text:
    F. J. HACKER v. STATE.
    No. A-9870.
    Oct. 22, 1941.
    (118 P. 2d 408.)

      Meacham, Meacham & Meacham, of Clinton, and Riley Q. Hunt, of Grove, for plaintiff, in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, F. J. Hacker, was charged in the district court of Delaware county, Oklahoma, by information on July 22, 1939, with the crime of rape in the first degree, was tried, convicted and sentenced to serve 15 years in the State Penitentiary, from which judgment and sentence he appeals to this court.

Defendant was a minister of the Church of the Kingdom. It is alleged that he had sexual intercourse in July, 1938, with one Edna George, “a female person of unsound mind and incapable through lunacy and such condition of mind of giving her consent to said act or realizing the nature and consequence thereof, and not the wife of him.”

The only question raised by counsel for defendant that it is necessary for us to consider is whether or not there was sufficient evidence to prove that the prosecutrix was, through lunacy or any other unsoundness of mind, incapable of giving legal consent to an act of sexual intercourse.

Dr. C. F. Walker testified for the state that prosecu-trix was “what we classify as a moron by an intelligence test, and I would say she had the mind of a child of about ten years old.” The witness would not undertake to state whether or not prosecutrix would know the nature and probable consequences of an act of sexual intercourse.

Bill George, father of the prosecutrix, stated that she couldn’t remember things, wasn’t much of a hand to write, and talked to herself; that she could read, and sometimes went out by herself. That he noticed a change in her about two years before the trial, when she started attending a meeting where the defendant was preaching.

Edna George, the prosecuting witness, testified that she was 26 years old. She had been to school a part of the time until she was 15, and had reached the fourth grade. She could read, write, count, and make change. At 15 she was forced to quit school because of the illness of her mother, and since that time she had done the housework and cooked for her family of nine people.

Prosecuting witness and her family were members of defendant’s congregation. Church services were held daily. The first time the preacher asked her to come to the church in the morning so that he could pray for her was “about June.” She went to the church. Defendant locked the doors and had intercourse with her. After that they had intercourse in the church two¡ or three times, at intervals of about two weeks apart. Defendant told her that the intercourse “wouldn’t be no harm.” Prosecutrix had a nine months old baby at the time of the trial.

The testimony of Edna George was lengthy. A large part of her examination was by the court. A portion of her testimony is as follows:

