E. Woodward, was tried and convicted under an information charging that he did unlawfully transport intoxicating liquor from a point unknown in Muskogee county to another point near the center of the 900 block, South Katy avenue, in the city of Muskogee, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and pay a fine of $50. To reverse the judgment, he appeals.

Of the various assignments of error it is only necessary to consider one, that the court erred in overruling the motion to exclude certain articles seized and the evidence relating to such seizure, on the ground that said search and seizure was made in violation of the constitutional guaranty prohibiting unreasonable search and seizure.

The facts which are undisputed are that B. E. Woodward, a farmer living near Oktaha, came to Muskogee with his family, and while walking along the street was arrested on suspicion that he did have in his possession intoxicating liquor.

The state introduced Lee Askew, who testified that he was a special deputy sheriff, and saw the defendant on South Katy avenue carrying a suitcase; that he ran after him, and the defendant threw down the suitcase and kept on going; that he caught him and took him to the sheriff’s office for investigation; that there was a gallon and a half of whisky in the suitcase; that he did not have a search warrant, but pursued him because he suspected he had whisky.

The testimony of the witness was introduced over the objections of counsel for plaintiff in error. The state rested, and there was a motion for a directed verdict of acquittal, which motion was overruled and exception allowed.

The defendant testified that this fellow ran upon him with a gun and arrested him and took him to jail, then brought an old suitcase in that he had never seen before and told him that was the grip that he threw away. He denied that he was carrying a suitcase.

The prosecution admitted that the arrest was made without a warrant, and the search and seizure was without a search warrant.

In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, it was held that:

“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.”

In the opinion it is said:

“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 the offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant.”

On the authority of the case cited, the judgment in this case is reversed and the cause remanded, with direction to discharge defendant.

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


text:
    PAUL LEVY v. STATE.
    No. A-4984.
    Opinion Filed July 11, 1925.
    (238 Pac. 235.)

      A. V. Dinwiddie, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Paul Levy, was tried and convicted on an information charging that he did unlawfully transport intoxicating liquor from a certain point in the city of Guthrie, to his home in said city, and in accordance with the verdict of the jury was sentenced to be confined for 75 days in the county jail and to pay a fine of $200. To reverse the judgment he appeals.

In the view we have taken of the disposition of this case, it is neither important nor necessary to consider more than one of the questions presented in the record and brief.

The undisputed facts are that a deputy sheriff and three or four policemen went to the home of the defendant in the city of Guthrie, in his absence. Two of the officers went into the defendant’s house, and two of them stationed themselves in his garage. When he drove up to his garage, one of the officers opened the door and said, “Paul, I guess we will have to take you.” They searched the car and found two jugs containing whisky, which they seized, and arrested the defendant. All the evidence in the case was admitted against the defendant’s objection on the ground that the same’had been secured by an illegal search and seizure. At the close of the evidence for the state, there was a motion by the defendant for a directed verdict on the ground that all the evidence in the case was illegally and unlawfully obtained.

It is the well-settled doctrine in this state that—

“Articles and property seized under color of unreasonable or unauthorized search and seizure are inadmissible; and oral testimony as to articles or property seized under such search and seizure inadmissible.” Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

A reasonable and lawful search and seizure is provided for in the Constitution by means of a search warrant, supported by oath or affirmation, and all others are unreasonable and unlawful.

It is also well settled that where the officer does not know of the act constituting the offense, it is not committed in his presence, and an officer without a warrant has no right to arrest a person for misdemeanor not committed in his presence. Keith v. State, 30 Okla. Cr. 631, 235 P. 631.

On the authority of the cases cited, the judgment in this case is reversed and the cause remanded, with direction to discharge the defendant.

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


text:
    JEFF GILSTRAP v. STATE.
    No. A-5041.
    Opinion Filed July 11, 1925.
    (238 Pac. 222.)

      Joe Dillard, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in this case, the defendants Bill Mundell and Jeff Gilstrap were jointly informed against for the theft of a heifer, the personal property of George Fulson.

Upon arraignment, the defendant Mundell pleaded guilty and testified as a witness for the state on the trial of the defendant Gilstrap. Upon his trial, a verdict of guilty was returned; the jury fixing his punishment at imprisonment in the penitentiary for a term of two years.. The judgment and sentence appealed from was rendered September 6, 1923. The petition in error and case-made was filed in this court February 29, 1924.

The only errors assigned are that the evidence is insufficient to sustain the verdict, that the court erred in not granting a new trial. The defendant is not represented in this court and no brief in support of the errors assigned has been filed.

We have examined the record and the evidence with considerable care, and we find the evidence is sufficient to sustain the verdict, that there was no prejudicial error in the rulings upon the admission of testimony, and the instructions fully stated the law applicable to the case.

It appearing that the defendant had a fair trial, the judgment of the lower court will be affirmed.

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


text:
    J. K. INMAN v. STATE.
    No. A-5016.
    Opinion Filed July 11, 1925.
    (238 Pac. 506.)
    Glaseo & Glaseo, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, J. K. Inman, was convicted of the crime of forgery, and, in accordance with the verdict of the jury, was sentenced to serve a term of 1 year and 3 months in the state penitentiary. From the judgment an appeal was taken by filing in this court February 11, 1924, a petition in error with case-made, but there has been no appearance made on his behalf in this court and no brief in support of the assignments of error has been filed. When the Case was called for final submission, it was submitted on the record.

The evidence shows that the defendant purchased a hat, gloves, and other purchases in the Mangum Department Store at Blanchard and in payment for the same gave a check for $42.50 on the First National Bank of Strong City, Okla., purporting to be signed by Clyde Young, and made payable to J. F. Inman, which check was indorsed J. F. Inman.

