text:
    J. L. HENLEY v. STATE.
    No. A-9506.
    June 9, 1939.
    (91 P. 2d 685.)

      Melone, Porter & Melone, of El Reno, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and S. T. Roberson, Co. Atty., of El Reno, for the State.
   BAREFOOT, J.

Defendant was charged with the crime of assault with intent to kill, in Canadian county; was tried, convicted of assault with a dangerous weapon, and sentenced to serve three years in the penitentiary, and has appealed.

The record in this case was filed in this court on May 2, 1938. On September 18th, defendant was given an additional 15 days to file a brief. The case was set for oral argument on October 25, 1938, and at this time, no one appearing, the case was submitted on the record, and an order entered giving defendant an additional 20 days to file a brief. No brief has been filed.

Under the decisions of this court, where defendant files no brief, and makes no appearance when the case is called for submission, and an examination of the record discloses no merit in the errors assigned, the judgment will be affirmed. Walker v. State, 60 Okla. Cr. 302, 64 P. 2d 935; Hickman v. State, 60 Okla. Cr. 417, 65 P. 2d 211; Noble v. State, 39 Okla. Cr. 19, 262 P. 707; Hudson v. State, 28 Okla. Cr. 369, 230 P. 940; Shelton v. State, 41 Okla. Cr. 220, 271 P. 262; Justice v. State, 41 Okla. Cr. 136, 271 P. 860; Robinson v. State, 60 Okla. Cr. 443, 65 P. 2d 212.

We have carefully read the record, examined the information, and instructions given by the court. We have found no fundamental error. The information was in proper form. The instructions of the court covered every phase of the law, and were as favorable to defendant as could be expected.

The evidence reveals that defendant was charged with assault with intent to kill Marion Thompson by shooting him with a pistol. It further revealed that defendant and prosecuting witness were farmers living on the same quarter section of land as tenants of the same landlord. Their relations had been friendly until August 18, 1936, when defendant appeared near the home of the prosecuting witness, and had some words with his wife, and a neighboring lady, in reference to some small items of property that had been loaned. The prosecuting witness appeared, and after some words, he testified that defendant pulled a gun from his pocket and threatened to kill him. Defendant claimed that the prosecuting witness attempted to assault him, and that he did not draw a gun. Some bad feeling existed and defendant made an effort to secure a “peace bond,” which he failed to get, and he purchased a gun which he carried in his car practically all of the time until the 14th day of April, 1937, at which time defendant was working in his field, and the prosecuting witness was also working nearby with his landlord and another party. When the work was finished about 6 o’clock, the prosecuting witness started home, driving his team to a plow, and with a spade in his hand. He was met in the road by defendant, who had left his team some 100 yards distance. The prosecuting witness testified that defendant shot him without cause or provocation, and with no demonstration on his part. The defendant claimed he was being attacked with the spade by the prosecuting witness.

The jury evidently believed the evidence of the state, and returned a verdict finding defendant guilty of assault with a dangerous weapon, and assessing his punishment at three years in the penitentiary. The evidence fully sustains the verdict. As a result of the injury, the prosecuting witness was forced to have his leg amputated.

We have carefully examined the record, the information, and the instructions of the court, and find no fundamental error was committed. The defendant had a fair and impartial trial, and we are of the opinion that the judgment of the district court of Canadian county should be affirmed, and it is so ordered.

DOYLE, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    TOM GILROY v. STATE.
    No. A-9466.
    June 9, 1939.
    (91 P. 2d 683.)
    Phillips & Long, of Okemah, and Anglin & Stevenson, of Holdenville, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Jess I. Miracle, Co. Atty., of Okemah, for the State.
   BAREFOOT, J.

Defendant was charged in the district court of Okfuskee county with the larceny of domestic animals; was tried, convicted, and sentenced to serve a term of four years in the penitentiary, and has appealed.

As grounds for reversal it is contended:

First, that the court erred in admitting incompetent, irrelevant, and immaterial testimony.

Second, that the court erred in refusing to admit competent testimony offered by the defendant.

Third, the error of the court in failing to instruct the jury as to the law applicable to the defense of the defendant.

The defendant in this case was charged with the larceny of a “roan muley bull calf,” the property of Mrs. W. T. Coggburn, who was a widow, living with her two grown sons in Okfuskee county. The evidence reveals that the animal was taken from her premises on a Sunday night, November 9, 1986. The wires had been cut in two different places. The animal had been led across a field, and onto the highway, where it was loaded into a truck, by letting down of the hind end of said truck and loading the animal therein. The hide of this animal was after-wards discovered in a hide house at Henryetta, and was identified by the son of Mrs. Coggburn, who had made an extended investigation of the loss of the animal together with the local officers. It is unnecessary to give an extended discussion of the facts. Many circumstances were given by the witnesses in the way of tracks, impressions of the truck where the calf was loaded, etc. The party who sold the hide at Henryetta testified to having bought the animal from defendant, and having butchered it and sold the hide.

Defendant was arrested and placed in jail. He contended he had bought the calf from an unknown stranger by the name of “Jimmie,” whom he had met on several different occasions at public sales at Okmulgee and Henry-etta. He claimed that some time prior thereto he had bought a casing for this party paying $16 therefor; that he afterwards met him and asked him to pay this amount; that this stranger said he did not have the money, but could get a calf from his sister, who lived in Seminole county, and pay him in that way, and that defendant loaned him his Ford pick-up, and when he returned he had the calf, which he turned to defendant, and which defendant sold as above stated.

There were quite a number of conflicts in the testimony, and especially with reference to contradictory statements made by defendant to the officers and to others; it being contended that defendant claimed that he had raised the calf and had just gotten it from the pasture, which he denied. All of this conflicting evidence was heard by the jury, and they, after due deliberation, returned a verdict of guilty against the defendant. Under the law they had the right to believe the explanation offered by the defendant as to his possession of the animal, but they were not bound to accept his theory. Michelin v. State, 66 Okla. Cr. 241, 90 P. 2d 1081; Davis v. State, 7 Okla. Cr. 322, 123 P. 560. The proof revealed many circumstances which justified the jury in finding defendant guilty. It also showed that defendant had been previously convicted of larceny. Under the many decisions of this court, in cases of this character, it has always been held that the jury is in a better position to pass upon the guilt or innocence of the defendant than is the appellate court. McCarron v. State, 61 Okla. Cr. 264, 67 P. 2d 461; Scott v. State, 65 Okla. Cr. 47, 82 P. 2d 684; Gourley v. State, 49 Okla. Cr. 24, 292 P. 873; Halbert v. State, 35 Okla. Cr. 329, 250 P. 436; Simpson v. State, 52 Okla. Cr. 311, 4 P. 2d 126; Brents v. State, 53 Okla. Cr. 26, 6 P. 2d 1080; Hayes v. State, 61 Okla. Cr. 105, 65 P. 2d 1242; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; Foust v. State, 36 Okla. Cr. 390, 254 P. 982.

The contention that the court admitted incompetent, irrelevant, and immaterial testimony has been carefully considered. It is first contended that the court erred in permitting the witness J. T. McAtee to testify that he had purchased a part of the meat from the witness Kennedy to whom the defendant had sold the same, for the reason that he was not qualified to answer the same. There is no merit in this contention.

It is next contended that the court erred in permitting the state to introduce the ear of the calf in evidence. We find no error in this. State v. Frisby, 49 Utah, 227, 162 P. 616.

It is also contended that the court erred in permitting the introduction of certain “imprints,” which were taken from the ground, and compared with the boots taken from the possession of defendant, for the reason that the witness was not shown to be an “expert.” We do not consider it was necessary to be an expert to make this comparison.

The second contention, that the court erred in refusing to admit competent testimony, is based upon the refusal of the court to permit the introduction of certain statements which defendant made to the jailor at the time he was arrested, and which were several days after the alleged taking of the calf. These were denied by the court because they were self-serving declarations, and this ruling of the court was proper.

The third contention of defendant, that the court erred in failing to instruct the jury as to the law applicable to the defense of the defendant, cannot be sustained. The defendant did not take an exception to the instructions given by the court. No requested instructions were asked by defendant. We have carefuly examined the instructions and they fully covered the law of the case. The court gave an excellent charge upon the law of circumstantial evidence. An examination of the record reveals that defendant was ably defended. If the jury had only believed his theory of the case, he would have been acquitted. The court was very fair in permitting the introduction of testimony by defendant, and only in one instance, as above noted, was the evidence which he offered rejected. The defendant had a fair and impartial trial.

For the reasons above stated, the judgment' of the district court of Okfuskee county is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.

text:
    Ex parte W. H. DAVIS.
    No. A-9649.
    June 14, 1939.
    (91 P. 2d 799.)

      On the same day the case was orally argued by W. L. Coffey and A. Langley Coffey, for petitioner, and Sam H. Lattimore, Assistant Attorney General, for respondent.
    Coffey & Coffey, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms, Asst. Co. Atty., both of Tulsa, for respondent.
   DOYLE, P. J.

This application for a writ of habeas corpus is brought to secure the release of petitioner being held in custody of the sheriff of Tulsa county, at Tulsa, where he is incarcerated and confined in the county jail by virtue of a commitment based upon an information pending and undetermined in the common pleas court of Tulsa county, wherein the petitioner is charged with having violated section 7 of House Bill No. 125, of the Seventeenth Legislature, ch. 15, art. 3, page 10, Session Laws 1939, 21 Okla. St. Ann. § 970.