“Q. Do you know the nature and obligations of an oath, that is, do' you know what it means if you don’t tell the truth here to-day? A. Yes, I do. Q. What? A Don’t tell the truth, go to hell. Q. You know the difference between right and wrong? A. Yes, I certainly do. * * * Q. You know how the act of sexual intercourse is accomplished? A. Yes, sir. Q. You know as a consequence of such an act of intercourse that babies are born as a result of that? A. Yes, sir. Q. You knew that at the time you went up there? A. Yes, sir. Q. You went up there of your own free will and accord; nobody forced you to go- up- there? A. He asked — . Q. Brother Hacker asked you to-? A. Yes. Q. How far did you say you went in school? A. The fourth grade. Q. You were 15 when you quit? A. Yes. Q. Do you remember any of the teachers you had? A. Yes. Q. Tell the jury the names of some of them? A. Well, Maxine Hampton, Miss Dorothy Hicks, and Ray Warner. * * Q. How long after you quit going up to- the church to meet Brother Hacker to- have sexual intercourse with him that you told your folks, that you had gone up there and had sexual intercourse with him? A. I never told nobody. Q. You1 never did tell your folks you had gone up there and had sexual intercourse with him? A. No-, sir. Q. Never have told anybody? A. Oh, I told the folks afterwards. Q. How long afterwards was it you told them? A. Three months. Q. How long, if you remember now, since you went up to- the church? A. It has been — it will be two years in June. Q. Since you went up to- the church? A. It will be two- years then. Q. At home you do the housework, do- you no-t? A. Yes. Q. And the cooking? A. Yes, sir. Q. And do the chores? A. No, I don’t do the chores. I do- the housework. Q. You go to- town by yourself? A. No, I haven’t lately, but I used to, just once in awhile. Q. You buy things at the stores? A. Yes, sir. Q. Went to the fourth grade in school? A. Yes sir. Q. Knew the nature and possible consequences of the act of sexual intercourse, at the time you went up to the church? A. Yes, sir. * * * Q. You know what a birth certificate is? A. Yes. Q. In filling that out did you give the father’s- name on that birth certificate? A. Yes. * * gy the Court: Q. How old were you when you started to go to school? A. Oh, about seven. Q. And went until you were 15? A. Yes. Q. Did you go every year? A. We — I wouldn’t go often enough to make my grades every year; always missed and helped work. * * * Q. How old were you when you first found that o-ut and knew what it was (sexual intercourse) ? A. Oh, 12 or 13 years old. * * * Q. Why did you have intercourse with this man? Just tell me that- the best you can, why you did, and the reasons for it, if you understand what I mean? A. Because he say wasn’t no harm. Q. Did you believe that? (No answer). Q. Did you believe it wasn’t any harm? A. No, I didn’t believe it. Q. Why did you do it? (No answer). Q. I just wanted you to tell me the best you can at the time? A. I felt it wasn’t right. Q. You thought it wasn’t right then? A. Yes, sir. * * * Q. How many chickens on the place? A. About 50. Q. What kind of chickens are they? A. Oh, just Buff Orph-ingtons. Q. What kind of chickens you like the best? A. I like Buff Orphingtons, best. Q. Why? A. Because they look like they are the prettiest. Q. Which ones lay the most eggs, you think? A. I think they do. Q. You ever raise any other kind of chickens? A. Yes, we just raised mixed chickens. Q. Got any hogs? A. The folks have got them. Q. What kind are they? A. These red ones. * * * Q. How long have you lived there by Grove? A. Well, we have lived where we are at a year — about two years; this is the third year. Q. Who* owns the place? A. Well, Bert Slocum used to own it, but I don’t know the man now; he lives in Texas. Q. You rent it? A. Yes. Q. How much rent do you pay? A. We give him half of the grapes and a third of the rest. * * * Q. How long after you had intercourse with this man until your baby was born? A. Nine. Q. Is that how long it takes to have a baby? A. Yes. Q. How long have you known that? A. I have known it a long time. Q. Ever since you was a little girl 12 or 13 years old? A. Yes. Q. Did you know if you had intercourse with a grown man that you was liable to have a baby? A. I knowed it. Q. How long you known that? A. A long time. * * * Q. Well, did you say anything to him about you might have a baby if you had intercourse with him? A. No, sir. Q. But at the time you did it you mean you was afraid to? A. Yes. Q. What- did he say? A. Didn’t say nothing. Q. Did you tell him why you was. afraid to? A. Yes. Q. He didn’t say anything? A. No, sir. * * * Q. But you do know a man can be sent to the penitentiary for doing that? A. I think so. Q. What kind of a place is the penitentiary? A. Well, I never did see it. Q. What is one for? A. For people to stay in— mean people. Q. People that do something and are sent down there? A. Yes. Q. Are they turned loose down there? A. Kept in a jail house. Q. What do they have to do? A. Soane of them have to work. I have never been around one — just heard, hearsay. * * * Q. Who was the first person you told about this ? A. I told my sister. Q. How many days are there in a month? A. Well, some 31, some of them 30. Q. Is any of them less than 30? A. One, 28. Q. You know that little rhyme, that little verse, about the days in the month, about ‘Thirty days hath September, April, June and November’? A. I heard it. Q. Can you repeat that? A. I never did look at the month. Q. What month of the year has less than 30 days? A. February. Q. How many days does it have? A. Twenty-eight sometimes. Q. How many days in a year? A. 365. Q. What state is this we are living in? A. Oklahoma. * * Q. Have you known any other girls that had babies that wasn’t married? A. Yes sir, I do. Q. Did you know them before you got into this trouble with this man? A. Yes. Q. Who were some of them? A. Well, Martha Ann Melton. She used to be a Melton. Q. Did you go to- see her? A. No. Q. Did you go to see her before she had the baby? A. No-, sir, I saw her in town. Q. What did people say about her; did they talk about her in any way? A. Yes, sir. Q. What did they have to say about her? A. Oh, they just laughed about it. Q. Did you understand the people would laugh at you like that if you had a baby? A. Well, I didn’t go nowheres. Q. Did you care what people said about you? A. Well, I didn’t go where they did. Q1. I know, but did you care what people said about you? A. Yes, sir, I did. Q. Now, after you had intercourse with this man, were you worried; did you think you might get something wrong with you, and have a baby? A. Yes. * * q_ which would be the worst, to have intercourse with a married man or single man? A. With a married man. * * Q. What day of the year is Christmas-on? A. 25th of December. Q. Suppose you would buy 65 cents worth of groceries' from the clerk and you would give him a dollar; how much change would you get? A. I would get 35 cents. * * * Q. You say you know at this time it is wrong to have intercourse with a man? A. Yes. Q. At the time you first had intercourse with Hacker, he told you there wasn’t any harm in it, and wanted to pray for you, and took you up and laid you down on this quilt, did you think it was wrong then? A. Yes. * * * Q. Did you think that every time you had intercourse with a man you had a haby, or Avhat did you think? A. I don’t think it happens every time.”