Mrs. Dirah Gibson testified that she was bookkeeper and cashier at Mangum’s Department Store in Blanchard; that the defendant came into the store and asked if she would take $10 for a hat, and she said, “Yes;” that then he bought some other things and asked her if she would take this check, and she asked him who he was, and he said he was Mr. Inman, a brother of the Inmans that lived south of town; that she took the check and gave him $28.50, the difference between the check and the price of his purchases.

Three or four other witnesses identified the defendant as the man who passed the check.

C. W. Morgan, deputy sheriff, testified that, when he arrested the defendant, he said:

“That he had come up to pay this check off, but, being that Mr. Mangum got so smart and swore out a warrant for him, he never intended to pay him a nickel on it.”

Clyde Young testified that he lived near Cheyenne, Okla., and had lived there about eighteen years; that he did not sign the check; that the First National Bank of Strong City honored it and he received it with his canceled checks; that he returned it because it was not his signature on the check; and that the same was forged.

Mr. Nr unskill testified that he was a banker, and had known the defendant 5 or 6 years, and was acquainted with his handwriting, and it was his opinion that the name “J, F. Inman,” the amount, and the signature on the check was the defendant’s handwriting.

As a witness in his own behalf, J. K. Inman testified and denied that he passed the check; that, when they made a demand on him to pay it, he refused to pay for that reason, and called several witnesses to show that, while he was in the neighborhood of Blanchard at that time, he was not in town on that day.

There was a demurrer to the information which was overruled.

Where an information for forgery charges the offense with a degree of certainty sufficient to enable the court to pronounce a proper judgment in case of conviction, the offense is sufficiently charged thereby.

We find the information is sufficient and the demurrer thereto was properly overruled.

We can have no doubt that the evidence warranted a conviction. The person by whom the check purported to have been made and signed testified that it was not his signature.

“Possession of forged paper by a defendant with a claim of title thereunder, if unexplained, raises a conclusive presumption that he forged it, or procured it to be forged.” 19 Cyc. p. 1412.

There being no prejudicial error disclosed by the record, the judgment of the court below is affirmed.

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


text:
    HERBERT MENAFEE v. STATE.
    No. A-5096.
    Opinion Filed July 11, 1925.
    (238 Pac. 221.)

      M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of conviction rendered on the verdict of a jury finding the defendant, Herbert Menafee, guilty on a charge of selling one-half pint of whisky to one E. F. Osborne, and fixing his punishment at a fine of $100 and confinement in the county jail for 30 days.

The petition alleges ten assignments of error.

The record shows that two witnesses for the state testified to the selling of whisky as alleged and positively identified the defendant as the man who delivered the whisky and received pay for the same.

As a witness in his own behalf, the defendant admitted that he occupied a room in the building where the sale was made, but denied being present at the time and denied having made the sale.

It is a sufficient answer to the contentions made that the information is sufficient; the evidence is sufficient, and there is no prejudicial error in the rulings upon the admission of testimony. The instructions fully stated the law applicable to the case, and the objections to the alleged improper remarks of the county attorney in his argument of the case were properly overruled. Thacker v. State, 3 Okla. Cr. 485, 106 P. 986.

Upon a careful examination of the record, we are of the opinion that the defendant had a fair and impartial trial.

The judgment of the lower court is therefore affirmed.

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


text:
    SON HICKMAN v. STATE.
    No. A-5261.
    Opinion Filed July 14, 1925.
    (238 Pac. 1118.)
    Guy H. Sigler, for plaintiff in error.
   PER CURIAM.

The information in this case charges that in Carter county, August 9, 1923, Son Hickman did take, steal, and carry away a certain Ford automobile, the personal property of W. L. Clayton. On the trial the jury returned a verdict finding the defendant guilty as charged in the information, and fixing his punishment at imprisonment in the state penitentiary for a term of five .years. From the judgment rendered on the verdict, February 9, 1924, an appeal was taken by filing in this court on August 8, 1924, a petition in error with case-made. Counsel of record for plaintiff in error has filed a motion to dismiss the appeal in this case, and asks that the mandate issue forthwith. The motion to dismiss the appeal is .allowed, and the appeal herein dismissed, and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution. Mandate forthwith.


text:
    JOHN CHILDRESS et al. v. STATE.
    No. A-5055.
    Opinion Filed July 15, 1925.
    (238 Pac. 218.)
    Mathers & Coakley and Hays & Dixon, for plaintiff in error.
    George F. Short and Chas. Hill Johns, Asst. Attys. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Love county, August 28, 1923, John Childress, Orton Townsend, and 0. Nichols “did then and there have in their possession intoxicating liquor, to wit, one-half gallon of corn whisky” with the unlawful intent to violate the prohibitory liquor laws of the state. On the trial the jury returned a verdict finding the defendants guilty as charged in the information, and fixing their punishment at $50 fine and 30 days in jail each.

The undisputed facts are that N. N. Smith, sheriff of Love county, and J. W. Stafford, his deputy, were going west in an automobile on the Burneyville road, and saw a car coming west on said highway, in which were the three defendants.

Sheriff Smith testified as follows:

“Q. Do you know the defendants John Childress, Or-ton Townsend, and 0. Nichols? A. Y;es, sir.
“Q. Where did you see them? A. Three quarters of a mile this side of the negro school, on the Burneyville road; they came around the curve from the west right there at the negro graveyard. We recognized them and started to pull in and stop them, and they tried to go around, and we jammed our car into theirs and stopped them, and Mr. Townsend broke the jar.
“Q. Did you have a search warrant? A. No; I didn’t have time to get one.
“By Mr. Mathers: If the court please, we move to strike the witness’ testimony from the record for the reason that it was obtained without proper search warrant.
“By the Court: Motion overruled. Exception.”

He further testified that he picked up the pieces of the fruit jar, and there was some whisky left in the top part of the jar.

J. W. Stafford testified, in substance, to the same facts as did the sheriff.

The state rested, and the defendant moved for a directed verdict of acquittal, which motion was overruled.