Upon the return day the case was orally argued and submitted upon the petition and the demurrer thereto.

This application involves the validity under the State and Federal Constitutions of House Bill No. 125, ch. 15, art. 3, page 8, et seq., Sess. Laws 1939, 21 Okla. St. Ann. § 964 et seq., being the statute under which the information in the court below is based.

Counsel for petitioner in their brief say:

“We have asked this court to consider the constitutionality of this act from several standpoints, both as to its form and application. We believe that it is unconstitutional because on its face it is so indefinite and uncertain as to its terms as to make it impossible to ascertain the legislative intent, and because it is so general in its terms as to render it capable of an arbitrary and capricious application; it is repugnant to and violates section 7 of article 2 of the Constitution of the state of Oklahoma in that it amounts to the taking of property without due process of law.
“It is contrary to and in violation of section 57 of article 5 of the Constitution of the state of Oklahoma in that the subject of said act is not clearly expressed in its title and embraces more than one subject.
“With regards to the petitioner’s machine, we want to stress that it is entirely free of the elements of chance and hazard. As heretofore stated the player pays a consideration for the privilege of playing, or entertaining himself at a game which appeals to the competitive spirit which is possessed by us all.”

No brief was filed on the part of respondent.

The information upon which the commitment issued charges that on the 15th day of May, 1939, W. H. Davis: “did unlawfully, willfully and knowingly set up, operate, conduct and permitted to be set up, operated and conducted one certain slot machine, to wit: A Cenco Marble Board at 526 South Main street in the city of Tulsa, same being a place of business for the purpose for having and allowing same to be played by others for money, property, currency, checks, chips, tokens, credits and other representatives of value in violation of Section 7 of House Bill 125 of the 17th Legislature of the State of Oklahoma, contrary to” etc.

Section 7 of the act in question reads as follows:

“Section 7. Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted, in or about any place of business, or in or about any place, whether as owner, employee or agent, any slot machine for the purpose of having or allowing same to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement or any representative of value or a thing of value, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars, or by imprisonment in the county jail for a term of not more than sixty (60) days, or by both such fine and imprisonment.”

No ambiguity patent or latent appears to us in this section of the statute. The language is explicit; its meaning unmistakable.

In behalf of respondent the point is made that where imprisonment is under the judgment of a court of competent jurisdiction, such judgment cannot be attacked collaterally, or the proceedings inquired into in a habeas corpus proceeding, and this court is precluded from inquiring into the facts alleged in the petition by the provisions of the habeas corpus act, chapter 3, art. 4, sec. 693, 12 Okla. St. Ann. § 1342, which reads:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * *
“Fourth. Upon a warrant or commitment • issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

Section 10 of the Bill of Rights, Okla. St. Ann. Const., provides:

“The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.”

It is well settled, by numerous decisions of this and other courts, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by legislative action, and under the constitutional guaranty, the cases within the relief afforded by the writ at common law cannot be placed beyond its reach and remedial action by statute. A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act, and jurisdiction of the person and of the subject-matter is not alone conclusive, but the jurisdiction of the court to render the particular judgment or issue the process is a proper subject of inquiry; and the proceedings of the committing court will be examined so far as necessary to determine the question of jurisdiction. If there was no legal power to render the judgment, or issue the process, there was no court of competent jurisdiction, and consequently no judgment or process. All is coram non judice, and void. Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

Where personal liberty is concerned, the judgment and process of a court affecting it is not so conclusive but that the question of its authority to imprison the party may be reviewed on habeas corpus by a court or judge having power to award the writ. Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759.

It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing acts of courts of record, where they acted within their jurisdiction, under a constitutional law, any error committed can only be reviewed on an appeal, and it cannot be used as a substitute for an appeal.

Before the writ is available as a means of release from imprisonment, it must appear that the court issuing the process has acted without jurisdiction.

In this cage the validity of the commitment is assailed on the ground that the act of the Legislature upon which the information was based is unconstitutional. If the position is well taken, it affects the jurisdiction of the whole proceedings. An unconstitutional law is void, and is no law. An offense created by it is not a crime, and a charge based thereon cannot be a legal cause of imprisonment.

We are reminded by counsel for petitioner that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against arbitrary power; that is unquestionably 'true. This court is bound to sustain the fundamental law, the state Constitution, according to its true intent and meaning. But it is equally true that legislative enactments should be enforced by the courts as embodying the will of the people, unless they are plainly inconsistent with that instrument.

In McCord v. State, 2 Okla. Cr. 214, 101 P. 280, we said:

“To justify a court in declaring an act of the Legislature void, it is not enough that the statute goes to the verge of constitutional power. It must appear clearly that it goes beyond the power. In case of doubt, the law must be sustained.”

In State v. Coyle, 7 Okla. Cr. 50, 122 P. 243, we said:

“Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.”

In Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179, it is said:

“Every presumption must be indulged in favor of the constitutionality of an act of the Legislature; and courts will not declare any law unconstitutional, unless they find that it is irreconcilable with the Constitution.”

In Patterson v. State, 7 Okla. Cr. 497, 124 P. 942, we said:

“The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state.”

In re Ambler, 11 Okla. Cr. 449, 148 P. 1061, it is said:

“If the statute upon which a judgment is based is valid, and the court has jurisdiction of the person and subject-matter, the writ should be denied.”

In Leach v. State, 17 Okla. Cr. 322, 188 P. 118, it is said:

“It is well established that no enactment of the Legislature should be held to be in contravention of the Constitution, unless its unconstitutionality is made to appear beyond any reasonable doubt.”

In State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77, 78, we said:

“Nothing but a clear violation of the Constitution, federal or state, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void.”

It is contended that this act is in violation of section 57, art. 5, of the Constitution, providing that:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title.”

This provision of the Constitution has been considered and construed by the appellate courts of this state in numerous cases, and the established rule is that the title to an act may be general and need not specify every clause in the statute; it being sufficient if the various provisions are referable to and cognate to the subject expressed. State v. Wheatley, 20 Okla. Cr. 28, 200 P. 1004, and cases cited. Smith v. State, 47 Okla. Cr. 184, 287 P. 835.

In Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066, this court held:

“It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient if the title contains a reasonable intimation of the matters under legislative consideration.”

The opinion cites numerous cases supporting this rule from states having constitutional provisions substantially identical with this section of the Constitution of this state.

It is to be observed that under the police power, every state has the right to determine what is dangerous and injurious to the public health, public morals, and the public welfare, of its inhabitants. However, the police power is not to be invoked where the subject to which it is directed has no substantial relation to those objects, or for a matter which by law no person ought to be punished.

It is generally held that a slot machine, which in return for a coin deposited therein, dispenses merchandise of the value of the coin, accompanied at occasional and uncertain intervals, by a varying amount of money, trade-checks, or coupons, is a gambling instrument. State v. Johnson, 15 Okla. Cr. 460, 177 P. 926; Nelson v. State, 37 Okla. Cr. 90, 256 P. 939.

It is also generally held that the name given a machine does not determine whether it comes under the statutory classification of a slot machine, but that is determined by the manner and result of its operation. Mackay v. State, 65 Okla. Cr. 149, 83 P. 2d 611.

In 12 R.C.L. p. 729, it is said:

“There are so many kinds of slot machines, differing so much in construction and operation and used for such varied purposes, that it is difficult to lay down any general rule fixing their status with reference to the question of gaming or gambling. A slot machine, it has been said, is not per se a gambling device, since it may be used or played upon for innocent purposes, and the courts cannot therefore take judicial notice that every slot machine is a gambling device, as the use to which it is put must determine its character. In general, however, any slot machine, regardless of its description and although it is a mere automaton which keeps and runs itself, will be deemed to be an unlawful gambling device, where the one who plays the machine stands to win or lose money, trade checks, or prizes, by a chance, or more broadly, where there is an element of chance in its operation. And where the return to the player is dependent on an element of chance the generally prevailing opinion seems to be that a slot machine is a gambling device even though the player is assured of his money’s worth of some commodity, and hence cannot lose.” Ferguson v. State, 178 Ind. 568, 99 N. E. 806, 42 L.R.A., N.S., 720, Ann. Cas. 1915C 172; Lang v. Merwin, 99 Me. 486, 59 A. 1021, 105 Am. St. Rep. 293; Painter v. State, 163 Tenn. 627, 45 S. W. 2d 46; 81 A.L.R. 173, see Annotation 177.

In the case of Harvie v. Heise, 150 S. C. 277, 148 S. E. 66, 69, it is said:

“ ‘In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficent objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified and cunning mechanical inventions.’ [City of] Moberly v. Deskin, 169 Mo. App. 672, 155 S. W. 842.
“In addition to what has been said, even if it should be conceded that it is the sincere purpose of the owner, that the checks be played only for the amusement of the operator, we cannot say that they have no value whatever; for it must be that the amusement or entertainment furnished the player is worth something to him if it constitutes the inducement for him to operate the machine. It is idle to argue that he would spend his money and time in operating the machine for the purpose of obtaining something that is of no value to him — unless we impute to him the lack of that common sense which he is presumed to have. Further, especially in view of the high cost of amusement or entertainment and the immense sums paid for it by people of all classes, it is reasonable to suppose that the owners of the machines, if they expect the amusement or entertainment furnished to operate as an inducement to play, must consider it of some value to the operator.”

