text:
    WALTER HARDZOG v. STATE.
    No. A-7786.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1107.)

      A. M. Reinwand, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was arrested late in the afternoon of December 4, 1929, upon a charge of unlawful possession of a still, and upon arraignment before the county court of Comanche county, on December 5th, entered his plea of guilty, and immediately thereafter the following judgment and sentence was pronounced by the court:

“Now at this time, the 5th day of December, 1929, the same being a regular judicial day of the October, 1929 term of the county court of Comanche county, state of Oklahoma, the above named defendant appeared and is present before the bar of said court in person for arraignment upon tbe charge contained in the information in said canse, to- wit: Possession of still in violation of law.
“And thereupon said information was read to defendant and he was asked by the court whether he is guilty or not o-f the crime charged and thereupon the defendant, Walter Hardzog, says that he is guilty as charged in said information.
“And thereupon the defendant is asked whether he has any just cause to show why judgment and sentence for said crime be not pronounced against him, and the defendant failed to show any just cause, and it is therefore ordered, adjudged and decreed by the court for said crime he be and he is hereby adjudged to- pay a fine of $50.00 and all costs of his prosecution, taxed at $20.80, and that he be further confined in the county jail of Comanche county, Oklahoma, at hard labor for a period of 30 days from and after this commitment thereto and for such other and further time as shall fully satisfy said fine and costs, in the event the said defendant shall fail to pay the same.
“John Manning, Judge County Court.”

Thereafter, and on the 5th day of December, defendant filed his application to withdraw his plea and enter a plea of not guilty, which application reads as follows:

“Comes now the defendant, Walter Hardzog, and alleges and states as follows:
“1st. That when he was brought before this court this morning and asked the question as to whether he was guilty or not guilty he did not understand that he was answering guilty to- any criminal charge but only as to whether he had the barrels and vat in his possession.
“2nd. This defendant further states that he has not been guilty of any offense against the laws of the state of Oklahoma. That he has not been engaged in violating the prohibitory laws o-f the United States nor of the state o-f Oklahoma; that he wishes to- plead not guilty to the charge upon which he was committed to jail under sentence of the court.
“3rd. Defendant further states that he did not understand the import of the charge nor its serious nature and that he is not guilty of the offense charged and now demands trial on the same; that he had no attorney to advise him in this case; that he was arrested on December 4th at about five o’clock p. m. and brought to the Comanche county jail; that he was brought before the court the next morning, to wit, December 5, 1929, and at the same time without consulting an attorney or being advised of my rights, asked to plead to the charge. Defendant further states that said plea of guilty was entered under a mistaken idea of what it was all about as far as this defendant was concerned.
“Wherefore, I this defendant, Walter Hardzog, respectfully ask and request this court that the plea above mentioned be set aside; that I may be permitted to enter a plea of not guilty in order that I may have a trial to determine my guilt or innocence.
“Walter Hardzog, Defendant.
“Subscribed and sworn to before me this 5th day of December, 1929.
“A. M. Reinwand, Notary Public.”

On the same day the defendant filed his motion for a new trial, among other things, alleging: “That the court erred in not informing defendant of his right to have counsel before being arraigned, and in not asking him if he desired the aid of counsel as required by law.”

The state offered no evidence and made no showing to controvert the claim of the defendant that he was not advised of his rights before he entered the plea of guilty.

In Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930, this court said:

“A plea of guilty should be entirely voluntary, and should be made by one competent to> know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”

In Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298, this court said:

“A motion in a misdemeanor case to withdraw a plea of guilty and to substitute therefor a plea of not guilty is addressed to the sound discretion of the court. Consequently its decision will not be disturbed, unless an abuse of discretion appears.” Kemp v. State, 85 Okla. Cr. 128, 248 Pac. 1116.

It appears from the showing of the defendant that he was about 21 years of age; that he was arrested late in the evening, arraigned on the next morning, and, without knowing the consequences of his plea, without being advised by the court of his constitutional rights, and without being represented by counsel, unadvisedly entered his plea of guilty; and that on the same day he obtained counsel and filed his verified application for leave to withdraw his plea, which application was by the court denied, and thereafter the court overruled his motion for a new trial.

In Fromcke v. State, 37 Okla. Cr. 421, 258 Pac. 927, this court said :

“A defendant in a criminal action should be permitted to' withdraw his plea of guilty, given unadvisedly, either before or after judgment, where any reasonable ground is offered for going to the jury.”

In the case at bar the court should have permitted the defendant to withdraw his plea of guilty and substitute a plea of not guilty, and proceeded with the trial according to law.

For the reasons stated, the cah.se is reversed and remanded.

EDWARDS, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    POLINA CASH v. STATE.
    No. A-7789.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1109.)
    Jas. A. Embry (J. L. Emerick, on the brief), for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Lincoln county of the crime of unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers had a search warrant and upon searching the premises of the defendant they found three quarts of whisky in a small house on defendant’s premises, a half gallon jar of whisky in the kitchen, and a 30-gallon barrel of mash, in a building west of the house, concealed in a feed bin.

The defendant in ber testimony admitted that she owned and was in charge of the premises, but denied that she knew anything about the intoxicating liquor or the mash.

Defendant argues that this evidence is insufficient to support the verdict of the jury.

This contention is without merit.

Defendant next complains of the search and seizure.

The case-made does not contain a copy of the affidavit nor of the search warrant, and there is nothing in the record to indicate that the officers searched any premises other than those described in the search warrant.

No substantial error appearing in the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    CARL HEATH v. STATE.
    No. A-7566.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1111.)
    H. W. Sitton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the penitentiary for one year and one day.

For the purpose of disposing, of this appeal, it will only be necessary to consider one question, viz., that the court erred in failing to give instructions requested by the defendant upon the theory of his defense based on the assumption that his testimony is true.

The evidence of the state was that the officers with a search warrant found the stolen property in the barn of the defendant, but there was no state’s evidence affirmatively connecting him with the larceny.

The evidence of the defendant was that he purchased this set of harness, a pair of mules, a wagon, and some other property at a public sale, and he introduced several witnesses to corroborate his testimony The effect of this testimony was that the defendant purchased the property in good faith, and, if the jury believed this testimony, it was sufficient to create at least a reasonable doubt and entitle the defendant to an acquittal.

This court has repeatedly held that, when requested, the defendant is entitled to have an affirmative instruction on the theory of his defense based on the assumption that defendant’s testimony is true when the same affects a material issue in the case. Crittenden v. State, 13 Okla. Cr. 351, 164 Pac. 675; Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001; Ammons v. State, 28 Okla. Cr. 433, 231 Pac. 326; Pearce v. State, 33 Okla. Cr. 273, 243 Pac. 761.

The defendant requested instructions based upon his theory of the defense, which instructions were refused by the trial court.

The Attorney General in his brief says:

“Perhaps the foregoing requested instructions were not in proper form but they were sufficiently to the point to inform the court of the fact that the defendant desired an affirmative instruction on the defense interposed, based on the assumption that the testimony given by him was true. The trial court gave no instruction whatever on the theory of the defense. Under numerous opinions of this court it has been repeatedly held to be reversible error to refuse to give such requested instruction where there is some evidence reasonably tending, to support the issue.
“For the reasons stated therefore the Attorney General is impelled to confess the error aforesaid, urged in the brief of counsel for plaintiff in error, and if the court entertains the views herein expressed, it necessarily follows that this judgment of conviction must be reversed and the cause remanded for further proceeding.”

An examination of the record convinces the court that the recommendation of the Attorney General should be adopted.

The cause is therefore reversed and remanded for further proceeding according to law.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWAEDS, P. J.

text:
    J. H. TOWNSEND v. STATE.
    No. A-7597.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1112.)

      Clyde L. Andrews and E. E. Eittenhouse, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWAEDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of murder and was sentenced to life imprisonment.