As witnesses in their own behalf, the defendants testified that there was no whisky in the car, and that the fruit jar that was broken contained only water for the purpose of filling the leaky radiator on their car.

It is too familiar to require citation of authority that it is the settled doctrine in this state that, in order to make an arrest and seizure without a warrant under section 7014, C. S. 1921, there must be a violation of the prohibitory liquor laws committed in the presence of the arresting officer, and a conviction must be reversed where evidence procured by an officer of the court by means of an unauthorized search and seizure is admitted over the objections of the defendant.

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

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


text:
    CAL GREEN v. STATE.
    No. A-4926.
    Opinion Filed July 15, 1925.
    (238 Pac. 505.)
    M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for unlawful possession of intoxicating liquor and sentence of confinement for 90 days in jail and a fine of $250.

The undisputed facts are that on August 29, 1923, Deputy Sheriffs Jones, Watts, and Eagsdale, with Jack Fuller, a federal officer, raided a place in the city of Muskogee known as the Midway Buffet, and found white men and negroes standing around the bar, all apparently somewhat intoxicated. The officers testified that the defendant was standing behind the bar, and when they came in he seized a half gallon fruit jar containing corn whisky and poured it into a candy bucket containing lysol, leaving about one-half pint of whisky in the jar.

The officers further testified that the reputation of - the place conducted by the defendant as to being a place where intoxicating liquors were sold was bad.

As a witness in his own behalf, the defendant denied that the jar contained whisky.

The only objection made to the testimony on the part of the state was that as to the reputation of the place.

It appears that the Midway Buffet was a place of public resort. It follows that the objections were properly overruled.

It is argued that the search and seizure without a search warrant was illegal, and that evidence thus obtained was incompetent.

It appears from the record that the first objection made to the admission of the evidence is in the petition in error.

It is well settled that a defendant may waive the incompetency of evidence by failing to object to it on the ground, and the admission of incompetent evidence, if not objected to at the time, cannot afterwards be made the ground of an objection. Wharton, Crim Pl. & Pr. §§ 801, 844, 877; Drury v. Territory, 9 Okla. 398, 60 P. 101.

Complaint is made of alleged misconduct of the county attorney in making improper statements in his argument to the jury. It is sufficient to say that the remarks objected to did not go beyond the bounds of fair and legitimate comment on the facts in evidence.

Finding no substantial error in the record, the judgment of the lower court is affirmed.

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


text:
    H. PARKER v. STATE.
    No. A-4925.
    Opinion Filed July 15, 1925.
    (235 Pac. 224.)
    M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case H. Parker was charged with unlawfully transporting four one-half pints of whisky from a point unknown in Muskogee county to a point on the picnic grounds 2% miles south of Haskell. On the trial the jury returned the following verdict:

“We, the jury in the above-entitled action, duly impaneled and sworn upon our oaths, find the defendant, H. Parker, guilty as charged in the information herein, and ask the court to fix the punishment.” Signed by five jurors.

Which verdict was received over the objection of counsel for the defendant. The court rendered judgment, and sentenced the defendant to be confined in the county jail for 90 days, and to pay a fine of $250, together with the costs of the amount of $35. To reverse the judgment he appeals.

The state introduced but one witness, Gus Whittaker, deputy sheriff, who testified that he met the defendant about 50 feet from Jefferson Highway, and threw his flashlight on him, and found two half pints of whisky in his jumper and two in his overalls.

The state rested, and the defendant moved the court to direct a verdict of not guilty for the reason there is a fatal variance between the information and proof, and the further reason the testimony is entirely insufficient “upon which to predicate a verdict of guilty.” The motion was overruled.

H. Parker, the defendant, testified that he lived in Haskell for the past five years, doing transfer work and that day had been hauling people from the town to the picnic grounds; that he bought four half pints of whisky from Warren Preston, who lives on Cane Creek, and told him where to put it, and he would get it when he got ready to go home; that he left the picnic ground and went to where it was and picked up three half pints and put them in his pockets, and had started to drink out of the other one when Gus Whittaker threw a searchlight on him, and arrested him.

A number of errors are assigned and argued, but, in view of the fact that the defendant’s testimony shows that he directed the man from whom he claims he bought the whisky to convey it to the place where the defendant picked it up, thus admitting his guilt, it is only necessary to notice the assignment that the court erred in overruling the defendant’s objection to receiving the verdict in the form returned.

Our code of criminal procedure provides that in all cases of a verdict of conviction the jury may, and shall, upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law (section 2750, C. S. 1921) ; and further provides:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it.” Section 2743.

Under the statute, if the defendant request it, the jury must assess the punishment, or say by their verdict that they are unable to agree upon the punishment. Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140.

We think it was the duty of the court to require the jury to render a formal verdict showing that they were unable to agree upon the punishment, and for this reason the judgment and sentence of the trial court will be modified to a fine of $50 and confinement in jail for 30 days. Thus modified, the judgment of the lower court is affirmed.

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


text:
    JACK RAMBO v. STATE.
    No. A-4821.
    Opinion Filed July 18, 1928.
    (238 Pac. 869.)

      J. Q. A. Harrod and W. R. Withington, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below.

From a conviction on a charge of unlawful possession of intoxicating liquor, the defendant appeals. The contention is made that there is no proof of the alcoholic content of the liquid in question. The record discloses that on the 26th of April, certain officers went to the residence of defendant and found a barrel containing about 50 bottles of “choc beer” on ice, which was seized. On May 6th an analysis of said liquid was made and it was found to contain 1.47 per cent, alcohol, measured by volume. There was evidence that liquid of this character would develop alcoholic substance in about a week, depending on the condition in which it was made and kept. The chemist who made the analysis further testified that he was unable to tell whether or not the alcoholic content was the same on the 26th day of April as it was on the 6th of May, when he made the analysis. That it might be stronger. The state contends that by reason of the analysis at the time it was made showing more than one-half of 1 per cent, alcohol, that a prima facie case was proven and that the burden then devolved on the defendant to show that at the time the liquid was seized it contained less than one-half of 1 per cent, of alcohol.