And see Com. v. Bowman, 267 Ky. 602, 102 S. W. 2d 382.

In the case of Colbert v. Superior Confection Co., 154 Okla. 28, 6 P. 2d 791, Syllabus No. 2, is as follows:

“Nickel slot machine delivering package of mint of reasonable value of five cents and sometimes, in addition, checks usable for further playing of machine for amusement only, held prohibited.”

In the body of the opinion it is said:

“It is immaterial whether or not the playing of the slot machines amounts to gambling. The act of playing the machines is prohibited, without regard to whether or not the same amounts to gambling.
“The right of the state to legislate against this character of machine, without regard to whether or not the machines are kept or operated for gambling purposes, has been sustained by other courts. See 27 Corpus Juris 989; 12 R.C.L. 730, and cases therein cited.” Citing and quoting from the opinion in State v. Woodman, 26 Mont. 348, 67 P. 1118, 1120, and Nelson v. State, 37 Okla. Cr. 90, 256 P. 939.

And concludes as follows:

“If the act in question applied only to things of value, we think that the amusement held out as an inducement is a thing of value sufficient to bring these machines within the plain provisions of the act. We are of the opinion that the act is applicable without regard to the value of the things held out as an inducement to the playing of the machine.
“The trial court was in error in granting an injunction restraining the defendants from enforcing the plain provisions of the act in question, and its judgment is reversed, and the cause is remanded to that court, with directions to dismiss this action.”

In the case of Mackay v. State, supra, the previous opinions of the appellate courts of this state, relating to slot vending machines as a gambling device, are elaborately reviewed in the opinion of this court, written by Judge Barefoot, and we approve and reaffirm the principles therein set forth.

The foregoing opinions and authorities therein cited set forth the true principles upon which the statute in question must be sustained as a valid law. If the principles enumerated and the conclusions reached are correct, and we think they are, and hereby adopt them, they conclusively refute and fully answer the contention of petitioner that the statute under consideration in this case is unconstitutional and void.

In conclusion, we simply add that it is apparent from the record, which we have set out in full, that no sufficient cause is shown for the issuance of the writ of habeas corpus. It is therefore denied.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    OLIN ANDERSON v. STATE.
    No. A-9473.
    June 16, 1939.
    (91 P. 2d 794.)

      Eaton & Eaton, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for the State.
   BAREFOOT, J.

The defendant was charged jointly with Jimmie Goff with the crime of murder, in Okmulgee county. A severance was taken; Jimmie Goff was tried, convicted, and sentenced to serve a life term in the penitentiary. The defendant was tried, convicted of manslaughter in the first degree, and his punishment left to the court, who sentenced him to serve 20 years in the penitentiary, and he has appealed.

Several assignments of error are presented in this case. The conclusion we have reached shall cause us to consider but one of these assignments. Others will be referred to as occasion demands. Did the court err in overruling defendant’s demurrer to the evidence, and in refusing to instruct the jury to return a verdict of not guilty? The consideration of this error requires us to review the testimony as shown by the record.

On the night of June 19, 1937, the defendant, Olin Anderson, Jimmie Goff, Louise Smith, May Ethel Ragsdale, and James Cravatte, who were negroes, residing in Ok-mulgee, left the home of Louise Smith, in an automobile for the purpose of attending a dance and picnic about two and one-half miles southeast of Beggs, in Okmulgee county. They arrived there about 11 o’clock p. m. Some 200 people were in attendance, and the dance platform was the main attraction. Several crude cold drink stands had been erected in close proximity to the dance platform, and the lighting system was composed of bottles filled with kerosene with rags stuffed therein and lighted. Soon after arriving upon the picnic grounds, defendant and Louise Smith danced one set. A man by the name of Tony Williams, whose nickname was “Tangle-eye,” was managing the dancing platform. The defendant, after dancing, purchased a pint of liquor, and with his party, Jimmie Goff, Louise Smith, and May Ethel Ragsdale, returned to defendant’s parked automobile and there drank the whisky. The two men returned to the dance platform and the girls followed them. Some words were had between defendant and the floor manager, Tony Williams, or “Tangle-eye,” and the witness Williams testified that he spoke to defendant about getting off the platform, which was crowded, and attempting to lead him off, and defendant saying, “he would be .back.” Defendant testified that when asked to get off the platform, which was for the dancers, he merely said: “I am going to dance myself.” There was not much of a controversy according to the evidence of either Williams or the defendant. A short while after this some words were had between the witness Williams and Jimmie Goff, who had come to the dance with defendant, and Goff immediately drew a gun from his bib-overalls and struck the witness Williams, or “Tangle-eye,” over the head and began to fire the pistol indiscriminately into the crowd, with the result that three innocent bystanders were killed. One of them, a man by the name of John Grayson, and two young girls.

There is no evidence that defendant participated in any way in the shooting, and not a line of evidence as to any conspiracy between the defendant and Jimmie Goff, or that the defendant had any knowledge that the shooting was to occur. The facts tending to connect the defendant with the crime will be hereafter related. Immediately after the shooting, defendant, as did all others, ran from the scene of the shooting. When defendant returned to his parked automobile, he found all the other parties there, including Jimmie Goff, who had done the shooting, and who was attempting to move the car, but was having trouble in doing so, by reason of the congested condition of cars and trees. That defendant, at the request of the other parties, assumed control of the car and drove toward Ok-mulgee. Two of the parties, May Ethel Ragsdale and James Cravatte, were let out at their homes. At the request of Jimmie Goff, defendant and Louise Smith took him to the home of his uncle near Boynton, where they arrived early in the morning and stayed the balance of the night. The next day, being Sunday, they procured a paper to see if any one had been injured by reason of the shooting at the dance. They returned to Okmulgee in the afternoon. The defendant was taken into custody by the sheriff, and questioned. At first he denied knowing anything about the killing, but after some time he told the sheriff he would tell him something “if he would treat him like a white man.” The sheriff made him that promise, and he then told the sheriff that he was present at the time of the shooting, and that Jimmie Goff had fired the shots that killed the three innocent bystanders. He also told the sheriff where the gun was, which belonged to him, and with which Jimmie Goff had done the shooting. He also assisted the sheriff in securing the same. Upon making this statement he was released by the sheriff and attended the preliminary hearing of Jimmie Goff for the purpose of giving his testimony, when Jimmie Goff waived his preliminary hearing. After-wards he was charged jointly with Jimmie Goff with the crime of murder of John Grayson, one of the parties who was killed on the night of June 19, 1937.

The state introduced as state’s witnesses both Louise Smith and May Ethel Ragsdale. These two witnesses corroborated the testimony of the defendant in almost every detail. They both testified that when they left home, Jimmie Goff had possession of defendant’s gun, with which the killing was done; that they saw him in possession of it at various times during the evening; that defendant was never seen by them in possession of the same at any time; that they were on the platform at the time of the shooting; that defendant did nothing to aid, abet or assist Jimmie Goff at any time, nor did he in any way participate in the shooting. They both testified that defendant did not leave the dancing platform after they returned from the automobile, and that defendant danced three sets with Louise Smith prior to the time the shooting occurred, and was there present at the time, and they saw him run just as did all the other parties.

The witness James Cravatte, who was with the parties during the time before they left Okmulgee, and on the trip to the dance, saw Jimmie Goff with the gun, and he held it for him on two different occasions, while Jimmie Goff cranked the automobile.

The only witness whom the state produced that in any way connected the defendant with the gun was a negro boy named Chester Lewis, who testified that just a few minutes before the shooting started he saw two negroes standing at a pop stand near the dancing platform, one wearing trousers, and the other bib overalls. (This was the way defendant and Goff were dressed.) He saw the one dressed in trousers load a pistol and hand it to the one dressed in overalls. This testimony occurs to us as unusual to say the least, in view of the other testimony in this case. In the first place, it is directly contrary to the two chief witnesses for the state, Louise Smith and May Ethel Ragsdale, who both swore that defendant did not leave the platform after they returned from the automobile. At the trial of this defendant, this witness positively identified this defendant as being the one who loaded the pistol and handed it to the party wearing the bib overalls, and whom he could not identify and did not know. Yet the testimony of two jurors was introduced in evidence by the defendant who had been on the jury the day before, which tried the defendant Jimmie Goff, and both swore that in that trial the witness testified that he did not know either of the defendants.

His testimony on direct examination was as follows:

“Q. (Handing gun to witness) Just show about what position he walkéd up to the stand and held the gun in? A. He was standing just in this direction, and he was putting shells in this way. (Indicating) Q. All right, sit down. Did you know who handed the fellow in overalls the gun? A. No, sir. I didn’t know him. Q. Never saw him before? A. No, sir, I never have seen him. Q. How was he dressed? A. He had on pants and a shirt. Q. He was not dressed in overalls? A. No, sir.”