Judgment was entered on April 20, 1929. The appeal was lodged in this court in October, 1929. No briefs in support of the appeal have been filed. Defendant is charged with the murder of his wife, Ethel Townsend. On account of the gravity of the case, we have examined the record with care. It appears that at the time charged defendant and his wife had been married some 19 years and were the parents of four children. They were not living together as husband and wife. Defendant had been away for some time but spent the previous night at the home, sleeping in a bed on the floor with a son about 19 years of age. A Mrs. Cook was there in the morning and some of the children went to school, after which Mrs. Cook left, leaving in the house defendant, his wife, and a baby about 20 months old. Defendant left about 10 o’clock in the morning. The body of Mrs. Townsend was discovered in the house in the afternoon lying on the floor with the skull crushed in two places, the wounds apparently having been inflicted with a blunt instrument. The testimony of the examining physician is that death had occurred from four to ten hours previously. After leaving the house defendant was seen at other places, where he made statements indicating a consciousness of guilt.

The evidence is circumstantial, but sufficient to sustain the judgment. No substantial errors appear in the record.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOHN GULLEY v. STATE.
    No. A-7495.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1113.)
    J. W. Burrow and Perry J. Morris, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Ellis county of a second and subsequent violation of the prohibitory liquor law of the state (Comp. St.- 1921, § 6982 et seq.), and his punishment fixed by the jury at a fine of $50 and imprisonment in the state penitentiary for a period of three years.

The evidence of the state was that the defendant had been convicted in the county court of Ellis county of the crime of unlawful possession of a still and had served a term of 30 days in the county jail and paid a fine of $50, and that thereafter, and on the 14th day of November, 1928, defendant transported three gallons of moonshine whisky from a point in Ellis county unknown to the county attorney to a place on the northwest quarter of section 32, township 21 north, range 25 W- I. M., in Ellis county.

The defendant, testifying for himself, admitted the prior conviction, but denied the possession or transportation of the whisky charged in the information.

Defendant contends, first, that the conviction is based entirely upon the extrajudicial confession of the defendant, without proof aliunde of the corpus delicti.

The evidence of the state was that the defendant brought some whisky and brandy to the home of Alex Deal, one of the state’s witnesses, and said he wanted to leave it in the cellar until night and then come and get it and bury it; that defendant left two kegs and two gunny sacks of bottles; that defendant told him it was whisky and he could smell the odor of whisky; that defendant went to the home of Anna Deal, another of the state’s witnesses, with a three-gallon jug in his car; that defendant accused state’s witnesses of stealing his whisky and brandy out of Deal’s cellar and told them that he had a three-gallon jug of it in his car; that they saw the jug in the car, but did not taste or smell of the contents; that state’s witness, Ales Deal, was in the car with defendant driving from his home to the residence of Anna Deal to talk to her about the supposed stealing of the liquor; that this jug was in the car and was transported during that trip.

In the case of Hildebrandt v. State, 19 Okla. Cr. 80, 197 Pac. 852, this court said:

“The corpus delicti of an offense may be established by circumstantial evidence.”

In the body of the opinion, this court says:

“While the proof of the corpus delicti of the crime is based largely upon circumstantial evidence, it cannot be said, as a matter of law, that there is no competent evidence to sustain the conviction. This court has repeatedly held that, where there is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty of the offense charged, a judgment of conviction will not be set aside because of the insufficiency of the evidence.”

The corpus delicti of the offense may be established by circumstantial evidence. Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287.

It is not necessary that it be proven by direct and positive proof. It may be proven by circumstantial evidence if from all the circumstances the jury are satisfied of the defendant’s guilt beyond a reasonable doubt. Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

While the corpus delicti may not be established by the extrajudicial confession of the accused alone, still the corpus delicti need not be proved beyond a reasonable doubt by evidence other than the admissions and declarations of the accused. People v. Hatch, 163 Cal. 368, 125 Pac. 907; People v. Fong Wot, 63 Cal. App. 677, 219 Pac. 481; State v. Kindle, 71 Mont. 58, 277 Pac. 65; Ashby v. State, 124 Tenn. 684, 139 S. W. 872; State v. Cardwell, 90 Kan. 606, 135 Pac. 597, L. R. A. 1916B, 745.

When the facts and circumstances in evidence in the case at bar are considered in connection with the defendant’s extrajudicial confession, they are sufficient to support a verdict of guilty by the jury.

Defendant next contends that the court erred in overruling his demurrer to the state’s evidence on the ground that there was no proof that the “moonshine whisky,” which it is alleged defendant admitted having, contained more than one-half of 1 per cent, of alcohol measured by volume.

In Latta v. State, 19 Okla. Cr. 441, 200 Pac. 551, this court said:

“In a criminal prosecution for the illegal transportation of spirituous liquor, where it is sufficiently shown that the liquor being transported is whisky, it is not necessary to show specifically that such liquor is intoxicating.”

In the body of the opinion this court said:

“The word 'whisky’ has a well-defined and well-known meaning and indicates per se, an intoxicating liquor.”

In the case of U. S. v. Golden (D. C.) 1 F. (2d) 543, 547, it is said:

“Moonshine whisky is 'whisky’ within meaning of that word as used in National Prohibition Act, Tit. 2, § 1 (27 USO A §§ 4 and 5), providing that the term 'intoxicating liquor’ includes whisky.”

“Moonshine” merely characterizes “whisky” which is intoxicating as a matter of law, and which is illicitly distilled. State v. Sedlacek, 74 Mont. 201, 239 Pac. 1002.

The evidence being sufficient to' support the verdict of the jury and no substantial error appearing upon the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    SAM LEE v. STATE.
    No. A-7563.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1114.)
    Herman S. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Greer county of the crime of unlawfully operating a motor vehicle upon the public highway while under the influence of intoxicating liquor, and upon failure of the jury to agree upon the punishment, the court fixed the same at imprisonment in the penitentiary for a term of one year.

Defendant in his brief says:

“It must be admitted that there was sufficient evidence to warrant the court in submitting the case to the jury. In view of this situation, there is but one question which we desire to submit to the court for consideration, to wit: That the punishment assessed in this case is excessive and should be modified by this court.”

The evidence in tbe case shows an aggravated case of reckless driving by the defendant while he was very drunk. The undisputed evidence is that he was driving his car at a speed of about 30 miles an hour, zigzagging from one side of the public highway to the other, and that when the complaining witnesses, who were driving a car in the opposite direction, attempted to dodge him by turning their car into a ditch, the defendant, being unable to control his car, drove it into their car, and wrecked both of them. Several witnesses called by the state testified that the defendant was very drunk, staggering, and talking incoherently, and that he had with him a half-gallon fruit jar full of whisky and another half-gallon jar about half full, and that he drank out of this latter jar and offered drinks to several other people who were present. The defendant did not take the witness stand and offer to explain his side of the case, if he had any, except to introduce a witness who testified that he did not believe the defendant was drunk, and that the defendant did offer to pay the damages occasioned by the accident.

The Attorney General suggests in his brief that the case is not one that will justify a reduction of punishment.

The defendant while driving his car upon the public highway in this drunken condition was a potential murderer. The trial court in its discretion fixed his punishment at imprisonment for one year in the state penitentiary. The court had heard the evidence and had seen the witnesses and was familiar with the. circumstances surrounding the case, and we cannot say from the record that the sentence imposed is excessive.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    CHARLES ZELLNER et al. v. STATE.
    No. A-7515.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1115.)
    Marvin Shilling, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county of the crime of unlawful possession of a still, and the punishment of the defendant Charles Zellner fixed by the jury at a fine of $100 and imprisonment in the county jail for 30 days, and the punishment of the defendant J. W. Bearden fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers knew where this still was located, and went to it in the afternoon as it was getting dark; that the defendant Zellner’s 12 year old boy was firing the still and Zellner was sitting on the ground near it, beside his grown son; that when they saw the officers they fled over the bank and escaped; while the officers were emptying out the mash and tearing down the still, the defendant Bearden came to' the still.