This action was brought under section 2515, O. S. 1931, 21 Okla.St.Ann. § 1111, which provides:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator * * * where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving] legal consent.” ■

Section 2518, O.S.1931, 21 Okla.St.Ann. § 1114, states:

“Rape committed by a male over 18 years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent * * * is rape in the first degree.”

This court said in Adams v. State, 5 Okla. Cr. 347, 114 P. 347, 350, that:

“Legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and feeble intellect, or it may not.”

The only circumstance offered by the state to show that prosecutrix Avas incapable of giving legal consent by reason of lunacy or unsoundness of mind is that she was considered to have the mentality of a child of ten or twelve. No opinion, either lay or expert, was expressed that she was incapable of legal consent, and no basis for such opinion was laid, with the exception of her low mental age.

The trial court, in discussing the demurrer of the defendant to the evidence of the state, expressed his views concerning the law relating to this proposition as follows:

“It seems that the Legislature has declared a public policy iu this state by saying that intercourse with a female under the age of 14 years, is rape in the first degree, and therefore such female is incapable of giving consent, in that she didn’t know the nature and consequences of sexual intercourse, which is a conclusive presumption of the statute. Therefore, in construing the words ‘legal consent’, in this particular lunacy or incompetency section of the statute, this court is of the opinion that such female who is alleged to be a lunatic, or of unsoundness1 of mind, should in some degree be compared with the average girl of 14 years of age, or less.”

It is apparent that the trial court thought the fixing of the mental age of the prosecutrix at less than 14 years was sufficient evidence to justify submitting’ this issue to the jury.

We cannot agree with this construction of the statute. It is probable that the Legislature, in fixing the age of 14' as the dividing line, had in mind not only the mental age of girls, but also their physical development. However, here we have a 26-year-old woman, fully developed and normal in all respects physically. If she has any crippled limbs or other parts of the body such as are frequently found in cases of this character, no mention of the same was made in the evidence.

Following the holding of this court that the degree of intelligence necessary to give legal consent may exist with an impaired and feeble intellect, or it may not, it is necessary for the state to show more than mental age, which was not done in this case.

The appearance and demeanor of the woman alleged to have been ravished, her general intelligence as indicated by her answers to the questions by the county attorney, counsel for defense, and the court, are important matters entitled to consideration in determining whether she lacked sufficient mental capacity to give legal consent to the act of sexual intercourse.

Prosecuting witness’ examination in regard to- her .capability to give consent, as measured by the rule set out in Adams v. State, supra, showed that she had a thorough understanding of the sexual act at the time of its consummation, its nature and possible consequences, even to the point of knowing that it was less wrong to cohabit with a single man than a married man.