The state attempts to rebut this fact on cross-examination of these witnesses that he was not asked to identify the defendant, but merely stated that he did not know him. But the record in this case, where the defendant was on trial, reveals that when this witness was called by the attorneys for the state, on direct examination he was at no time asked to identify this defendant, but at all times stated that he did not know him. After the direct and cross-examination had been completed, a juror asked permission to question the witness, and in answer to the juror’s question, the witness identified defendant as the party whom he saw load the gun and hand it to the defendant Jimmie Goff. It is passing strange that if this witness was able to identify the defendant, counsel representing the state would have closed his evidence in chief, and permitted him to leave the witness stand without making this identification. It seems that his testimony was even a surprise to the attorneys representing the state. He further testified that the shooting was about 5 or 10 minutes from the time he saw the gun loaded and handed to the other party. He did not witness the shooting, but heard the shots fired. This witness, it seems, had told the sheriff about this matter, and while on the witness stand the court permitted the attorneys for the state to go into detail as to his conversation with the sheriff, with reference to what he had told him. This was improper testimony. It is one of the errors assigned. If this was the only error in the case, and the evidence was sufficient to justify a conviction of defendant, we would hold that it was not prejudicial, but it was improper. This witness should have been permitted to give his own testimony, but should not have been permitted to testify in detail just how he had related it to the sheriff. This was an attempt on the part of the state to bolster it up and give it more weight before the jury. The defendant was not present at the time of this conversation. Even if this testimony were true, it is doubtful, under the law, as to whether it would be sufficient to connect the defendant as a principal in this case, where not a line of testimony was shown that a conspiracy, or a prearranged plan had been entered into between the defendant and Jimmie Goff to kill or murder. No evidence to show that defendant spoke to the party or did or said anything indicating an intention to kill or murder anybody, or to even do bodily harm; and the further fact that the testimony of the state’s own witnesses was that he did not raise his hand or do a single act to aid or abet or assist the said Jimmie Goff at the time of the actual killing.

This case involves the construction of the statuté defining “aiding and abetting,” Oklahoma Statutes 1931, section 1808; Oklahoma Statutes Annotated, title 21, section 172, which is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

One of the first cases decided by this court was in an opinion by Judge Richardson, in the case of Moore v. State, 4 Okla. Cr. 212, 111 P. 822, 824, which has been cited, and the principle announced therein adhered to in many cases. It is there said:

“To constitute one a party to a crime under this statute, it is necessary that such person be concerned in the commission of the offense; that is, that he either commit it or aid or abet its commission — and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime. Drury v. Territory, 9 Okla. 398, 60 P. 101; Pearce v. Territory, 11 Okla. 438, 68 P. 504; White v. People, 81 Ill. 333; Jones v. People, 166 Ill. 264, 46 N. E. 723; Clem v. State, 33 Ind. 418; State v. Orrick, 106 Mo. 111, 17 S. W. 176, 329; Burrell v. State, 18 Tex. 713; People v. Ah Ping, 27 Cal. [489], 490; People v. Woodward, 45 Cal. 293, 13 Am. Rep. 176; Walrath v. State, 8 Neb. 80; Kemp v. Commonwealth, 80 Va. 443; Butler v. Commonwealth, 63 Ky. (2 Duv.) 435; State v. Hildreth, 31 N. C. [9 Ired.] 440, 51 Am. Dec. 369; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370.”

This case was followed by Polk v. State, 26 Okla. Cr. 283, 224 P. 194, 206, where it is said:

“It may be stated as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right and shocking to every sense of justice and humanity. When the accused is present and aiding and abetting another in its commission he may be considered as expressly assenting thereto, so, where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go; for if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of such character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability. The mere presence of the accused at the scene of the homicide does not make him a criminal; he may have known that a crime was committed, yet, if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction or connect him criminally with the killing. Moore v. State, 4 Okla. Cr. 212, 111 P. 822.”

Other cases involving the issues here involved are: Scott v. State, 13 Okla. Cr. 225, 163 P. 553; Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 120 P. 300; Crabtree v. State, 18 Okla. Cr. 125, 193 P. 1005; Thompson v. State, 14 Okla. Cr. 209, 169 P. 1125; Carrico v. State, 16 Okla. Cr. 118, 180 P. 870; Vann v. State, 21 Okla. Cr. 298, 207 P. 102; Weatherholt v. State, 9 Okla. Cr. 161, 131 P. 185.

In a case before the Territorial Supreme Court, prior to statehood, the facts were much stronger against the defendant than in the case at bar. We will not lengthen this opinion by giving those facts, but desire to give the reasoning of the late Chief Justice Burford, in reversing that case, and construing the identical statute here under consideration. It was in the case of Drury v. Territory, 9 Okla. 398, 60 P. 101, 107. In that case the court said:

“In order to convict the defendant of the crime charged, it was not sufficient to prove that he was present at the commission of the crime, but, in the language of our statute, he must ‘aid and abet in its commission.’ In the case of Clem v. State, 33 Ind. 418, the trial court instructed in part as follows: ‘So, if the murder was perpetrated with her knowledge and consent or connivance, she is a principal.’ The Supreme Court said: ‘ “Consent,” as a substantive, is a synonym of “assent,” “acquiescence,” “concurrence,” and means an agreement or harmony of opinion or sentiment, and so it would here be popularly understood. It does not imply any manifestation or expression of such concurrence, though this may sometimes be inferred from the connection in which the word is used. There was, however, nothing here to suggest this implication. It could exist without act or utterance, and entirely without the knowledge of the actual perpetrator of the homicide, and in that case it would neither aid nor encourage him to do the fatal deed, and short of this there cannot be aiding or abetting in the sense which the law requires to constitute guilt as a principal in the second degree. Under this instruction, the jury would understand that, if they believed from the evidence that the prisoner was present when the murder was committed, and was willing or desirous that the bloody deed should be done, they must find her guilty, though that desire had been kept by her a secret, and was entirely unknown to him who inflicted the deadly blow. It is plainly not the law that one can be guilty of murder, without overt act, who by neither word nor gesture has done anything to contribute to the commission of the homicide, or to assist, encourage, or evince approval of it at or before the fact, and of whom it only appears that he was present, and knew of the crime, and mentally approved it. The silent thought, however wicked in view of the Searcher of Hearts, is not a crime against our laws, but is left by them to another than a human tribunal.’ It is not sufficient to show that the defendant was present, and knew the offense was being committed. The proof must go further, and show, beyond a reasonable doubt, that he was participating in the homicide before or at the time of its commission. Wade v. State, 71 Ind. 535. ‘There is a plain distinction between consenting to a crime and aiding and abetting in its perpetration. Aiding and abetting are affirmative in their character; consenting may be a mere negative acquiescence, not in any way made known to the principal malefactor. Such consenting, though involving moral turpitude, does not come up to the meaning of the words of the statute.’ White v. People, 81 Ill. 333.”

14 Am. Jur. p. 826, sec. 87, lays down the general rule, as follows:

“To constitute a person a principal in a crime he must be present aiding by acts, words, or gestures and consenting to the commission of the crime. It is not necessary, however, that he do some act at the time in order to constitute him a principal, but he must encourage its commission by acts or gestures, either before or at the time of the commission of the offense, with full knowledge of the intent of the persons who commit the offense. The mere concurrence of the minds of persons in pursuance of a previously formed design to commit a crime does not alone constitute them principals. To constitute a principal in crime, there must be participancy or the doing of somé act at the time of the commission of the crime which is in furtherance of the common design.”

Many cases from other jurisdictions are cited in the note of 12 A.L.R. 277. See, also: Goins v. State, 46 Ohio St. 457, 21 N. E. 476; Landrum v. Commonwealth, 123 Ky. 472, 96 S. W. 587; Woolweaver v. State, 50 Ohio St. 277, 34 N. E. 352, 40 Am. St. Rep. 667.

We have carefully examined this record. It may be true there is some conflict in the evidence on some facts involved in this case. But even conceding that the evidence was. true, as before stated, we are of the opinion it is insufficient to justify the conviction of this defendant as a principal under the law. There is no proof of a conspiracy or prearranged plan between the defendant and his co-defendant Goff, to murder, kill or even do bodily harm to any person. No word spoken at the time of the actual shooting, and no participation by the defendant in any way to aid, abet or even to assist the said Goff in his action. The evidence of one witness on rebuttal, that defendant had possession of the gun prior to reaching the picnic grounds, and of the witness Chester Lewis, is so contradicted, and doubtful, that little weight can be given thereto. It is unfortunate that in the twinkling of an eye three innocent persons should have been rushed into eternity, but it is fortunate that the one who, in a crazy drunken moment, caused this, is now paying the penalty. This defendant should not be required to suffer the punishment assessed against him unless the evidence and the law fully warranted and justified the same. His plea when he told the sheriff “Will you give me the same fair treatment as a white man?” rings true. The sheriff of Okmulgee county was attempting to solve the murder mystery. The defendant was in custody. He agreed to tell the sheriff who had committed the act, and his request was that “he be treated as a white man,” was an expression of his belief in the right, if he told the truth and ended the mystery as to who had committed the act. The sheriff of Okmulgee county evidently had the same idea. He released the defendant, and he was present ready to testify at the preliminary hearing of the defendant Jimmie Goff. It was afterwards that the county attorney filed this charge against him and he was tried and convicted. We are of the opinion the evidence did not justify his conviction, and the court erred in refusing to instruct the jury to return a verdict of not guilty.

It is, therefore, ordered that the judgment of the district court of Okmulgee county be reversed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    JOHN T. TRENT v. STATE.
    No. A-9521.
    June 16, 1939.
    (91 P. 2d 790.)