Defendant Zellner, testifying for himself, admitted that he was at the still; that it belonged to his grown son, who bad escaped from tbe officers, and that be bad known for four or five days where tbe still was, but claimed be went there looking for bis 12 year old boy, who* bad no business fooling around tbe still; and that bis son told him that be and tbe defendant Bearden had put tbe still there. He admitted that be was sitting on tbe bank watching tbe still and that be ran when be saw tbe officers.

Fred Zellner, tbe 12 year old son of tbe defendant Charles Zellner, testified that bis brother’s wife sent him to take a lunch to- bis brother at tbe still, and that bis father came while be was there.

The defendant contends that this evidence is insufficient to support tbe verdict of the jury.

This contention is without merit. Tbe cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    MRS. JIM GOAD v. STATE.
    No. A-7551.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1116.)
    H. H. Edwards, for plaintiff in error.

      Tbe Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Seminole county on a charge of unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 90 days.

Judgment and sentence was pronounced on the 22d day of May, 1929, and the record for appeal was lodged in this court on the 16th day of September, 1929. The record in this case shows that the court gave the plaintiff in error 30 days in which to make and serve case-made and thereafter extended the time for 30 days additional, Avhich time expired on July 22, 1929. No order was made by the trial court extending the time to file the appeal in this case beyond the 60 days provided by law. The appeal was not filed in this court until 115 days after judgment was rendered.

An appeal from a conviction for a misdemeanor must be filed in this court in 60 days, unless the court by proper order extends the time to file such appeal, which in any event cannot exceed 120 days from the date of the rendition of the judgment.

For the reasons stated, the appeal is dismissed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    ANCE TERRY COBB v. STATE.
    No. A-7779.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1118.)

      L. C. McLean and Jno. Y. Roberts, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   EDWARDS, P. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was rendered on November 27, 1929, and the court at the time allowed defendant 60 days in which to make and serve case-made, and 80 in which to file his appeal in the Criminal Court of Appeals. Further extensions of time were granted in which to make and serve case-made, but no further extension in which to file his appeal. The appeal was filed March 24, 1930; more than 80 days from the date of the judgment. An order extending the time to serve a case-made does not automatically extend the time within which to' file the appeal. The appeal in a misdemeanor case must be filed in this court in 60 days from the date of the judgment or within an extension of time granted by the trial judge, not to exceed 60 days additional. Section 2808, Comp. St. 1921. The appeal in this case not having been filed within the time fixed, nor the period of 80 days fixed by the trial judge, this court does not acquire jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ„ concur.


author: PER CURIAM.

text:
    MONTE BLACK v. STATE.
    No. A-7724.
    Opinion Filed Dec. 6, 1930.
    (293 Pac. 1119.)
    Wilkinson & Wilkinson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Stephens county on a charge of having possession of mash fit for distillation, and was sentenced to pay a fine of $300 and to serve 30 days in the county jail.

The only question raised is the sufficiency of the evidence to- sustain the judgment. An examination of the record leaves no doubt as to the sufficiency of the evidence. No purpose would be served by setting out any portion of it.

The case is affirmed.


author: PEE. CUBIAM.

text:
    MEEKS WOODALL v. STATE.
    No. A-7608.
    Opinion Filed Dec. 13, 1930.
    Rehearing Denied Jan. 3, 1931.
    (293 Pac. 1119.)

      M. Bristow, Walter Morris, and B. H. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEE. CUBIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $250 and to serve 60 days in the county ail.

At the time charged, certain officers with a search warrant went to' the premises of defendant and discovered five pints of whisky and 22 gallons of home brew. The charge is for the possession of whisky. There was evidence from which the jury could reasonably find that persons went to this house for the purpose of procuring intoxicants. No reason for a reversal is made to appear. We are of the opinion that under all the record the punishment assessed is too severe and should be modified by reducing to a fine of $150 and 30 days in the county jail.

As so modified, the case is affirmed.


author: DAVENPOBT, J.

text:
    JOE TOBIN v. STATE.
    No. A-7491.
    Opinion Filed Nov. 15, 1930.
    Rehearing Denied Dec. 13, 1930.
    (293 Pac. 575.)

      Cress, Tebbe & Cress, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was charged with the crime of murder; was tried and convicted of manslaughter in the first degree, and his punishment fixed at 10 years in the state penitentiary. Motion for new trial was filed, considered, overruled, and exceptions saved, and the defendant has by case-made and petition in error attached appealed to this court.

The testimony on behalf of the state, in substance, is that the deceased Eoss Hurst was a game warden; that the defendant and his wife were living in Perry, Okla., on the 14th day of September, 1928; the deceased was acquainted with the defendant and his wife, and on the evening of the shooting came to the home of the defendant; that the wife of the defendant desired the deceased to take her to- her brother’s home between Perry and Pawnee; on the road the deceased was driving going to his home in Pawnee; when they arrived at the home of the brother near Morrison, Okla., the wife of the defendant and her brother had a quarrel for some cause not developed by the testimony and the wife requested the deceased to take her back to her home in Perry; they arrived at the Tobin home about midnight.

The testimony further shows that the defendant had no knowledge of where his wife had gone or the purpose of her going, and had no knowledge as to who was with her, if any one; when the defendant returned home about midnight his wife was not at home; soon thereafter an automobile drove up near his home and turned around and went away; from the defendant’s statement it was shown that he believed his wife was in the car. The testimony further shows that, when a second car drove up in the yard near the house of the defendant, the defendant took his shotgun and went out to the car and demanded of the driver that he get out of the car with his hands up;, that the deceased got out of the car with his hands up; after the deceased got out of the car on the running board he threw his hand toward his hip pocket as though to get a gun, and the defendant stated he believed the deceased was going after a gun.

There is no controversy between the state and the defendant as to who fired the shot that took the life of Ross Hurst. The testimony shows that no gun was found in the possession of the deceased; that immediately after the deceased got out of the car the defendant fired the shot that took the life of the deceased. The testimony further tends to show that after the shot was fired the defendant left his residence, and about 4:30 a. m., came to the jail in an intoxicated condition and stated to the sheriff he had gone to a bootlegging joint and drank quite a lot of whisky. The officers who went to the home of the defendant shortly after the shooting claim they found whisky on the table and beer or home-brew in the house.

Edna Highfill, called as a witness by the state in rebuttal, and over the objections of the defendant, was permitted to testify that on the 14th day of September, 1928—

“I knew the defendant Joe Tobin and lived a neighbor to the Tobin family; our home was a short distance from the Tobin home, both of the houses face south; on the night of the 13th, or the morning of the 14th of September, 1928, I was at home with the children; at the time the difficulty took place I was in my bedroom; my bedroom was a southwest room; the Tobin house was on the west side of my house; there was a west window in my room and a south window; the first thing that attracted my attention was a car in front of the Tobin house a few minutes before the shooting took place; after the first car drove in when I first saw the defendant he was at the car and had a gun in his hand; I heard the gun snap and the car left going east; after the car left the defendant stepped back on his own porch and was doing something to his gun; I could see part of his gun; there was a man come out of the house and asked what he was doing with the gun and the defendant replied, ‘I know what I am doing/ that was the only words he said; then the defendant said, ‘I want that man and I am going to get him too.’ The defendant put the gun in the car and left, going east; the man that was talking to him set down on the porch for a few minutes and then went up the road in the direction the cars had gone; later I saw the man that was on the porch and Mr. Tobin return; he made a circle and backed the car up on the west side of the house and got out; after the defendant came back to the porch he sat down on his heels, with his gun on his knees; after that a car came up to the house from the east; as soon as the car was in the yard Mr. Tobin jumped up from the porch and stopped it just as they were making the circle; the car was in the southwest corner of the yard near my house; when the defendant got up from the porch and started toward the car, he said, ‘Halt, stick them up. stick them up. Who' are you, let’s see who you are. Get out of that car and let’s see what you are made of.’ The car was facing the northeast, and the defendant was on the west side of the car from me; the next that happened a shot was fired, and I heard the defendant say, after the shot was fired, ‘Lay there, like the dirty dog you are.’ ”

On cross-examination the witness stated that in talking to- the officers and other persons the next morning she denied she knew anything about the trouble or saw any of it, and stated she did not tell anything she had seen until her husband returned home and she told him.