The courts do not take judicial knowledge of the alcoholic content of “choc beer,” since its manufacture is not uniform and it is not a liquid per se intoxicating. Skelton v. State, 31 Okla. Cr. —, 239 P. 189.

It was therefore necessary that the state prove, either directly or by circumstantial evidence, that at the time or near the time when seized the liquid in question contained as much as one-half of 1 per cent, of alcohol, measured; by volume. Proof that the liquid in question, 10 days after its seizure, contained 1.47 per cent, alcohol was not proof that at the time it was seized it contained the prohibited per cent. Since, according to some of the evidence in the case, the alcoholic content changed with the degree of fermentation, the evidence was insufficient on that point. If the liquid had been analyzed following its seizure and found to contain more than the prohibited quantity of alcohol, such evidence would have been at least circumstantial proof that at the time of its seizure, it contained the prohibited amount. But a delay of 10 days in making an examination is so unreasonable that it is not proof of the alcoholic content at the time of its seizure.

Since the case must be reversed, we deem it unnecessary to determine whether or not the seizing of the liquid in question without a search warrant under the facts proven was an invasion of the rights of the defendant. For the reason assigned, the case is reversed and remanded, with instructions to the lower court to dismiss.

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


text:
    RAYMOND COOPER v. STATE.
    No. A-4908.
    Opinion Filed July 18, 1925.
    (238 Pac. 503.)

      Ross Rizley and H. E. G. Putman, 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 will be referred to as defendant, as in the court below.

From a conviction on a charge of rape in the second degree, defendant appeals. The record discloses that in the month of December, 1920, the prosecutrix, Berta Noel, was 15 years of age, attending the Guymon high school as a first year pupil. During that month she met the defendant on two or three occasions when he came where she boarded to call on her. On the 20th of December he met her at the post office, and persuaded her to go to the town of Hooker with him. On that afternoon gave her. $5 for railroad fare and expenses, and they did go on the same train to the town of Hooker. He accompanied her to a rooming house there, where the prosecutrix registered, was assigned a room on the first floor, and defendant had a room on the second floor. Later the defendant took prosecutrix to the second floor, introduced her to a woman who had a room on that floor, where she stayed some time. He then took the prosecutrix to a cafe where he worked, where they had supper together, and on returning to the hotel took her by the back stairs to his room, where an act of sexual intercourse was accomplished. They then called on some friends of his in the town, and later returned to the hotel, and two or three acts of sexual intercourse were accomplished in a room on the first floor. Some time during the night the prosecutrix returned by train to Guymon. After that the defendant met her on one or two occasions, when acts of intercourse took place. The prosecutrix became pregnant and gave birth to a child on the 15th of September, following. Her testimony is that the defendant agreed if she got into trouble he would marry her. This was corroborated by proof of statements made by the defendant. The defendant did not take the stand, and there is no contradiction of the fact of the acts of intercourse as detailed.

Three assignments of error are presented and argued in the brief of defendant: First, that ,the court erred in overruling the motion to quash the information; second, error in the court’s instruction No. 4; third, error in the court’s instruction No. 5. These assignments will be considered in the order presented.

The case-made contains what purports to be a motion to quash the information on the ground that no verified complaint had been filed before a committing magistrate; that no preliminary hearing had been had or waived as provided by law; that there was a fatal variance between the original complaint before the committing magistrate and the information. Attached to the motion to quash is a copy of the original complaint and the transcript of the justice of the peace. The preliminary complaint and the information are substantially in the same language. The complaint is verified before a justice of the peace, who attaches his undated jurat. Also, there is attached a transcript of the committing magistrate in part in this language:

“* * * Now, on this 7th day of March, 1923, this case came on for preliminary, and after the court had heard the evidence, bound the defendant, Raymond Cooper, to answer in the district court at the next regular session in the sum of $3,000. * * *”

It is contended that, under section 2497, Comp. St. 1921, the transcript is insufficient to give the district court jurisdiction; that the committing magistrate did not find that any offense has been committed, citing Norwood v. State, 14 Okla. Cr. 637, 169 P. 656; Canard v. State, 2 Okla. Cr. 505, 103 P. 737, 881, 139 Am. St. Rep. 949; Williams v. State, 6 Okla. Cr. 373, 118 P. 1106; People v. Wallace, 94 Cal. 497, 29 P. 950; People v. Wilson, 93 Cal. 377, 28 P. 1061.

In the record before us, however, it appears that a preliminary before a committing magistrate was had; the defendant held to the action of the district court and a transcript signed by the justice of the peace, filed in the district court. Even should this court hold that the transcript is insufficient, the defendant cannot avail himself of the objection in this case at this time, for the reason that the record before us does not disclose that the motion to quash was ever called to the attention of the trial court, or that any evidence in support of it was offered, or that the trial court ever acted upon it, or that any exception was taken by the defendant. The record does show that an information was filed in the district court charging the same offense as that charged in the preliminary complaint, that the case was called for trial on the information, and that both the state and the defendant announced ready for trial. This was a waiver of the objections raised by the motion to quash. There is nothing in this assignment for this court to review.

The second assignment is directed at the court’s instruction No. 4, as follows:

“If you believe from the evidence, facts, and circumstances in this case beyond a reasonable doubt that on or about the 20th day of December, 1920, and in said Texas county, the said defendant accomplished an act of sexual intercourse with the prosecuting witness; that the said prosecuting witness was not at said time the wife of said defendant, but wag at gaid time under the age of 16 years, then your verdict should be that the defendant is guilty of rape in the second degree; otherwise you should acquit him.”

The undisputed evidence shows that several acts of intercourse were accomplished between the defendant and the prosecutrix covering a period of some three or four weeks’ time. The defendant did not request the court to require an election of which particular act it would rely for a conviction, and the court did not require an election.