      J. H. Warren, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the state.
   DAVENPORT, J.

John T. Trent was by information charged in the district court of Choctaw county with the crime of burglary in the second degree, was tried, found guilty as charged in the information, and his punishment fixed at two years in the state penitentiary. Motion for a new trial was filed, considered, overruled, and the defendant appeals.

The record discloses that after the information was filed against the defendant on the 28th day of September, 1936, the defendant was arraigned and entered his plea of not guilty; that on the 8th day of April, 1937, the state was granted permission to indorse the names of witnesses on the information to be used against the defendant in his trial.

It is shown by the record on the 24th day of November, 1937, the case was called for trial. The state being represented by M. W. Gross, county attorney of Choctaw county, and the defendant appeared in person and by his attorney of record J. H. Warren. The county attorney asked permission of the court to amend the information by adding the following words: “and to deprive the owner thereof.” The court granted the permission of the state to amend the information. The defendant moved the court to grant him time in which to plead to the amended information, which motion was overruled and exceptions allowed.

The defendant then moved the court to permit him to withdraw his plea of not guilty heretofore entered, and file a demurrer to the information as amended, which motion was overruled, and the defendant excepted.

The defendant then tendered and offered to file a demurrer to the information as filed herein, which tender by the court was refused and exceptions allowed.

After this proceeding was had, the record shows the defendant filed a motion for a continuance in order to get ready to meet the amended information, which motion was overruled, and the court ordered a jury drawn and the trial proceeded with.

The defendant, among other grounds set forth in his petition in error, in his fourth assignment states:

“The court erred in overruling the application of the petitioner to file demurrer after amendment of information.”

And fifth:

“The court erred in refusing to give petitioner in error time to plead after filing amended information.”

These two assignments are the only two assignments it is deemed necessary to consider as they go to the question of the rights of a party charged with crime to plead to the allegations filed against him.

It will be seen from the amendment permitted to the information by the court that it was an amendment of substance and not of form when the court permitted the words: “and to deprive the owner thereof.” It is not stated in the motion of the county attorney or the order of the court allowing the county attorney to make the amendment, in what part of the information the amendment is to be inserted, leaving the information, by the words: “and to deprive the owner thereof,” indefinite, imperfect, and not specifically advising the defendant charged with crime, where in the information the words should be inserted.

Section 2946, O. S. 1931, 22 Okla. St. Ann. § 502, provides:

“The only pleading on the part of the defendant is either a demurrer or a plea.”

Section 2947, O. S. 1931, 22 Okla. St. Ann. § 503, provides :

“Both the demurrer and the plea must be put in in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.”

Section 2948, O. S. 1931, 22 Okla. St. Ann. § 504, is as follows:

“The defendant may demur to the indictment or information when it appears upon the face thereof either:
“1. That the grand jury by which an indictment was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county.
“2. That it does not substantially conform to the requirements of this chapter.
“3. That more than one offense is charged in the indictment or information.
“4. That the facts stated do not constitute a public offense.
“5. That the indictment or information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.”

In section 2949, O. S. 1931, 22 Okla. St. Ann. § 505, and section 2950, O. S. 1931, 22 Okla. St. Ann. § 506, it is provided that the demurrer must be in writing, signed by either the defendant or his counsel and filed. It must distinctly specify the grounds of the objection to the indictment or information, or be disregarded; and upon the demurrer being filed, the objections presented thereby must be heard, either immediately or at such time as the court may appoint.

Section 2956, O. S. 1931, 22 Okla. St. Ann. § 512, provides :

“When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.”

It is urged by the defendant that when the court permitted the county attorney to amend the information, the amendment permitted by the court was an amendment in substance and amounted to the filing of a new information against him; and that after the amendment permitted by the court was made, the record fails to show that the information was refilled; the defendant further urges that the filing of the amendment under our statutes entitled him to time to plead; and when that was denied him, he had the right, and it was the duty of the court under the statutes of Oklahoma to permit him to file a demurrer to the amended information, as requested by the defendant; and the refusal of the court to permit the defendant to file a demurrer as requested by the defendant was a reversible error.

There is nothing in the record to show why the court denied the defendant time to plead after the amendment was made to the information, nor is there any statement in the record to show why the court denied the defendant the right to withdraw his former plea of guilty and to file a demurrer to the amended information.

This court has repeatedly held that the filing of a new information is the beginning of a new case, and the accused is always entitled to the statutory time in which to plead. This is a plain statutory essential, and cannot be denied when it is claimed in due time. Bohannan v. State, 11 Okla. Cr. 69, 142 F. 1092.

The amendment permitted to be made by the court in substance was the filing of a new information as it had a material allegation somewhere in the information; yet it was not designated in what part of the information this amendment should be inserted.

It is difficult to understand why a trial judge does not follow the procedure of his statutes and permit any pleading that is authorized by the statutes to be filed in order to avoid a controversy or a new trial. Judges are as much judges for the defendant as for the state, and are supposed to sit fairly and impartially between the rights of the state on one hand and the rights of the defendant on the other. To become a partisan either for the state or the defendant is to descend from the high position to which the judge is elevated and to assume the role of advocate.

In this case we have a defendant brought before the bar of the court charged with a felony; an information had been filed against him; and he had pleaded to that information, not guilty. Later on, and on the day the case was called for trial, the county attorney asked permission of the court, and the court granted it, for him to file an amendment to the information; then it is shown that the defendant asked for time to plead to the information as amended; and the court denied him that right; and exceptions were duly saved. He then asked permission of the court to withdraw his plea of not guilty to the original information, and to be permitted to file a demurrer to the information as amended. This was denied him; and he offered to file a demurrer; and the court denied his offer. Exceptions were duly saved, and the question is before this court on the defendant’s appeal to determine as to the ruling of the court, made upon the defendant’s request for time to plead, to withdraw his former plea of not guilty, and his offer to file a demurrer to the information as amended. There is no explanation in the record by either the court or the county attorney as to why the defendant was not given time to look into and to prepare for trial on the amended information, or as to why he was not permitted to withdraw his former plea of not guilty and to demur to the information upon which he was then called to answer.

The record is silent as to why the court denied the defendant that constitutional and statutory right guaranteed to him for a fair and impartial trial, and deprived him of his right to file such pleading before going to trial as he believed, under the Constitution and laws of this state, he was entitled to do.

In Dunkin v. State, 45 Okla. Cr. 203, 282 P. 692, this court in the syllabus stated:

“When a defendant is arraigned on a felony charge, he must be allowed until the next day to plead under our statute, if he demands it, and it is error to refuse the defendant such time.”

In Bohannan v. State, supra, it is held that the filing of an amendment or a new information is the beginning of a new case, and the accused is always entitled to the statutory time in which to plead.

In the case at bar the defendant did not waive his right to time to plead, but demanded of the court time to plead; and this demand was denied by the court, and the defendant was forced to trial on the information as amended.

Without prolonging this opinion further or citing further authorities, this court holds that when the county attorney was granted permission by the court to file an amended information, and when the amendment was made, the defendant was entitled to time to plead to the amended information; and when he was denied that right, and asked permission of the court to withdraw a former plea of not guilty, in order to file a demurrer, and the court denied his request, and defendant was denied his offer to file a demurrer, the ruling of the court deprived the defendant of that fair and impartial trial guaranteed to him by the Constitution of the United States, the state of Oklahoma, and the laws of Oklahoma; and the court by reason of the denial of the request of the defendant committed reversible error.

There are other errors assigned, but the view we take of this record, it is not necessary to consider them.

For the reasons herein stated, the case is reversed and remanded, with directions to proceed with this case in conformity to this opinion.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    JIM HARRINGTON v. STATE.
    No. A-9449.
    June 16, 1939.
    (91 P. 2d 787.)
    Emmons Arrington, of Shawnee, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the county court of Pottawatomie county under an information which charged that in said county on the 27th day of August, 1937, he did have in his possession 6 quarts of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to serve 60 days in the county jail and pay a fine of $100 and the costs, taxed at $47.55.

The facts as shown by the testimony of two witnesses for the state, D. 0. Barton and Willis Moore, deputy sheriffs, are, that on the date alleged they went to the home of the defendant, in the north part of Tecumseh, being the second house north of Tease’s filling station; the defendant was not there, his wife was sitting on the front porch, so they served the search warrant on Mrs. Harrington, then searched the house and found two half-gallon fruit jars full of whisky under the stove and a third fruit jar half full of whisky in the kitchen cabinet.

The defendant, as a witness in his own behalf, testified that he had lived 36 years in Pottawatomie county; that a few days before the officers searched his home a man driving a 36 model Ford sedan stopped at Tease’s filling station, about 25 feet south of his home; that he was sitting on the porch and heard the man say he wanted to buy or trade for some tires; Tease’s boy told him they did not have any. He went over and told the man he had just bought some new tires and had two or three old tires. The man said he did not have any money, but he had some whisky that he would trade for the casings. He asked him how much he would give for them, and the man said three half gallons. He said, “It is a deal.” He took the whisky and the man took the tires; that he never sold any whisky, and that he did not intend to sell the whisky.

Numerous errors are assigned and argued in the brief. The only question, however, that need to be considered is whether the justice of the peace had jurisdiction to issue the search warrant in the execution of which the whisky in question was seized.