The defendant testified in his own behalf, stating in substance:

“I knew Boss Hurst in his life time slightly; on September 18th and 14th, 1928, I lived at 819 M street, Perry, Olda.; my house had four rooms and a bath, and fronted south; I slept in the southwest bedroom; there was a door from the porch to this bedroom; the southeast room was what we called the sitting room, or front room; there was no door between the two south rooms; at the time of the trouble I was conducting the O. K. Automobile Wrecking Company, handling new parts and doing repair work; my family consisted of myself and wife who is about 36 years old; she is a sister of John Prentice; on Saturday afternoon before this happened late Wednesday night or Thursday morning I saw Ross Hurst at my house. In the middle of the afternoon Saturday I had occasion to go home for some tools, and Ross Hurst and my wife were in the front room; they wasn’t drinking then but it looked as though they had been, there was a bottle of liquor on the table and glasses; I did not say anything right then to Hurst, I went on to the back room, to where my tools were, and called to her (referring to his wife) to come back there; I asked Hurst if he had any business there; he said he did not know, and I told him, ‘Well, I know and 1 want you to get out of here and not let me catch you here any more.’ John Prentice stayed at my house the following Monday night; we had a conversation about Mr. Hurst and he said he knew Hurst, he was a game warden and a pretty tough bird; I was not drinking any that day; I came home about eight o’clock, my wife was not at home; I remained there a short while and went to the fairground in northeast Perry, where a celebration was going on; I left the fairground about 11:30; I drank no liquor while I was at the fairground; as I was leaving I stepped into some kind of a hole and hurt my ankle; it gave me pain, and I hopped along and asked Jim Wright to drive for me; he took me home and said he would stay there as he had no room and would be paying rent if he went anywhere to sleep; we drove down to the Elite Cafe to get some cigarettes; I saw Ernest Cooper and Emmett Delaney but did not talk to them; when we got home my wife had not returned, Mr. Wright went to bed, and I took off my shoes, socks, and pants and lay down on the bed in the front room; before I went to sleep a car drove up in front of the house, a small car but I could not say it was a Ford; I slipped into my pants and shoes and went out on the porch; the car was driving away when I got out; I hollowed to them to wait a minute I wanted to see them; they apparently did not hear me; I went back and lay down on the bed and probably dropped off to sleep; the next thing I knew there was a car driving in the yard, coming from the east, the car stopped directly in front of my bedroom facing east; while I was slipping my clothes on I heard my wife say something about getting out of the car, and recognized from the tone of her voice she was drinking; I next heard Mr. Hurst ask her when they were going on another jazz party, and she answered, ‘We will have to go in the daytime for my old man is at home at night, and if he knows anything he will just raise hell’; and Hurst said, ‘Don’t worry, if he says anything to me I will kill the son of a bitch,’ or that is the words as near as I can remember; when I went out I took a double barrel 16 gauge hammerless gun with me; when I stepped off the porch I had the gun in position and kept the car covered; I walked up to within six feet of the car and told the man to get out of the car with his hands up, which he did; he got out on the running board with both hands up and leaped sideways down to the ground, lowering his hands at the time reaching for his hip pocket; as he did that I fired; he threw his hands to his hip pocket this way (indicating) ; I fired at his arm not intending to kill him; I did not know he was fatally wounded; I told my wife to get out of the car and go in the house, which she did, and I told the man, who proved to' be Boss Hurst, to get in the car and get out and not let me catch him back there any more; he did not seem to> have any difficulty getting in the car; he went east, the same way he came there; after that I took my gun in the house, took a blanket and pillow and started for the shop; I went down there but I did not stay; when I heard the conversation between my wife and this man I believed they had been out committing acts of adultery; I have not lived with my wife since the shooting; after the shooting I went to a bootlegging joint and got some whisky and took several drinks.”

Jim Wright’s deposition was read, in which he, in substance, stated he met the defendant Joe Tobin in the town of Perry, tbe night of September 13, 1928; he went to the Tobin home from the fair grounds about 11:30, and lay down about 12 o’clock to get some sleep; he had been in bed about 20 minutes when he heard a car come up to the house; Joe Tobin was sober when he got to his house—

“We did not drink anything after we got home; when this car started away I heard some one say something, I did not see any one at this time, I heard someone say, ‘Wait a minute, stop' the car, I want to see you.’ I was in bed at the time; I was in the front end of the house; the remark sounded like it was right at the door, sounded like it came from the porch; I had not heard Mr. Tobin moving around in the house prior to the time I heard the remark, and after we had gone to bed; as near as I can estimate I was asleep an hour or more when I heard the shot that woke me up.”

The testimony in this case is voluminous, but we have set out sufficient testimony to show what occurred at the time of the killing. The transcript covers 555 typewritten pages.

The petition in error of the defendant contains 41 assignments of error alleged to have been committed by the trial court; the defendant in his argument of the errors assigned has presented them under nine propositions of law, which he states fully cover all the specifications set forth in his petition. The first proposition of law that the defendant presents is that, the district court of Noble county having acquired jurisdiction under the Jones commitment, a preliminary attempted to be held in the Wood-bury-Long proceeding was without jurisdiction and void. The defendant in the presentation of the law on this proposition argues that the district court was without jurisdiction, for the reason that a complaint was filed against the defendant Joe Tobin, on September 15, 1928, before E. W. Jones, county judge, charging the homicide of Ross Hurst on the 14th of September, 1928, upon which a preliminary examination was held on the 16th day of October, 1928, after a demurrer to the complaint had been filed and overruled, at which preliminary the defendant was bound over to the district court of Noble county, on a charge of manslaughter, and it is urged by the defendant that by the order of October 16, 1928, the district court immediately acquired jurisdiction of the prosecution, and in support of his contention he cites Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332, and Stamper v. State, 25 Okla. Cr. 324, 220 Pac. 67, and many other cases.

It is not disclosed by the record that the county attorney at any time filed an information in the district court based upon the preliminary examination held before Judge E. W. Jones, wherein the defendant was held to answer to the charge of manslaughter. The record does show that on October 16, 1928, after Judge Jones had held the defendant to answer to the district court on a charge of manslaughter, the county attorney filed a complaint against the defendant with Judge O. L. Woodbury, a justice of the peace from Perry, which complaint was after-wards transferred to Judge O. W. Long, and that Justice Long held the defendant to the district court to answer a charge of murder, for the killing of Ross Hurst. Upon this preliminary hearing, and where the defendant was held to answer to a charge of murder, an information was filed in the district court charging the defendant with the crime of murder.

It is further disclosed that the proceedings of the preliminary hearing before Judge Jones, and also the proceeding had before the examining magistrate, O. W. Long, was filed in the court clerk’s office, prior to the filing of the information charging the defendant with murder, and that no information had been filed in the district court charging the defendant with the crime of manslaughter.