It is well settled that in a prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between the defendant and prosecutrix upon which a conviction could be had, it is the duty of the trial court, upon motion, to require the state to elect upon which of the several acts it intends to rely for a conviction. If no motion is made to require the state to elect, the trial court, of its own motion, should require the prosecution to elect upon which of said acts it will rely, or should treat the act of which the state first introduced evidence which tends in any degree to prove the offense as an election, and should by proper instruction limit the jury to a consideration of such particular act as a basis for conviction, and limit the consideration of other acts as corroboration and as showing the relation of the parties. Montour v. State, 11 Okla. Cr. 376, 145 P. 811; Gracy v. State, 13 Okla. Cr. 643, 166 P. 442; Smith v. State, 20 Okla. Cr. 124, 201 P. 663; Pope v. State, 24 Okla. Cr. 213, 217 P. 498.

The holdings of this court in the authorities cited may be summarized by saying that a person may be tried for and convicted for only one offense at a time; that rape is not a continuous offense, and while in a trial upon a charge for rape proof of other acts of intercourse may be proven for the purpose of corroboration, and as showing the intimate relation between the parties, a conviction must be based on one act. H'ere, the defendant was not tried with reference to any particular act, the prosecution was not required to elect any particular act, and the court did not treat the first act proven as an election. The instruction above quoted permitted the jury to convict upon any act of intercourse committed “on or about the 20th day of December, 1920.” All of the acts committed, as shown by the evidence, were committed “on or about the 20th day of December.” It is plain that it cannot be determined from the record upon which particular act of intercourse the conviction is based. The failure of the court to require an election, or to treat the first act proved an election, and in giving the instruction complained of, the conviction may have been based upon any of the acts proven. The error is reversible.

The third assignment is directed at the court’s instruction No. 5, which is to the effect that the jury are the sole judges of the credibility of the witnesses and the weight and value to be given their testimony. This instruction is somewhat involved and not to be commended, but does not constitute error.

For the reasons assigned, the case is reversed.

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


text:
    BERYL TOBIAS v. STATE.
    No. A-4898.
    Opinion Filed July 18, 1925.
    (238 Pac. 227.)

      H. J. Sturgis, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant in the trial court, raises but one question in this appeal. He urges that the evidence is insufficient to support the verdict.

The evidence shows that the defendant owned and operated a 320-acre farm about 6 miles from Enid; that his house and farm buildings were located about 300 yards from the intersection of two public highways at the corner of his farm, and that lanes led from these highways to the buildings; that there were about 5 acres in orchard within the confines of these two lanes and the highways.

Peace officers, acting under authority of a search warrant, found a trench in this orchard, about midway between the house and the highways, in which were two empty jugs and two 2-gallon jugs of corn whisky; this trench was covered with leaves, straw, and dirt. In the barn, covered with hay and chaff, they found other vessels similar to those found in the orchard. In the garage or toolhouse they found a rubber tube, which they claimed gave off the odor of whisky. In a fence corner near the granary they found another hole or trench, about 214 feet deep, covered with a board and a flat stone; this trench contained nothing. In the barn, next to the concrete foundation, at a place where the hay was thrown down from the loft above, they found another hole or trench; this hole was full of chaff and hay.

The defendant denied all knowledge of the trench in the orchard and of the whisky and containers therein found, and denied knowledge of the holes or trenches at the granary and in the barn. The defendant introduced six character witnesses, neighbors who stated that they had known the defendant for years — some of them all of his life — and that his reputation for being a law-abiding, industrious citizen was good; that his reputation for truthfulness was good; that he was not a drinking man himself; and that they had never known of his being connected with or accused of illicit liquor transactions before. The defendant offered to introduce yet other character witnesses, and the state admitted that his character had hitherto been good.

On the evidence introduced, the jury found the defendant guilty, and assessed his punishment at confinement in the county jail for a period of 6 months and a fine of $500.

In consideration of the evidence as above outlined, in connection with some other circumstances not related, this court holds that the evidence was sufficient to support the verdict of guilty. We think, however, that the defendant’s veracity, good character, and industrious habits are worthy of serious consideration, which, in connection with the fact that the defendant had never before been convicted or even accused of a public offense, leads us to hold that the punishment in this case should be modified to confinement in the county jail for a period of 30 days and to pay a fine of $50. Good character and a clean record ought to be worth something to every citizen, including a defendant on trial for a first offense.

The punishment is therefore modified as above stated, and the judgment as so modified is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    BOB TIBBS et al. v. STATE.
    No. A-4837.
    Opinion Filed July 18, 1925.
    (238 Pac. 219.)
    J. H. Harper, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error will be referred to as defendants, as in the court below. The defendants were convicted of grand larceny, and appeal.

The error assigned for reversal is that the evidence was insufficient to sustain the verdict. See companion case of McDowell v. State, 30 Okla. Cr. 187, 284 P. 1109. The evidence was circumstantial, but shows about the following state of facts:

On Sunday night one Smith lost about 600 pounds of seed cotton, of a value of about 6 cents per pound, from a wagon in his field. This cotton was carried some distance to a section line, where tracks indicated a truck had stood, and shoe tracks of two persons led from the place where the truck stood to the cotton wagon and back, indicating that the persons had made several trips from the cotton wagon to the truck. These shoe tracks had certain peculiarities. The tires on the truck also had peculiarities. On the night in question, defendants procured a truck from one Bowen near Comanche, drove to Waurika, and some time about midnight went from Waurika to Burkburnett, Tex. After the theft was discovered the officers procured the truck* compared the track made by it with the tracks where apparently the cotton had been loaded into it, and also procured shoes worn by the defendants, which were compared with the human tracks leading from the cotton wagon to the place where the truck stood. The testimony is that in all the particulars they corresponded exactly. The body of the truck also contained fragments of lint and cotton burrs.