When the case came on for trail, the defendant filed a motion to suppress the evidence and dismiss the case on grounds which may be summarized as follows: That the search warrant was not issued, served and returned as by law provided; that there is not of record a verified complaint for search and seizure on file in the office of John Hatfield, justice of the peace, Tecumseh city district; that complaint was not sworn to before said justice; that the affiant, Elza Evans, did not sign said complaint in the presence of said justice of the peace; that the warrant did not issue from said justice of the peace acting in his district, therefore said search and seizure was in violation of the defendant’s constitutional and statutory rights.

In support of the motion to suppress, Elza Evans, called as a witness, testified in part as follows:

“Q. You are the sheriff of Pottawatomie county? A. I am. Q. Were you active in your office about the 25th day of August, 1937? The Court: Is that the date of issuing the warrant ? By Mr. Arrington: The day before. A. I believe I was in my office at that time, the best I remember. Q. Mr. Evans, on that date did you see John Hatfield, the justice of the peace at Tecumseh? A. To my best recollection, I did. Q. And did you see him on the 26th of August, 1937 ? A. I don’t remember whether I saw him. Q. Mr. Evans, did you sign the complaint for search and seizure in front of J. H. Hatfield, to search Jim Harrington’s premises, in the month of August, ranging from the 25th to the 26th, 1937? Mr. Wyatt: Objected to as incompetent, irrelevant and immaterial, the complaint speaks for itself. The Court: Sustained. Mr. Arrington: Comes now the defendant and offers to prove by the witness that the complaint for search and seizure of defendant’s premises, on or about the 26th day of August, 1937, was not signed and verified to as by law provided in front of the justice of the peace who issued the warrant for search and seizure of the defendant’s home. Mr. Albert: We object as incompetent, irrelevant and immaterial, and not the best evidence. The complaint speaks for itself. The Court: Sustained for the reason that the court is of the opinion that the Criminal Court of Appeals has repeatedly held that if an affidavit for search and seizure or a warrant for search and seizure is full, fair and complete on its face, that the same is not subject to attack on motion to quash the information or suppress the evidence in a criminal cause. Mr. Arrington: Exception.”

The “Complaint for Search and Seizure” introduced as defendant’s exhibit recites:

“Before me, J. H. Hatfield, Justice of the Peace, in and for Pottawatomie County, Oklahoma.
“In re: Application of Elza Evans for search warrant, State of Oklahoma, Pottawatomie County.
“Elza Evans, being first duly sworn, on oath, states:”

Then continues with allegations, printed form, same as set forth in the opinion in case of Spikes v. State, 65 Okla. Cr. 254, 85 P. 2d 327, and is signed and verified as follows:

“Elza Evans, Affiant.
“Signed in my presence and sworn to before me this the 26th day of August, 1937.
“J. H. Hatfield, Justice of the Peace.”

The warrant for search and seizure recites:

“Before me J. H. Hatfield, Justice of the Peace in and for Pottawatomie County, Oklahoma:
“In re: Application of Elza Evans for search warrant.
“The State of Oklahoma to the sheriff of Pottawatomie County, or any deputy sheriff, constable, marshal, or policeman of Pottawatomie county, Oklahoma, Greeting.”

Then follows copy of complaint. Warrant is signed as follows:

“Witness my hand this the 26th day of August, 1937,
“J. H. Hatfield, Justice of the Peace.”

We think the trial court erred in sustaining the state’s objections, and in excluding all offered testimony, because the same was not in contradiction of the record, as shown by the complaint and search warrant, in that the same does not show that the magistrate performed his judicial acts within his own district.

In the case of Uhlenhake v. State, 58 Okla. Cr. 248, 52 P. 2d 117, 120, it is said:

“Where a justice of the peace has acquired jurisdiction, the only competent evidence of the proceedings had is the record required by law to be made, and the record is conclusive as against any parol attack in a collateral proceeding attempting to impeach it. Ex parte Walton, 2 Okla. Cr. 437, 101 P. 1034. * * *
“The complaint or affidavit and the search warrant should be matters of public record in the office of the justice of the peace who issued the search warrant.”

While it is well settled that the judgment of a justice of the peace, in a matter of which by law such court had jurisdiction, and wherein it had, according to law, acquired jurisdiction, cannot be assailed collaterally on account of mere irregularities in the proceedings, subsequent to acquiring jurisdiction, but the jurisdiction, to be complete, so as to preclude collateral attack, must exist both as to the subject matter and as to the parties.

The question to be determined is, Was the matter of the place where the oath, verifying the complaint was administered and the search warrant issued thereon, a matter of jurisdiction or rather one of procedure?

The statute provides that justices of the peace shall reside and keep their offices in the district from which they are elected. Sec. 4136, 39 Okla. St. Ann. § 6.

In the case of Hart v. Grove, 76 Okla. 179, 184 P. 572, the Supreme Court of this state held:

“A justice of the peace being a township officer under the Constitution and laws of this state, he can perform his official acts only in his own township.”

In the opinion it is said:

“In Leiber v. Argaubright, 25 Okla. 177, 105 P. 341, it was held that a justice of the peace is a township officer, under the Constitution, and cannot be a county or state officer. It is true that justices of the peace are, in a sense, justices of the peace in their respective counties, and also in the state. It is true that a justice of the peace may, in his own township, perform the duties of an examining magistrate in cases or hear cases arising in any part of the county; it is also true that he may within his own township, issue criminal process to be served in any part of the state; but it does not follow from these powers given that he may go into any part of the county or any part of the state and perform official acts. He can perform his official acts only in his own township.”

In the case of Berry v. State, 10 Okla. Cr. 308, 136 P. 195, this court held:

“Under the law in this state a justice of the peace has no jurisdiction to preside over the trial of any civil or criminal proceeding outside of the district for which he was elected or appointed. * * *
“Any trial had or any business attempted by a justice of the peace outside of the district for which he was elected or appointed is a nullity.”

In Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 266, 65 L. Ed. 647, the Supreme Court of the United States said:

“A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.”

The witness, Elza Evans, who verified the complaint, asked: Did you see John Hatfield, the justice of the peace, at Tecumseh on the 26th day of August, 1937? Answered: “I don’t remember whether I saw him.” And it does not affirmatively appear from the complaint, subscribed and sworn to before J. H. Hatfield, justice of the peace, or from the warrant for search and seizure, issued thereon, that said justice of the peace was acting within his justice of the peace district, the city of Tecumseh.

Our conclusion is that, under the provisions of the statute and the foregoing authorities, the verification of the complaint, and the issuance of the search warrant thereon was a matter of jurisdiction, and not of procedure, and where the record is silent, as in this case, jurisdiction will not be conclusively presumed, and evidence showing or tending to show want of jurisdiction should have been admitted.

While this court is disposed to regard tolerantly any mere technical irregularities, or defects of form in proceedings before justices of the peace, it would be going too far to hold the record in this case to be sufficient to support or justify the invasion of the defendant’s home for search and seizure under a search warrant that upon its face fails to show that the magistrate issuing the same acted within his district, and merely signed the same as “J. H. Hatfield, Justice of the Peace.”

Upon the evidence adduced and the proof offered in support of the motion to suppress, the entire proceedings before the justice of the peace who issued the search warrant were a nullity.

The judgment of said county court herein is therefore reversed, and the cause remanded, with direction to dismiss.

BAREFOOT and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    Ex parte JOHN N. GONSHOR.
    No. A-9516.
    June 23, 1939.
    (92 P. 2d 386.)

      G. C. Terry, of Los Angeles, Cal., for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   PER CURIAM.

On May 17, 1938, there was filed in this court a petition for writ of habeas corpus, on behalf of John N. Gonshor, alleging that he is unlawfully confined and detained in the Hospital for the Insane, at Vinita, Okla., and has been so unlawfully confined since 1914.

And further alleging “that he is not insane, nor has he been insane before or since his incarceration.”

The Attorney General appearing on behalf of the respondent filed thereto the following demurrer:

“Comes now F. L. Adams, superintendent of the State Hospital for the Insane, by Mac Q. Williamson, Attorney General, and demurs to the application herein filed on behalf of John Gonshor, a patient in said hospital, for the reason that said purported application does not state facts sufficient to show any right to relief.

“The entire lack of merit in the statements contained in the affidavit of the ‘next friend’ of said John Gonshor is shown by an examination of the following cases: Ex parte Gonshor, 48 Okla. Cr. 491, 290 P. 358; Ex parte Gonshor, 146 Okla. 156, 294 P. 159; Ex parte Gonshor, 113 Okla. 101, 239 P. 249; Ex parte Gonshor, 114 Okla. 143, 244 P. 787.

“From Ex parte Gonshor, 146 Okla. 156, 294 P. 159, supra, it will appear that application has been made heretofore not only to this court and the Supreme Court but also to the district court of Craig county where evidence was heard and it was determined that the petitioner has been properly committed, that he was insane at said time and at the time of the hearing in district court.
“Wherefore, respondent submits that the application herein filed should be dismissed.”

In the case of Ex parte Gonshor, 48 Okla. Cr. 191, 290 P. 358, the opinion of the court reads:

“Edwards, P. J. This is an original proceeding in habeas corpus, the facts involved are similar to those in the case of In re Habeas Corpus of David M. Reynolds [48 Okla. Cr. 189] 290 P. 357, just decided. For the reasons there stated, the case is dismissed.”