It is argued by the defendant that, when the preliminary hearing was held before Judge Jones and defendant held to answer to the district court upon a charge of manslaughter, the county attorney was without authority to institute a proceeding before another examining magistrate, charging the defendant with the crime of murder, for the reason that the defendant had been given one preliminary examination and had been held to the distinct court upon a charge of manslaughter, and that the examining trial held before O. W. Long, justice of the peace, was without jurisdiction, that the district court could not acquire jurisdiction by the county attorney filing an information based upon the preliminary examination held before O. W. Long as an examining magistrate. The defendant has discussed this question at length, and has cited authorities from different states, which he relies upon to sustain his contention that, when the preliminary examination was held before Judge Jones, the district court acquired jurisdiction, and, as the defendant had been held on a charge of manslaughter, the preliminary hearing before examining magistrate Long was void, and the filing of the proceedings of the examining trial before Judge Long in the district court was without jurisdiction, and that the information filed, predicated upon that preliminary examination, could not confer jurisdiction upon the district court to try the defendant upon a murder charge, as the former preliminary hearing had been held and the defendant held to the district court on a charge of manslaughter.

It is further contended by the defendant that Long was not a justice of the peace, because: First, the town of Billings was under 1,500 population and was not entitled to a justice of tbe peace. Second, that be bad not been appointed by tbe city council of tbe town of Billings, but by the commissioners of Noble county. Third, that at tbe time of tbe transfer of the case be bad not tbe oath of office required to be taken by a justice of tbe peace. It is admitted in tbe record that Long had tbe oath prior to tbe time be held tbe preliminary examination and that be bad not taken tbe oath as justice of the peace at the time tbe case was transferred to' him. However, we bold this is not a matter that could be questioned by tbe defendant since tbe said justice held tbe office as justice of tbe peace of tbe town of Billings under color of title and was in undisputed possession of the office at tbe time be held tbe preliminary examination and bad the right to bear tbe evidence and hold tbe defendant for trial to tbe district court.

In Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, 786, this court in tbe body of tbe opinion said:

“This court will not resort to tbe doctrine of judicial notice as to minor district officers, such as justices of tbe peace, appointed under section 3420, C. O. S. 1921, except where it is necessary to do so in order to properly and correctly determine the controversy. It is a sufficient answer to defendant’s objection to say that the justice of the peace was in possession of tbe office, assuming to act under color of title, and bis acts, therefore, were not subject to collateral attack.”

In Ex parte Hand, 13 Okla. Cr. 614, 166 Pac. 449, in the first and second paragraphs of tbe syllabus, this court said:

“Incorporated towns of less than 1,500 inhabitants are entitled to elect one justice of tbe peace; said justice of the peace has jurisdiction to sit as an examining and committing magistrate in felony cases for offenses com- . mitted within tbe county where such town is located.
“A person in undisputed possession of the office of \ justice of the peace and exercising the functions properly ) belonging thereto under color of title to such office is a } de facto justice of the peace, and his official acts are bind- j ing on the public and third persons.” ¡

The state did not question his title to the office as a de facto justice of the peace, and his official acts are binding upon the public and third persons.

It is also1 urged by the defendant that examining magistrate, Long, even though a regular qualified and acting justice of the peace, had no authority in- this case to commit the said defendant on a charge of murder after a preliminary examination had been had before Judge Jones, and that his acts with reference thereto were void. The defendant in support of his contention has cited a great number of decisions from other states tending to sustain his contention. There are many states that have the rule contrary to the rule laid down by our state. In Kerker v. Superior Court of Pottawatomie County, 38 Okla. Cr. 111, 259 Pac. 146, in the first syllabus, this court said:

“The pendency of an action and the holding of a defendant for trial in one court of the state does not preclude the state from instituting another prosecution for the same offense in a court of concurrent jurisdiction. A plea in abatement or a plea in bar because of the pendency of the prior action will not lie in such latter action.”

Therefore the court did not err in overruling the defendant’s plea in abatement and motion to- quash the information.

The defendant in his second proposition of law contends that examining magistrate, Woodbury, of Perry, was without authority of law to transfer the complaint and papers filed in his court against the defendant, for the rea- ¡ son that be bad lost jurisdiction, and that the jurisdiction vested in the next qualified examining magistrate in the county, and that the action of justice, Woodbury, in transferring the case to O. W. Long, justice of the peace in the Billings district, was without authority of law. We cannot agree with this contention, for the reason that the order transferring the case to justice of the peace, O. W. Long, shows that Judge Jones was disqualified by the county attorney. Justice G. A. Suber’s name being indorsed upon the complaint as a witness, O. W. Long was the nearest justice of the peace qualified under the law. There is no merit in the contention of the defendant as to the transfer from the examining magistrate, Woodbury, to O. W. Long.

After a careful reading of the record and reading of the defendant’s briefs, the third and fourth propositions of law argued by the defendant are included in the first and do not possess sufficient merit to warrant a reversal pf this case.

The fifth proposition presented by the defendant is directed at the action of the court in permitting the transcript of the testimony of C. F. Dowell, given at the preliminary hearing before examining magistrate, O. W. Long, for the reason as contended by the defendant that proper diligence to obtain the presence of the witness was not shown. The record tends to show that the county attorney had a subpoena issued for C. F. Dowell, which had been sent by registered letter to Enid, Garfield county, Okla., the home of the subpoenaed witness, and forwarded to the address of the state witness in Missouri; that a letter was received from the witness, mailed at Curryville, Mo., showing that he was not within the state. We think the showing made by the state was sufficient, and the court did not err in admitting the testimony of the witness.

It is urged by the defendant that the court erred in admitting the testimony of Mrs. Edna Highfill, whose name was not indorsed on the list of witnesses in chief, whose testimony was proper in chief, but not in rebuttal, as a rebuttal witness on the part of the state. The testimony of Mrs. Highfill was testimony that should have been used in chief. However, the question of admitting testimony that would be proper in chief to be used in rebuttal is within the sound discretion of the trial judge, and, unless there has been an abuse of that discretion, the admission of the testimony will not be sufficient to warrant a reversal of the case. The testimony of Mrs. Hig'hfill shows that she lived within a few feet of the home of the defendant where the hilling took place, and at the time of the killing was at home; she then details what she saw and heard.

In the case of Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026, in paragraph 1, subdivision b of the syllabus, the court said:

“The law does not require that the names of witnesses used in rebuttal shall be indorsed on an indictment or information.”

In Pollock v. State, 26 Okla. Cr. 196, 223 Pac. 210, in the seventh paragraph of the syllabus, this court said:

“Where a witness is called by the state and testifies without objection in chief against the defendant, although his name is not indorsed upon the list of witnesses served upon the defendant, and the court upon motion of defendant withdraws the testimony of such witness from consideration by the jury and thereafter permits such witness to testify in rebuttal to' matters of impeachment against the defendant, a proper foundation having been laid for the reception of such evidence in rebuttal, no error was, committed of which the defendant could complain.”

In the body of the opinion it is said:

“In view of the fact that the testimony of the witness here objected to should have been received in chief, and, if in view of the further fact that the matter complained of was material and a proper foundation laid for its reception in rebuttal, we find no error in the action of the court in this respect that would authorize a reversal of this judgment.”

The rights of the defendant were not prejudiced by the court permitting Mrs. Highfill to testify.

The seventh proposition that the defendant complains of is:

“That the court invaded the province of the jury in giving instruction No*. 29, in that he did not submit to the jury the question for their determination as to- whether the deceased at the time of the making of the alleged dying declaration was in articulo mortis and was conscious of his dying condition.”

In this case the defendant admitted the shooting of the deceased, and other testimony tended to corroborate him; the testimony of the defendant, and the testimony of those who heard the shooting and heard the car drive up and leave, was before the jury.

In Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683, this court said:

“When the instructions of the court properly submit all the issues in the case fairly and impartially, it is not necessary to submit additional requested instructions emphasizing some peculiar phase of the case.”