The defendants admitted the trip to Burkburnett, Tex., on the night in question in the truck, and also that they were at Waurika, which was near the place of the larceny. The defense was an alibi. The jury evidently disbelieved the testimony of the defendants, and believed the evidence offered by the state. There was ample evidence from which the jury could reasonably and logically find the guilt of the defendants, and, as the jury are the sole judges of the facts, this court cannot disturb the verdict. Summers v. State, 7 Okla. Cr. 10, 120 P. 1031; Sims v. State, 7 Okla. Cr. 701, 120 P. 1033.

The case is affirmed.

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


text:
    SHERM OVERSTREET v. STATE.
    No. A-5060.
    Opinion Filed July 18, 1925.
    (238 Pac. 222.)

      E. W. Snoddy, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Two carpenters were working on a

building at the outskirts of Waynoka and observed the defendant go to a place along the public highway, a quarter of a mile or more distant, and there stop; he then went on about 75 feet further and stopped again. The defendant retraced his steps and returned, passing the place where these carpenters were working. The two workmen then went to the places where the defendant had stopped and found a small bottle of whisky at each of the places. Each of them took one of the bottles home with him. An hour or so later these witnesses saw the defendant, in a car with one other person, go to these places from which they had gotten the bottles of whisky and there appear to be searching for these bottles.

Some one told a deputy sheriff that these two carpenters had found some whisky. The deputy sheriff then interrogated the men and upon his request they delivered to him the whisky which they had found.

The defendant’s defense was an alibi. He and other witnesses testified that he was not in Waynoka the day the whisky was said to have been found.

We think the evidence is insufficient to support a charge of illegal possession. Conceding all that the state showed, the whisky may have belonged to some other person. It will serve no good purpose to. recite the facts and reasons for such conclusion in detail.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    C. CARIGNANO v. STATE.
    No. A-4102.
    Opinion Filed July 18, 1925.
    (238 Pac. 507.)
    Philos S. Jones, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding the defendant guilty of unlawful possession of intoxicating liquors, and assessing his punishment at a fine of $250 and confinement for 90 days in the county jail.

A number of errors are assigned and argued, but one of which was deemed necessary to notice, and that is that the court erred in admitting evidence obtained by unlawful search and seizure, under a search warrant illegally issued.

The undisputed facts are that the defendant was engaged in the general mercantile business on the south side of Main street in the city of Wilburton, ■ and resided in a building adjoining; that on the day alleged, in the absence of the defendant, his wife being in charge of their store, Austin Parks, under-sheriff with two deputy sheriffs, went to the store and under authority of a search warrant searched the premises for intoxicating liquors, securing a pint and a half of whisky, ten bottles of vino vitse, and a bottle of wine of pepsin.

On the objections of the defendant the trial court held that the search warrant was illegal because the affidavit upon which it was issued was insufficient, but allowed the evidence of the liquor found and seized to be admitted.

The defendant was not present when the place was searched, and it does not appear that his wife made objection to the search of the premises by the officers.

In the case of Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654, it was held:

“The constitutional rights of a person to be secure against unreasonable searches and seizures and self-crimi-nation were not waived when his wife admitted to his home federal officers, who came without warrant, demanding admission to make search of it under government authority, even assuming that it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, since, under the implied coercion here presented, no such waiver was intended or effected.”

It is the well-settled doctrine in this state that evidence obtained by unlawful search and seizure is not admissible in evidence against an accused where timely objections are made to the introduction of such evidence so illegally obtained, and that the same rule will apply to objections made to oral testimony of the officers relating to such illegal search and seizure. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Committi v. State, 28 Okla. Cr. 380, 231 P. 316; Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

It appearing that all the state’s evidence in this case was obtained by an unlawful search and seizure and contrary to Const. art. 2, § 30, and that the same was improperly admitted against the defendant in violation of his rights under Const. art. 2, § 21, the judgment appealed from will be reversed and the cause remanded with direction to discharge the defendant.

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


text:
    FRED SMITH v. STATE.
    No. A-4889.
    Opinion Filed July 18, 1925.
    (238 Pac. 866.)

      Wright & Gill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

By verdict of a jury plaintiff in error, here referred to as the defendant, was found guilty of the illegal possession of whisky, with his punishment fixed at confinement in the county jail for a period of 90 days and to pay a fine of $250.

The assignments of error may be summarized as follows: (1) Failure to prove venue; (2) erroneous instructions to the jury; (3) defective and void verdict; (4) insufficiency of the evidence.

We think the evidence sufficiently establishes venue. One of the witnesses described the place where the offense was committed as about 4% miles southeast of Oklahoma City, near the Grand boulevard where it crosses Eastern avenue. The court will take judicial notice that this place is within Oklahoma county.

The defendant complains of instruction No. 6, as follows :

“You are instructed that the keeping or having in control in excess of one gallon of whisky under the laws of this state shall be prima facie evidence of an intention to sell or otherwise dispose of such liquor contrary to law.”

This instruction is in almost the exact language of the statute, and is not subject to the criticism stated in the case of Committi v. State, 28 Okla. Cr. 380, 231 P. 316, wherein the court, in addition to stating the law as defined by statute, undertook to define the term “prima facie,” and in so doing shifted the burden of proof to the defendant.

Instruction No. 8, also challenged, related to circumstantial evidence. Without setting out this instruction in full, we hold that, while it may not be technically correct as given, yet it could not operate to mislead the jury, and substantially stated the law on circumstancial evidence. Neither did it shift the burden of proof, as was done in the case cited by defendant, in support of his contention. Brennon v. State, 27 Okla. Or. 286, 226 P. 1062.

The verdict complained of was as follows:

“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, Fred Smith, guilty, and fix his punishment at a fine of $250 and confinement in the county jail for a period of 90 days.”