The opinion in Ex parte Reynolds, supra, concludes as follows [48 Okla. Cr. 189, 290 P. 358]:

“Although this court under the provisions of sections 423 and 3048, Comp. St. 1921 [secs. 684 and 3808, Sts. 1931, 12 Okla. St. Ann. § 1333; 20 Okla. St. Ann. § 41], has jurisdiction, it is better practice, where habeas corpus is resorted to by one not held upon some criminal or quasi criminal proceeding but by reason of restraint arising purely out of a civil matter, such as for the custody of a child, for failure to pay alimony in divorce cases, or for the release of one held as insane as in the instant case, that the application for the writ should be made to the civil and not to the criminal court.
“The case is dismissed.”

It follows from the foregoing and for the reasons stated that the demurrer to the petition and motion to dismiss should both be sustained. It is so ordered.


text:
    W. M. (PETE) KENNEDY v. STATE.
    No. A-9493.
    June 23, 1939.
    (92 P. 2d 384.)

      Stephenson & Stephenson and W. A. Ratteree, all of Okemah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction and sentence to confinement in the state penitentiary for a term of one year and pay a fine of $50 and costs, rendered in the district court of Okfuskee county, upon a plea of guilty, entered by the defendant, W. M. (Pete) Kennedy, upon an information charging a violation of the prohibitory liquor laws, second offense.

It appears from the transcript of the proceedings in the court below that on his arraignment defendant entered a plea of not guilty. When the case came on for trial, leave of court was asked and granted to withdraw his plea of not guilty. He then entered his plea of guilty and asked that the time for judgment be passed to October 16, 1937. On said day the court considering his plea of guilty pronounced its judgment and sentence as follows:

“The prisoner, the above named, W. M. (Pete) Kennedy, defendant, being personally present in open court, and having been legally informed against for the crime of second offense-possession of intoxicating liquor, and said defendant having entered herein his plea of guilty, as charged in said information, and being asked by the court if he had any legal cause to show why judgment and sentence should not be pronounced against him, and he having no good reason to bar thereof.
“It is therefore considered, ordered, adjudged and decreed by the Court that the said W. M. (Pete) Kennedy be confined in the state penitentiary at McAlester, in the state of Oklahoma for a term of one (1) year, for said crime by him committed, said term of sentence to begin at and from the date of his reception at said institution, that said defendant pay a fine of $50, and that said defendant pay the costs of this prosecution, taxed at $25.70.”

Exceptions taken to the judgment and sentence were overruled, and thereupon the court notified the defendant of his right to appeal and the court fixed supersedeas bond in the sum of $1,000.

From the judgment the defendant appealed by filing in this court on April 16, 1938, a petition in error with a duly attested transcript of the record.

The only error assigned is that:

“The said court erred in assessing the said punishment, in that said punishment is excessive, unreasonable and unjust and was induced by bias and prejudice.
“Wherefore plaintiff in error prays that said judgment so rendered be reversed, set aside and held for naught, and be reduced to a sentence that is just, reasonable and fair.”

The Code of Criminal Procedure provides (sec. 2957, Sts. 1931, 22 Okla. St. Ann. § 513):

“There are three kinds of pleas to an indictment or information. A plea of:
“First, Guilty.
“Second, Not guilty.
“Third. A former judgment of conviction or acquittal of the offense charged, which must be specially pleaded, either with or without the plea of not guilty.”

Under our statute a conviction of crime may be had in three ways; either by the verdict of a jury or by findings of fact by the judge, where a jury is waived. Sec. 20, art. 7, Const., Okla. St. Ann. or by a plea of guilty. In re Opinion of the Judges, 6 Okla. Cr. 18, 115 P. 1028.

Under our statute the plea of guilty may be entered in all criminal cases, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law.

The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term at which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put in opertion, is undeniable. This power is inherent in all courts of record. Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L.R.A., N. S., 60.

The defendant was represented by able counsel, who, it appears from the record, did not see fit, after judgment was rendered, to file a motion to modify the judgment on the ground that the punishment imposed was excessive.

The power to pardon, parole, reprieve, or commute is vested in the Chief Executive of the state (Const, art. 6, sec. 10), and this is the source from which relief must be obtained in such cases as this. The judicial power to modify a judgment and sentence by reducing the punishment when deemed proper in furtherance of justice, and the executive power to pardon, parole, or commute, are wholly distinct in their nature. The one is an award of justice, and the other an act of grace. Clemency is a matter of discretion and may be refused. Justice is imperative and must not be denied. In other words, the Code of Criminal Procedure makes it the duty of this court to review the record, and in a proper case, in furtherance of justice, modify the judgment by reducing the sentence so as to prevent the imposition of punishment which the evidence will not warrant. Section 3204, St. 1931, 22 Okla. St. Ann. § 1066.

It is well settled that before this court can modify the judgment and reduce the punishment, it must clearly appear that the court abused its judicial discretion in assessing the punishment. Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646; Harry v. State, 59 Okla. Cr. 302, 58 P. 2d 340.

Upon a careful review of the record in this case, we cannot say that the punishment imposed is excessive, and we think our duty is fully performed by an affirmance of the judgment of the trial court. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    EARL WILSON v. STATE.
    No. A-9512.
    June 23, 1939.
    (92 P. 2d 625.)

      J. Q. A. Harrod and Laynie W. Harrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and E. W. Brown, Asst. Co. Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant was charged in Oklahoma county with the crime of destroying insured property; was tried, convicted, and his punishment left to the court, who sentenced him to serve a term of two and one-half years in the penitentiary, and he has appealed.

This charge grew out of the burning of defendant’s automobile. His conviction was based upon the testimony of an accomplice, Leslie O’Neal, who the state contended was employed by defendant to burn the car, a Ford V-8. It is contended by the defendant that the evidence is not sufficient to corroborate the accomplice, Leslie O’Neal, and is insufficient to support the verdict.

We have carefully read the record, and will say that the evidence is of such a nature that we are sure it gave worry to the jury in determining their verdict, as it has to the court. The evidence of the witness O’Neal, who pleaded guilty and was sentenced to serve a term of one year in the penitentiary, was to the effect that he and defendant lived in adjoining houses; that some time prior to July 1, 1937, the defendant saw him and told him if he would take the wheels and tires from his car and sell them, he would give him one-half of the proceeds; that during the night he did this, but the officers came by early the next morning and notified defendant of the condition of his car, and the plans were frustrated. The defendant secured the wheels where he had hid them, and replaced them on his car. The officers, after leaving, returned in a short while and found defendant replacing the tires on the car. He claimed to have recovered them from a boy who had taken them. That two days later, and on July 1, 1937, he saw defendant and a negro man by the name of Jesse Anderson in defendant’s car at 624 East Reno. That defendant called him out, and in the presence of Anderson asked him if he wanted to make some money, and he asked what it was, and defendant told him he wanted him to “strip his car down,” and drive it out and burn it up. That defendant asked him about a key, and he told him where he could have one made. That defendant and Anderson left and were gone about 20 minutes, when defendant returned alone, and he and the witness drove in defendant’s car to the A & A Locksmith and Bicycle Shop, and witness took the key and had one made, defendant remaining outside, but paying for the making of the key. He further testified that arrangements were made later in the evening whereby it was agreed that defendant would attend the last show at the Aldridge Theatre, park his car, and the witness was to drive the same away and burn it. He further testified that he got the car, hired a negro boy, whom he had known in West Texas, and whose name he did not know. He gave him a quarter to follow him and paid for a meal. That he parked the car out in a field two and one half miles northeast of the Taylor Home, and returned to the city, and that about 1:30 he saw defendant at a pool hall where they were shooting dice, and he winked at him, and defendant followed him to the street, and he told defendant what he had done with the car, and that he and defendant went in witness’ automobile to where the car was and they took the wheels off and hid them, and then put gasoline and weeds on the car and burned it up. They returned to the city in the car of the witness O’Neal. The car was found at this place the next morning where it had been practically destroyed by fire. The tires were found close to where the car was parked.

The defendant, as a witness in his own behalf, denied all of the evidence related by the witness O’Neal. He maintained that his car was stolen while he was attending the theatre with a friend; that when they returned to get the car it was gone; that he first looked for a colored officer, but could not find one, and that his brother-in-law took him to the police station, and he reported the theft there at about 11:30. He is corroborated in these statements by Cecil Mumford, who accompanied him to the show, and by the officers. He claimed he returned to his home about 11:80 p. m., and is corroborated in this statement by Cecil Mumford, who accompanied him to near his home, and left him about 11:25 p. m., and that he did not at any time see the witness O’Neal, and did not go with him and burn the car as that witness testified.

If this case rested solely upon the question as to whether defendant returned with the witness O’Neal and helped to burn the car, we would be inclined to believe the evidence of the defendant, and believing that this evidence may not be true, it is, as stated, hard to come to a correct conclusion; but, under the law, if defendant hired the witness O’Neal to burn the car, and promised him one-third of the proceeds received from the insurance company after the indebtedness was paid, and the witness O’Neal burned the car under these circumstances, defendant would be guilty even though he did not participate in the actual burning thereof. Saied v. State, 65 Okla. Cr. 124, 83 P. 2d 605.