This court has repeatedly held that, where the law contained in the requested instruction is in substance covered in the general charge, it is not error to refuse to give the instruction in the form requested. The instructions of the court must be considered as a whole, and when considered as a whole and together, if they fairly and correctly state the law applicable to the case, they will be sufficient. Groce v. State, 37 Okla. Cr. 345, 257 Pac. 1108; Sherman v. State, 19 Okla. Cr. 269, 200 Pac. 262.

In Tritthart v. State, 35 Okla. Cr. 41, 247 Pac. 1111, paragraph 2 of the syllabus, the court said:

“Where the instructions as a whole, considered and construed together, contain no fundamental error nor misstatement of law calculated to mislead the jury to the injury of the defendant, the judgment will be affirmed.”

The instructions of the court, when considered together, substantially declared the law.

The eighth proposition argued by the defendant is as follows:

“That the trial court erred in giving to the jury instruction No. 24, in that it made the intent of the defendant to provoke the quarrel without any overt act whatsoever sufficient to destroy his right of self-defense.”

The contention of the defendant on this proposition cannot be sustained, for the reason that the evidence in the records tends to show that the defendant in this case, whether with or without justification, went to the car of the deceased with a shotgun in his hand and demanded the deceased to get out of his car with his hands up, and, as the deceased got out of the car with his hands up, the defendant fired the shot that took the life of the deceased. This contention of the defendant is without merit.

The ninth proposition of the defendant is as follows:

“That the court did not correctly instruct on the law of self-defense.”

Considering all the evidence contained in the record, and after carefully reading the instructions given by the court, we bold that the instructions of the court, when considered in their entirety, sufficiently covered the law as applied to the facts in the case. The only testimony in the record tending to show that, when the defendant shot the deceased, he anticipated any. injury from the deceased, is the testimony of the defendant who says that when the deceased jumped from the running board on the ground he made a move with his hands he had up in the air, and he thought he was going to try to draw a pistol and shoot him.

The defendant was accorded a fair and impartial trial. The court substantially declared the law as applied to the facts in the case. No errors appearing in the record sufficient to warrant a reversal, the sentence and judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J. CHAPPELL, J.

text:
    T. D. WALLACE v. STATE.
    No. A-7397.
    Opinion Filed Dec. 13, 1930.
    Dissenting Opinion Dec. 17, 1930.
    (294 Pac. 198.)

      Waldrep & Haight, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of transporting intoxicating liquor, and his punishment was fixed at a fine of $500 and imprisonment in the county jail for 90 days.

The record discloses a state of facts about as follows: Certain officers with a search warrant authorizing them to search a filling station operated by defendant went to the place and made a search. They found nothing. They then left and started back to Shawnee, and about two or three blocks from the filling station they met defendant driving a car. They did not accost him, but turned and followed him east on Highland street some four or five blocks to his residence, where he had stopped by the side of his house. They drove up beside him and asked permission to search his car, which he refused. They then arrested and took him and the car to the police station and proceeded to- procure a search warrant to search the car and found a quantity of whisky in the turtleback. The officers do not testify that there was anything in the appearance or acts of defendant that led them to believe he was violating any law, nor that they had any probable cause, or that they even suspicioned he was transporting intoxicants. Their acts in arresting him so far as their testimony is concerned seem to have been wholly arbitrary. Mr. Budd, one of the officers, testified:

“Q. Mr. Budd, when you and the officers came up to where Mr. Wallace was in the car, and after he refused to let you search his car, you arrested him and took him to the station, the police station, is that correct? A. Yes, sir.
“Q. Put him in jail? A. Yes, sir.
“Q. And after that you say someone got out a search warrant for his car? A. Yes, sir. * * *
“Q. And Mr. Deister got in the car, you say, at the time you first found the defendant Wallace and brought him to the station? A. Yes, sir.”

The testimony of the other officers is substantially the same. The court struck from the jury all testimony of the search of the filling station, but objection to the testimony and motion to strike the testimony of the finding of whisky in his automobile were overruled.

The authority of a peace officer to arrest without a warrant is fixed by section 2471, Comp. Stat. 1921. The right to arrest for misdemeanors is limited to arrest only for a public offense committed or attempted in the presence of the officer. The right to arrest for a felony, or upon charge of a felony, or upon reasonable cause to believe the person arrested to have committed a felony is much broader. Id. The procuring of a search warrant for the automobile of defendant after it had been seized, and after the unlawful arrest and incarceration of defendant, is but an aggravation of the matter, as it tends to show that the officers who made the arrest knew it was illegal. For, if legal, they had the right without a warrant to- search defendant and his immediate surroundings as an incident to the arrest. Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150; Callahan v. State, 42 Okla. Cr. 425, 276 Pac. 494.

It is well settled that, if an arrest is unlawful, the incidental search of the person and immediate surroundings of the person arrested is likewise unlawful. Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177.

The courts are practically unanimous in holding that, where the officer does not know of the act constituting the offense, it is not committed in his presence. Graham et al. v. State, 31 Okla. Cr. 125, 237 Pac. 462; Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424; Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639; Snead v. Bonnoil, 166 N. Y. 325, 59 N. E. 899; Snyder v. U. S. (C. C. A.) 285 F. 1.

The citizenship of this state is strongly committed to the principle of prohibition of the traffic in intoxicating liquor. It is in the Constitution by the voluntary act of the people in a state-wide referendum at the time of the adoption of the Constitution. The Legislature has clarified and supplemented the Constitution; but the Constitution and the law has preserved those fundamental rights of the citizen which protect him from unreasonable search and protect him from arrest on a mere suspicion that he has committed a misdemeanor.

Trafficking in intoxicating liquor is a damnable business. Zeal of the officers in enforcing this or any other law is commendable, but the limitations fixed by the statute on the authority to arrest without a warrant, and the constitutional guaranties against unreasonable searches, must not be destroyed, even though the intent in destroying them may be for a good purpose. Good intentions cannot supersede law. Those who would seek to enforce this law by unlawful means by overriding the fundamental rights and immunities of the citizen serve poorly the cause of prohibition. If officers without a warrant may search the citizen or his automobile, or if, by his refusal upon demand that he submit to such search, he may be unlawfully arrested and incarcerated and his automobile searched, what becomes of the provision of the law against unlawful arrest or the provision of the Bill of Rights against unlawful searches, article 2, § 30? If the arrest in this case and the subsequent search can be justified, any person, whether he be pedestrian or one operating an automobile, must either submit to search on demand of some petty officer, or be subject to unlawful arrest and subsequent search; then, if liquor be discovered, the search will be legal. Such is not the law; the guaranty against an unreasonable search applies as well to one justly suspected as to one unjustly suspected. U. S. v. Kaplan (D. C.) 286 F. 963; Garske v. U. S. (C. C. A.) 1 F. (2d) 620; Jokosh v. State, 181 Wis. 160, 193 N. W. 976; People v. Jakira, 118 Misc. Rep. 303, 193 N. Y. S. 306; State v. Distinct Ct., 70 Mont. 191, 224 Pac. 862. To say the proceeding here complained of is illegal is putting it mildly. Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Amos v. U. S., 255 U. S., 313, 41 S. Ct. 266, 65 L. Ed. 654; U. S. v. Slusser (D. C.) 270 F. 818.

In the case of Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 285, 69 L. Ed. 543, 39 A. L. R. 790, sometimes relied upon to justify search without a warrant, Chief Justice Taft said:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”

Upon a consideration of the whole case, it is clear that the arrest of defendant was illegal and the search of his person and automobile as an incident thereto illegal. The evidence thus obtained was not admissible.

DAVENPORT, J., concurs.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion in this case, for the reason that the officers had a legal right to arrest defendant.