Defendant says that, inasmuch as the jury did not specifically set forth in the verdict that the defendant was .guilty of illegal possession, or was guilty “as charged,” the verdict is defective and void. No objection was interposed in the court below to the form of this verdict. The record elsewhere shows that the defendant was tried for illegal possession; the information and the instructions of the court, and all the proceedings so indicated. Under such circumstances the verdict will not be disturbed by this court on the grounds urged. Walker v. State, 11 Okla. Cr. 339, 127 P. 895; Ex parte McLean, 84 Kan. 852, 115 P. 647, 35 L. R. A. (N. S.) 653.

Finally, it is contended that the evidence is insufficient to support the verdict. It would serve no good purpose to recite the facts at length, other than to say that this defendant and his two companions were twice seen on the highway adjacent to where a considerable quantity of whisky was concealed; that in their automobile and near where the whisky was found there were bottles and other containers which had recently contained whisky. These facts, in connection with the acts, declarations, and conduct of the defendant in the presence of several witnesses and a deputy sheriff, if believed by the jury, were sufficient to support the verdict.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    OTTO SCHEFFE v. STATE.
    No. A-4907.
    Opinion Filed July 18, 1925.
    (238 Pac. 510.)
    H. J. Sturgis, for -plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted of a violation of the prohibitory liquor law, and appeals. No briefs have been filed by the plaintiff in error nor the state. We have examined the record, which discloses that on the date in question certain officers in the nighttime observed a car go to the place of residence of the defendant, and one of the occupants of the car got out and went to the door of the house and soon returned carrying a jug. As the-car left, it was stopped by the officers, its occupants arrested, and the jug seized. It contained a quart of whisky. The two occupants of the car testified that they purchased it from the plaintiff in error. The plaintiff in error did not testify and offered no evidence. The verdict is fully supported by the evidence, and the appeal is without merit. The case is affirmed.


text:
    LEVI STOCKTON v. STATE.
    No. A-4868.
    Opinion Filed July 18, 1925.
    (238 Pac. 508.)
    A. E. Darnell, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, Levi Stockton, here referred to as the defendant, was by verdict of a jury found guilty of conjoint robbery, with his punishment assessed at confinement in the state penitentiary for a term of 6 years.

The testimony shows:

That James A. Scott, a farmer who had lived in Custer county for 22 years, was driving along the highway in an automobile on the night of August 11, 1922, at a point between Dripping Springs and Weatherford, in company with another man and three women. That as they drove down to a bridge they saw a car standing, with some tools in the highway beside it, in such manner that Scott could not drive onto the bridge. Scott and his companions were therefore forced to stop at this point, and one of the two men from the other car, holding the muzzle of a Winchester against Scott’s body, commanded him to “put ’em high.” All of the occupants of the Scott car got out of the car, and the two highwaymen took from Scott 85 cents in money, a German iron cross, a pocket knife, some cigarettes, and other articles. Scott made no resistance, because he was in fear of being shot by the highwaymen. The highwaymen were not identified at this place because one of them had a red handkerchief over his face and the other a blue handkerchief.

While these incidents were occurring, an automobile approached, and the robbers directed Scott and his companions to push the Ford roadster, which was standing in the middle of the road, up the hill in order to let the other car pass. They were then directed to get into their car and drive on. Scott drove on to a farmhouse and notified the sheriff, after which, in company with two farmers, he returned to the place where he was held up. Two men driving a roadster (not a Ford) passed them, and the driver stated that he had found a pocket book in the road and at about the spot where the robbery had occurred, and asked Scott and the two farmers if the pocketbook belonged to them. They then went down the road about a mile and a half and found an old Ford roadster overturned in a ditch by the side of the road. Scott and the others identified the roadster in the ditch as being the one, or similar to it, in possession of the highwaymen at the point where the robbery occurred. The car was described as being a Ford roadster with an old body, but with new fenders, that the top was down, and that the headlights were of the type usually found on a Maxwell car. The. car in the ditch was further identified as being the one which had been in possession of the highwaymen by the tracks and treads of the tires. The car that approached when the robbery was taking place was driven by a banker from Weatherford, who corroborated the other witnesses with reference to their pushing the car up the hill, and to the attending circumstances. He also testified about the car being found in the ditch, and that it was his judgment that the car in the ditch was the same car he had seen at the bridge some few minutes earlier.

The defendant himself claimed the car in the ditch. The sheriff of Custer county testified: That he went to the place where a Ford roadster was wrecked and found a hat and a handkerchief in the road near the Ford car. That he then proceeded to the defendant’s home where he found the defendant in bed. That he found a blue bandanna handkerchief in the defendant’s room. That while the defendant was dressing he inquired of the sheriff as to the cause of his arrest, and that the sheriff replied that it was on account of “this deal out east here.” Presently the defendant said, “What is it?” The sheriff answered, “Levi, I have your car that was wrecked out here, and I see your knee is skinned.” After some further conversation the sheriff said, “Where are the guns?” and the defendant replied, “The other fellows has got them.” The sheriff then wanted to know who they were, and defendant replied, “All I know is ‘Blackie,’ and if you want the other fellow you better hurry, because he is leaving.” There were many other circumstances tending to explain the transactions, but for the sake of brevity they will be omitted.

As indicated by the verdict, the jury believed that the identification of the defendant was sufficient, and from a perusal of the evidence this court believes that the jury were justified in this regard.

The defendant did not take the witness stand, or make any explanation of his whereabouts on the night in question, or his connection with the affair, but rested his case after he had introduced several witnesses whose testimony indicated that his reputation as a law-abiding citizen was good.

A defendant, if he so elects, may refrain from taking the witness stand in his own behalf, and require the state to overcome his presumption of innocence, but in cases where the circumstances point so conclusively to the guilt of the defendant, as is shown in this case, the defendant, not as a matter of law, but as a matter of expediency, had better make some explanation or be prepared to take the consequences.

No' exceptions were taken to the instructions of the court, and no instructions were proffered by the defendant. The instructions given fairly covered the law of the case.