From a careful reading of the record and under the law, we find sufficient facts and circumstances that would have justified the jury in finding that the testimony of the witness O’Neal was sufficiently corroborated. Especially is this true as to his having been employed by defendant to burn the car. Without going too much into detail, the evidence shows that the witness Jesse Anderson corroborated the witness O’Neal as to the conversation between defendant and this witness as to his employment to strip the car and burn the same. The evidence revealed that the witness Anderson had been to the penitentiary for grand larceny. The evidence of the officers who found the car stripped two mornings before the same was stolen, and the fact that defendant secured the tires and was replacing them when the officers returned in a short while, and other circumstances which it is unnecessary to here relate, cause us to find that there was sufficient corroboration of the witness O’Neal to sustain the verdict of the jury.

Under the law it is not necessary that every part of an accomplice’s testimony shall be corroborated. It is only necessary that some material part thereof be corroborated, and this may be by circumstantial evidence the same as by direct testimony. Rice v. State, 60 Okla. Cr. 398, 64 P. 2d 1240; Howerton v. State, 65 Okla. Cr. 457, 88 P. 2d 904; Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Varner v. State, 42 Okla. Cr. 42, 274 P. 43; Fortman v. State, 45 Okla. Cr. 23, 280 P. 1109; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

The defendant urges that certain evidence was introduced that was prejudicial to his rights. We have examined the same, and are of the opinion there was not sufficient error, if any, to reverse this case.

The defendant in this case presented a strong defense, and if the jury had believed it he would have been acquitted. We are frank to say that the testimony of the witness O’Neal is not such that one should be deprived of his liberty upon his uncorroborated testimony. This case vindicates the statutes, 22 Okla. St. Ann. § 742, St. 1931, § 3071, which requires the state to produce corroborating testimony before it' permits a conviction upon the testimony of an accomplice.

From an examination of the record in this case, we find that the witness O’Neal was given a sentence of one year on the recommendation of the county attorney. We have come to the conclusion that justice requires a modification of the judgment and sentence in this case from two and a half years in the penitentiary to a term of one year, and, as so modified, the judgment of the district court of Oklahoma county is hereby affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    ROY LINTHICUM v. STATE.
    No. A-9497.
    June 23, 1939.
    (92 P. 2d 381.)
    Don Cameron, of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case in substance charges that in Oklahoma county, on the 21st day of July, 1937, Roy Linthicum did have in his possession six pints of tax paid whisky and gin, with the unlawful intent to sell the same.

On the trial the jury returned a verdict finding him guilty as charged in the information, but were unable to agree upon the punishment.

Motion for new trial was duly filed and overruled on December 21, 1937. Thereupon the court sentenced the defendant to be imprisoned in the county jail for a period of 60 days and to pay a fine of $100.

To reverse the judgment he appeals and assigns as error the overruling of his motion to suppress the evidence, the admission of evidence obtained by an unlawful search of his home, the overruling of his motion to strike such evidence, and that the verdict is contrary to the law and the evidence.

The conviction rests upon the testimony of two deputy sheriffs and upon the evidence procured by search and seizure in executing a search warrant, which describes the place to be searched as follows:

“John Doe whose more full and correct name is unknown, in certain buildings and premises described as follows, to wit:
“A one story frame building located at 932 S. E. 29th St., adjacent to Oklahoma City”

And dated:

“This 17th day of July 1937.
“Jack Cecil Wheeler,
“Justice of the Peace.”

When the case came on for trial counsel for defendant filed a motion to suppress the evidence of the finding of whisky in his home, because the same was obtained by means of an unlawful and unreasonable search and seizure in violation of his constitutional rights.

The motion challenged the sufficiency of the complaint or affidavit for the search warrant as well as thé warrant issued thereon, on the ground, among others, that the description of the premises “is ambiguous, wrong, indefinite and uncertain and could not be ascertained for the search warrant calls for one-story frame building when in truth and in fact there is more than one family living there.”

The undisputed testimony of several witnesses in support of the motion to suppress shows that four families occupied four apartments in the building described in the affidavit and search warrant introduced in evidence as Exhibits 1 and 2.

The defendant testified on the motion to suppress that he lived in the building which consisted of four apartments; that four families were living there at the time the search and seizure was made; that the address was really a rural route; that all the families received their mail at the same address, and that number covered the whole apartment house; that the property was owned by Ada Haynes.

It has been regularly held by this court that warrant for search of private residence, occupied by several families, issued upon complaint or affidavit which fails to name owner or any occupants of the residence, was void, search thereunder was unreasonable, and liquor obtained in search was inadmissible in prosecution for unlawful possession of intoxicating liquor. Houchin v. State, 58 Okla. Cr. 329, 52 P. 2d 1085; Clanton v. State, 59 Okla. Cr. 365, 60 P. 2d 415; Mason v. State, 60 Okla. Cr. 392, 64 P. 1238.

In the case of Myer v. State, 34 Okla. Cr. 421, 246 P. 1105, 1106, it is said:

“Where the place to be searched is described in the affidavit and in the search warrant by a single street number without naming the owner or any of the occupants, where two or more families reside in separate apartments, a search warrant directing the officers to search the premises designated by such single number is void because in legal contemplation it describes more than one ‘place,’ within the meaning of the Constitution. One of several light housekeeping apartments, however humble or unpretentious, when occupied as a home, is just as sacred and entitled to the same constitutional protection as a separate mansion used as a home. Wiese v. State, [32 Okla. Cr. 203] 240 P. 1075; United States v. Innelli, D. C., 286 F. 731; Search & Seizure by Cornelius (1925) § 126 et seq., and cases cited.”

In Mason v. State, 63 Okla. Cr. 153, 73 P. 2d 468, 470, we said:

“It is elementary that a complaint for a search warrant must particularly describe the place to be searched for intoxicating liquor. The statute provides that the warrant shall command a search of the premises described and designated in such complaint and warrant. Section 2635, St. 1931, 37 Okla. St. Ann. § 84.
“It is the general rule that laws authorizing invasion of private premises and the sanctity of the home by search and seizure proceedings are to be strictly construed. Mayberry v. State, 62 Okla. Cr. 183, 70 P. 2d 1106.”

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

The violation of the rights, privileges, and immunities, secured by the Constitutions, federal and state, should find no sanction in the judgments of the courts, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

On the record before us, we are convinced that the search and seizure in this case was an unauthorized trespass, and that all the state’s evidence was improperly admitted over the defendant’s objections and in violation of his constitutional and statutory rights.

The judgment of the lower court is accordingly reversed, cause remanded, with direction to dismiss.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    ALVIN WOOTEN v. STATE.
    No. A-9684.
    June 24, 1939.
    (92 P. 2d 594.)
    W. L. Boner and Robert N. Allen, both of Durant, for plaintiff in error.
    Bill Steger, Co. Atty., of Durant, for the State.
   PER CURIAM.

The plaintiff in error filed his transcript of the record in this court on June 22, 1939, and filed an application showing that on April 24, 1939, the plaintiff in error was tried for the crime of larceny of livestock in the district court of Bryan county, Okla., found guilty by a jury, and his punishment fixed at five years in the state penitentiary at McAlester; thereafter, and on the 29th day of April, 1939, the said plaintiff in error was sentenced by the district judge to serve the said term of five years in the state penitentiary at McAlester, and gave notice of his intention to appeal to the Criminal Court of Appeals of the state of Oklahoma, and was granted 60-10-5 days for case-made, which sixty days expires on the 29th of June, 1939.

It is further shown that the plaintiff in error filed a motion for a new trial which was overruled by the trial court.

The defendant states that he filed his application, asking the trial judge to order a case-made at the expense of the county; and states that he is a poor person without means to pay for the record; that he has no funds, and has no friends that will put up the funds to pay for the said record; that his application was heard by the Honorable District Judge of Bryan county, Okla., on June 17, 1939, and proof that plaintiff in error was a pauper, without means for paying for the record, and had no funds, and no friends that would put up funds for said record; that after hearing the application of the plaintiff in error and the testimony in support of the same, the honorable district judge, who had presided at the trial, denied his said application and made the following announcement:

“By the Court: Here is the situation about it. I would love to make an order allowing him to appeal at the expense of the county; but the county is broke and don’t have any money; and it don’t look like we can get enough to hold court with. If I made an order in this case, I would have to make an order to appeal all of them; and we can’t do it as much as I would like to do it; therefore, the application will be denied. I feel sorry for Mr. Wooten and would like to see him appeal the case; but I can’t see my way clear to do it. By Mr. Boner: The defendant excepts and gives notice of appeal to the Criminal Court of Appeals. By the Court: Exception allowed.”

It is further shown that the plaintiff in error gave notice to the county attorney that on the 24th day of June, 1939, he would apply to this court for an order requiring the court reporter of the district court of Bryan county, Okla., to furnish the record at the expense of the county.

No appearance was made by the county attorney, and the case was submitted upon the application of the plaintiff in error, the defendant in the lower court, and his proof in support of the same.

Section 3823, O. S. 1931, 20 Okla. St. Ann. § 111, in part is as follows:

“Provided, However, that if, before a transcript of the notes is ordered on application of the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county.” Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338; Brogdon v. State, 38 Okla. Cr. 269, 260 P. 784; Reed v. State, 53 Okla. Cr. 391, 12 P. 2d 551.

It is ordered that the official court reporter of the district court of Bryan county, Okla., prepare the case-made in the above numbered and entitled case at the expense of Bryan county, Okla., and furnish the same free of charge to Alvin Wooten, plaintiff in error, herein referred to.