The evidence of the state was that the officers procured a search warrant to search the defendant’s filling station at 1001 East Highland, in Shawnee. They went to this filling station, but did not find the defendant there, and upon searching it found no liquor. The officers left the filling station and went two or three blocks and met the defendant in a car at the corner of Highland and Tucker streets, and followed him east on Highland four or five blocks; that defendant stopped his car on the east side of his residence at 1085 East Highland; that, when defendant refused to permit the officers to search his car, they arrested him and took him and his car to the police station, Avhere they obtained a search warrant for the car, and upon its search they found concealed in the car a 10-gallon keg and a half-gallon fruit jar of whisky. The state introduced this through the witness P. A. Budd, without objection upon the part of the defendant. At the conclusion of the cross-examination of this witness, defendant moved to strike this evidence and take it away from the jury because it was obtained by an unlawful search and seizure of Ms car. Defendant did not take the witness stand and makes only this technical defense.

The first question to be determined in this case is, Was the arrest of defendant illegal under section 2471, C. O. S. 1921, and the Constitution and laws of the United States, where he is suspected of the commission, of a misdemeanor by a violation of the liquor laws? The majority opinion says yes.

To properly consider the question, it will be necessary to review the authorities:

Clause 2, art. 6, of the Constitution of the United States provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Section 1, art. 1, of the Constitution of Oklahoma provides :

“The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.”

There is a marked contrast between these declarations of) constitutional supremacy and the language of this court in the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, wherein this court said:

“A rule of evidence established by the Supreme Court of the United States, relating to evidence illegally obtained by officers or agents of the court, by means of an illegal search and seizure, or against compelling an accused to be a witness against himself, is not binding on state courts in cases relating to like seizures in violation of like provisions in state Constitutions, but will, in the interest of uniformity of decisions, be highly persuasive.”

It is true that the principle of federal supremacy is obnoxious to many individuals, and sometimes even to the courts, yet the fact remains, nevertheless, that the Constitution and laws of the United States are supreme.

Cornelius on Search and Seizure, page 222, § 60, says:

“The Eighteenth Amendment to the Constitution of the United States prohibiting the manufacture, sale or transportation of intoxicating liquors, or the importation thereof into; or the exportation thereof from, the United States, for beverage purposes, being prohibited and by section 2, article 2 of the Constitution providing that the Constitution and the laws of the United States made in pursuance thereof * * * shall be the supreme law of the land, the courts have held that in order to have these sections harmoniously related, the national Legislature is paramount and the state law, when it conflicts, must yield” —citing Rhode Island v. Palmer, 253 U. S. 350, 40 S. Ct. 486, 588, 64 L. Ed. 946; United States v. Peterson (D. C.) 268 P. 864.

The Constitution of the United States being expressly made the supreme law of the land, and it being therein expressly provided that the judges in every state shall be bound thereby, and the state of Oklahoma having in section 1, article 1, supra, expressly agreed that the Constitution of the United States is the supreme law of the land, this court is bound by such Constitution and the laws passed by authority thereof and the interpretation placed thereon by the courts of the United States.

Paragraph 1 of the syllabus in the majority opinion is as follows:

“A peace officer may arrest without a warrant in the case of a misdemeanor only where it is committed or attempted in Ms presence. (Section 2471, Comp. Stat. 1921.)”
In Carroll v. United States, 267 U. S. 132, at page 156, 45 S. Ct. 280, 286, 69 L. Ed. 543, 39 A. L. R. 790, Mr. Chief Justice Taft, speaking for the court, said:
“But we are pressed with the argument that if the search of the automobile discloses the presence of liquor and leads under the statute to the arrest of the person in charge of the automobile, the right of seizure should be limited by the common-law rule as to the circumstances justifying an arrest without a warrant for a misdemeanor. The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. Kurtz v. Moffitt, 115 U. S. 487, 6 S. Ct. 148, 29 L. Ed. 458; John Bad Elk v. United States, 177 U. S. 529, 20 S. Ct. 729, 44 L. Ed. 874. The rule is sometimes expressed as follows:
“ Tn cases of misdemeanor, a peace officer like a private person has at common law no. power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.7 * * *
“The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephen, History of Criminal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant. * * * The argument for defendants is that as the misdemeanor to' justify arrest without warrant must be committed in the presence of the police officer, the offense is not committed in his presence unless he can by his senses detect that the liquor is being transported, no matter how reliable his previous information by wbicli be can identify tbe automobile as loaded with it.
“So it is that under tbe rule contended for by de- j fendants tbe liquor if carried by one who bas been already twice convicted of tbe same offense may be seized on in- \ formation other than the senses, while if be bas been only ,! once convicted it may not be seized unless the presence of ■ tbe liquor is detected by tbe senses as tbe automobile concealing it rushes by. This is certainly a very unsatisfactory line of difference when tbe main object of tbe section is to forfeit and suppress the liquor, tbe arrest of tbe individual being only incidental as shown by tbe lightness of tbe penalty. * * *
“Tbe argument of defendants is based on tbe theory that tbe seizure in this case can only be thus justified. If I their theory were sound, their conclusion would be. Tbe validity of tbe seizure then would turn wholly on the validity of the arrest without a seizure. But tbe theory is unsound. The right to search and tbe validity of tbe seizure are not dependent on the right to arrest. They are dependent on tbe reasonable cause tbe seizing officer bas for belief that tbe contents of the automobile offend against tbe law. * * *
“This conclusion is in keeping with the requirements of the Fourth Amendment and tbe principles of search and seizure of contraband forfeitable property; and it is a wise one because it leaves tbe rule one which is easily applied and understood and is uniform.”

Thus it will be seen that under clause 2, art. 6, supra, and tbe authority of Carroll v. United States, supra, section 2471, C. O. S. 1921, relied upon by this court for tbe rule stated in paragraph 1 of the syllabus, is not in force in so far as it restricts tbe right of officers to arrest only where the misdemeanor is committed in their presence for a violation of the prohibition laws of the United States or the state of Oklahoma.

It may be contended that the authorities here cited have no application, except to cases arising in the federal court, and that, since this is a case under the state law, the majority opinion is correct. If this be so, then the language of clause 2, art. 6, supra, “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding” is wholly meaningless. The language of this section reaches not only the state and every state law, but it reaches the mouth and hand of every judge and ties them and binds them to declare void or inoperative any law of the state which contravenes “the supreme law of the land.”

It is freely conceded that the officers of the state under section 2471, supra, may arrest for a misdemeanor only when it is committed in their presence, except in those cases where the Constitution of the United States and the laws thereof and the decisions of the Supreme Court of the United States provide otherwise. But since the Supreme Court of the United States in interpreting the Constitution and laws of the United States has said that the officer has the same right to1 make arrest for misdemeanors as for felonies where the same are violations of the Eighteenth Amendment and the laws enacted for the enforcement thereof, section 2471, supra, does not limit the right to arrest for liquor law violations.

I cannot agree with the majority opinion for another reason, namely, because under the facts as disclosed by the state’s testimony the officers had a right to seize the ' ear and search the same without a search warrant.

Shortly after the adoption of the Fourth Amendment to the Constitution of the United States, the Supreme iCourt of the United States began to make a distinction between searching the home or place of business for that which the defendant might lawfully possess and for the search of vessels and other moving vehicles for that which the defendant might not lawfully possess.

In Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 528, 29 L. Ed. 746, that court said:

“The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo.”

In the case of Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, it was held that the court in a criminal prosecution could not retain letters of the accused seized in his house, in his absence, and without his authority, by a United States Marshal without any warrant for his arrest and none for the search of his premises, to be used as evidence against him, the accused having made timely application to- the court for an order for the return of the letters. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647.

On the other hand, the same court in Carroll v. United States, supra, said:

“The Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official Warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * *
“The intent of Congress to make a distinction between the necessity for a search warrant in the searching of private dwellings and in that of automobiles and other road vehicles in the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that it is. The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.”