The claim that the court erred in admitting the statements made, by the defendant, as testified to by the sheriff, is untenable. There is no showing that these statements were obtained by force, fear, or any character of duress.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ROBERT PIERCE et ux. v. STATE.
    No. A-5071.
    Opinion Filed July 20, 1925.
    (238 Pac. 226.)

      A. W. Whitfield and Carter & Carter, for plaintiffs in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Okmulgee county, April 15, 1923, Eobert Pierce and Malinda Pierce “did have possession of certain intoxicating liquors, to wit, one pint of corn whisky, with the unlawful intention on the part of them of selling the same,” and in accordance with the verdict of the jury they were each sentenced to pay a fine of $500 and to be confined in the county jail for six months.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is the evidence is wholly insufficient to support the verdict, and the judgment is contrary to law and to the evidence.

The evidence shows that the defendants are negroes, living on Fifth street in Okmulgee, their home being in the back part of a store building, the front part of said building unoccupied, except that it was sometimes used for dancing purposes by colored people.

M. L. Lairmore, deputy sheriff, testified that he ha’d a call over the telephone that there was trouble of some sort at Pierce’s place, and went down to investigate, and picked up upon the way Earnest Hulsey; that when they arrived they found no trouble; that the defendant Malinda Pierce started to go by him, and he saw a bottle under her arm, like, and grabbed her and took the bottle, and it was a half pint of corn whisky.

Earnest Hulsey testified that he was present when Mr. Lairmore took a pint bottle from Eobert Pierce’s wife.

The state rested, and the defendants moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

Malinda Pierce testified that somebody called for her husband over the phone, and she opened the door to call him, and Mr. Lairmore grabbed her and took the bottle from her bosom; that he and Mr. Hulsey searched the place, but did not find anything; that she had never before been arrested.

In rebuttal, the state called Cell P. Fowler, who testified that he was desk sergeant at the police court and as such had charge of the records of the court, and they showed four cases against Robert Pierce as follows: Arrested June 10, 1923, for possession of whisky, and then turned to the county ; Case No. 1421, pleaded guilty and was fined $10; Case No. 851, arrested for possession of whisky and fined $10; and on October 26th was fined $15.

Before the jury is authorized to find a defendant guilty, there must be evidence sufficient to show that the offense has been committed and to identify the defendant with the commission of it as charged in the information. All the evidence in this case, both in chief and in rebuttal, was incompetent, but no proper objection was interposed. However, as a matter of law we are of the opinion that the evidence in chief was insufficient to warrant the submission of the case to the jury. Possession of a half pint of whisky in a person’s home is not presumptive evidence of intention to violate provisions of the prohibitory liquor laws. There was no evidence tending to show possession by the defendant Robert Pierce, and the evidence was insufficient to show an unlawful intent on the part of the defendant Malinda Pierce. Manifestly the verdict in this case was the result of prejudice.

Because the evidence is insufficient to support the verdict, the judgment of the lower court is reversed.

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


author: DOYLE, J,

text:
    LUKE SIMMONS v. STATE.
    No. A-5056.
    Opinion Filed July 20, 1925.
    (238 Pac. 230.)
    Hays & Dixon, for plaintiff in error.
    The Attorney General and Chas. H'ill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J,

The information in this case charged that in Love county, July 22, 1923, Luke Simmons did “have in his possession about one hundred gallons of sour mash, the said mash mentioned aforesaid being then and there intoxicating liquors, containing more than one-half of one per cent, of alcohol by volume, contrary,” etc. By leave of court the information was amended by interlineation by adding the words:

“The said sour mash being in the possession of the said Luke Simmons with the unlawf ul intent on the part of him, the said Luke Simmons, to violate the prohibitory liquor laws of the state of Oklahoma.”

On the trial the jury returned a verdict finding the defendant “guilty of unlawful possession as charged in the information and assessed his punishment at thirty days in the county jail and a fifty dollars fine.” To reverse the judgment, he appeals.

The assignments of error question the sufficiency of the amended information to charge an offense and the sufficiency of the evidence to sustain the conviction.

The evidence shows that John Turner and J. G. Webber, deputy sheriffs, found two barrels of mash in a brush pasture owned by Will Bass, about 500 yards from the defendant’s house; that they then went to the defendant’s premises and searched it and found a few fold boxes that appeared to have had mash in them. The defendant denied any knowledge of the mash. The state rested, and the defendant moved for a direct verdict on the ground that the evidence was insufficient to warrant a conviction.

The defendant testified that with his wife and three children he moved on the Bass place that year, and was farming 40 acres in cotton; that Will Bass’ pasture was not under his control; that he knew nothing about the two barrels of mash found by the officers; that he was never before arrested.

J. J. Collins and Billy Oswalt each testified that they had known the defendant since he was a small boy and knew his reputation in the community as to being a law abiding citizen, and that it was good.

We deem it only necessary to say that the evidence is insufficient to show the alleged possession of intoxicating liquors by the defendant, and for this reason the court should have sustained the defendant’s motion to advise a verdict of acquittal.

The judgment appealed from is accordingly reversed.

BESSEY, P. J., and EDWAKDS, J., concur.


text:
    R. L. STEVENS v. CITY OF TULSA.
    No. A-5386.
    Opinion Filed July 20, 1925.
    (238 Pac. 1119.)
    Dunn & Meyer, for plaintiff in error.
    S. J. Clendenning, for city of Tulsa..
   PER CURIAM.

This was a conviction, on information charging a violation of a city ordinance defining vagrancy. The city attorney has confessed error, and asks that the judgment of the municipal court of the City of Tulsa be reversed. An examination of the record discloses that the confession of error is well taken, and for insufficiency of the evidence, and upon authority of the case of Campbell v. State, 31 Okla. Cr. 39, 237 P. 133, the judgment of the municipal court is reversed