After a full discussion of this subject and the citation of numerous authorities, the court further says:

“Search without a warrant of an automobile, and seizure therein of liquor subject to seizure and destruction under the Prohibition Act, do not violate the Amendment, if made upon probable cause, i. e., upon a belief, reasonably arising out of circumstances known to the officer, that the vehicle contains such contraband liquor. * * *
“The seizure is legal if the officer, in stopping and searching the vehicle, has reasonable or probable cause for believing that contraband liquor is being illegally transported in it.”

Under the Constitution and laws of the United States and the Constitution and laws of the state of Oklahoma, intoxicating liquor is contraband and is by the express provisions of the laws of Oklahoma declared not to be property.

The difficulty with the Criminal Court of Appeals is that it does not distinguish between the limitations imposed on search and seizure for those things which a man may legally possess and those things which he may not legally possess. This idea is best illustrated in the case of Gore v. State, 24 Okla. Cr. 349, 218 Pac. 545, 548, where this court says:

“The claim that the character of the things seized in this case, being parts of a still, materials from which whisky could be made, * * * would bring this case within the exception above mentioned, as being within the same class as counterfeit coin, burglars’ tools, and implements of gambling, cannot be sustained for two' reasons: First, because whatever their classification may be, they were not seized according to law; and, second, because it is manifest from this record that the purpose of the seizure was not to condemn or destroy the property, as provided by our prohibitory liquor law, but was solely for the purpose of introducing the articles in evidence.”

The authority cited to support the rule laid down in Gore v. State, supra, is the case of Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, but the facts in that case were that the officers seized the private papers of the defendant, which h© had a legal right to have, for the purpose of using them as evidence against him. The court nowhere held in that case that the articles seized which were unlawful for the defendant to have, and which might be used as evidence against him, could not be legally seized under circumstances like the case at bar, without a search warrant.

It was proper for the Criminal Court of Appeals to follow Gouled v. United States, supra, so far as the same applied to the articles which a person might legally have, but the case was no authority when applied to the seizure of intoxicating liquors.

Another illustration is found in the case of Childress v. State, 31 Okla. Cr. 208, 238 Pac. 218, wherein this court said:

“To make arrest and seizure without warrant, under Comp. St. 1921, § 7014 there must be violation of prohibitory liquor laws in presence of arresting officers, and conviction must be reversed, if evidence procured by officer by means of unauthorized search and seizure is admitted over objections of the accused.”

The facts in the Childress Case were that the officers met the defendants in the road and stopped their car; that one of the defendants jumped out of the car and ran around behind the car and broke a jug containing whisky over the back of the car; the officer followed him around the car and picked up the broken jug after he had cast it away from him and found some liquor yet remaining in the broken jug.

In Carroll v. United States, supra, the opinion was rendered March 2, 1925. The opinion in the Childress Case was rendered July 15, 1925. In the Childress Case this court not only neglected to follow the rule laid down in Carroll v. United States, supra, but actually enunciated a rule diametrically opposed to it. It was not even “persuasive.”

My criticism of the majority opinion in the case at bar is that it takes no account of the exception laid down in Carroll v. United States, supra, and goes back and recognizes the rule laid down in Childress v. State, supra.

Both Gore v. State, supra, and Childress v. State, supra, are in direct conflict with the Constitution and the laws of the United States and the decisions of the Supreme Court of the United States and this court ought now to correct the error made in those cases and go back and follow the more sane and reasonable' rule enunciated in Carroll v. United States, supra.

This court has said in Gore v. State and Childress v. State that the officers must not make a search without a valid search warrant. In the case at bar the officers, in an honest attempt to meet the requirements laid upon them by court, detained the defendant, and out of an abundance of caution obtained a search warrant for the car. This court now goes one step farther and says to every peace officer in this state, “Your hands are tied; unless you actually know there is liquor in the car you cannot detain the defendant while you get a warrant, but must let him alone,” even though he gets beyond the jurisdiction of the officers and even outside of the state before you can possibly obtain the search warrant. Such a ruling ties the hands of the officers and destroys the right to search a moving vehicle.

In the case at bar the court quotes from that part of Carroll v. United States, supra, which condemns the indiscriminate and unauthorized search of automobiles, in support of the majority opinion.

The question of indiscriminate search of automobiles without a search warrant is not in this case and the quotation is no authority for the court’s holding. If the majority opinion accepted the rule laid down in that case, which says that officers possessing information that would cause an ordinarily prudent man to act, may search an automobile without a search warrant, then the case would have been affirmed, and it would not be necessary to file a dissenting opinion. But, since the majority opinion refuses to sustain the conviction, I can only enter my protest and announce the views stated herein.

For the reasons stated, I dissent from the majority opinion of the court.


text:
    ASA FORTNEY v. STATE.
    No. A-7760.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 1119.)
    John Y. Roberts and John A. Remy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Logan county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

No briefs in support of the appeal have been filed. At the time the case was assigned for argument, defendant’s counsel appeared and stated they desired to abandon the appeal and asked that the court affirm the judgment.

The case is affirmed.


author: DAVENPORT, J.

text:
    A. B. JEAN v. STATE.
    No. A-7647.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 653.)

      Clay Snodgrass and W. M. Williams, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plain tiff in error, hereinafter referred to as the defendant, was convicted of selling one gallon of whisky, and was sentenced to pay a fine of §100 and serve 30 days in the county jail.

Earl Fennel and Walter Norris testified they went to the home of the defendant the evening of February 22, 1929, and Earl Fennel bought a gallon of whisky from the defendant, for which he paid §5. Fennel admits he was hired by the sheriff and furnished money to go out and detect parties who1 are suspected of selling whisky, and admitted he had been convicted of larceny and served a term in the Texas penitentiary. Walter Norris corroborated Fennel as to the purchase of the whisky. The defendant denies he sold the prosecuting witness Fennel whisky, and for his defense he pleads an alibi that he was not at home on the date the prosecuting witness alleges the whisky was purchased from the defendant, and called several witnesses who testified they accompanied the defendant and his wife to Altus, where they attended a meeting of the League of Young Democrats.

The defendant assigns three errors, the first being, that the court erred in refusing to quash the jury panel upon the timely motion made by the defendant. An examination of the record shows that, after the jury had been impaneled and several cases tried, the court discharged the following jurors: A. T. Stephenson, L. W. Hager, and S. York, from the regular panel that had been duly selected, impaneled, and sworn for the term, without assigning any reason therefor. The defendant urges that the two jurors, Hager and York, were discharged, because they had sat in the trial of a man named Parker, wlm was charged with a crime, and hung the jury, voting for an acquittal, and that the court in his desire to see the de fendant convicted discharged the two jurors from the panel. The contention of the defendant is not borne out by the record. The record shows that the jurors were discharged, but does not show the reason why they were discharged, and there is no contention of the defendant that he was deprived of a fair and impartial trial by reason of the jurors mentioned being discharged. The motion of the defendant to discharge the panél was properly overruled.

The second and third assignments relate to the insufficiency of the evidence to sustain the verdict of the jury. The testimony is conflicting. The state’s witnesses swear positively they bought the whisky from the defendant. The defendant says he did not sell any whisky, for the reason that he was not at home at the time the state’s witnesses say they bought the whisky, but was away from home with other witnesses who testify in this case they attended a meeting of the League of Young Democrats at Altus. It has been the universal holding of this court that, where there was any competent testimony to go to the jury, though the testimony was conflicting, this court would not disturb the verdict of the jury.

The defendant was accorded a fair and impartial trial. The court properly advised the jury as to the law applicable to tbe facts in this case. There are no errors in tbe record sufficient to warrant a reversal. Tbe judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.