In many jurisdictions, including; this one, it has been held that whether the female possesses mental capacity sufficient to give legal consent must, save in exceptional cases, remain a question of fact for the jury. Adams v. State, supra; Lee v. State, 43 Tex.Cr.R. 285, 64 S.W. 1047; Williams v. State, 125 Tex.Cr.R. 477, 69 S.W.2d 418; People v. Griffin, 117 Cal. 583, 49 P. 711, 59 Am.St.Rep. 216; State v. Simes, 12 Idaho, 310, 85 P. 914, 9 Ann. Cas. 1216.

We have no occasion- to say or suggest anything in mitigation of the conduct of the accused, if the story told by the young woman is true. His conduct, to say the least, is reprehensible. The crime for which the state elected to prosecute him requires that the mental incapacity of the woman to give consent be established beyond a reasonable doubt. Lacking this, his conviction cannot be upheld.

The judgment of the district court of Delaware county is reversed, with instructions to dismiss.

It is so ordered.

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


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    SAM LATTA v. STATE.
    No. A-9890.
    Oct. 29, 1941.
    (118 P. 2d 671.)
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen and J. Walker Field, Asst. Atty. Gen., and June Bliss, Co. Atty., of Tahlequah, for the State.
    W. W. Miller, of Tahlequah, for defendant.
   BAREFOOT, P. J.

Defendant, Sam Latta, was charged in the county court of Cherokee county with the crime of selling beer without a license, was tried, convicted and sentenced to pay a fine of $100 and serve 30-days in the county jail, and has appealed.

It is contended by defendant that the evidence was insufficient to sustain the judgment and sentence, that certain remarks of the court during the trial were prejudicial to the defendant, and that the judgment and sentence under the facts was excessive. All of these may be considered together.

The facts were that defendant, Sam Latta, had during the year of 1938 been engaged in the cafe business at another location in Cherokee county, and during this period had a state and county license to sell beer at that location. On or about June 1, 1939, he purchased a cafe commonly known as “Sam’s Cafe” located on North Muskogee avenue, in the city of Tahlequah. Prior to the purchase of this place of business he had taken out a state license to sell beer at his former place of business on the 3rd day of November, 1938. He had this state license transferred to the place of business which he had purchased on North Muskogee avenue in Tahlequah. On or about June 1, 1939, he made application to the county judge of Cherokee county for a license to sell beer, as provided by Oklahoma Session Laws of 1933, chapter 153, p. 343, §§ 12 and 14, O.S.A. Title 37, §§' 159 and 161, which are as follows:

(1) “It shall be unlawful for any person, or persons, firm, or corporation to maintain or operate any place where any beverage containing more than one-half of one per cent (1/2 of 1%) of alcohol measured by volume and not more than three and two-tenths (3.2) per cent measured by weight is sold for consumption on the premises without first securing a license issued by the county judge. The person applying for such license must make a showing1 once a year, and must satisfy the county judge that he is a person of good moral character, that he has never been convicted of violating any of the laws prohibiting the traffic in any spirituous, vinous, fermented or malt liquors, or any of the laws commonly called 'Prohibition Laws/ or convicted of violating any of the gambling laws of the State of Oklahoma, or any other State or of the United States of America. A fee of five ($5.00) dollars per year shall be charged by the county judge for thei issuance of such license. Upon application being filed the county judge shall give five (5) days’ notice by posting such notice. One of said notices to be posted in the county court house and three in the city or township where said beverages are to be sold. Said notice shall contain the name of the applicant and the location of said place of business. Any citizen of said county may appear before the county judge in protest of the issuance of said license.”
(2) “In addition to the penalties herein provided for violations of sections 2, 8, and 4, of this Act, each and every person who> refuses to permit the examination of his books, records and files or who ignores or violates the provisions of this Act or the rules and regulations of the Oklahoma Tax Commission, made pursuant hereto, or who shall engage in the sale of said beverages, at retail in violation of the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than fifty ($50.00) dollars nor more than five hundred ($500.00) dollars and by imprisonment in the county jail for a period of not less than thirty days nor more than six months. * * *”

He paid the $5 required, but for some reason a hearing was not had on the application and no license was granted defendant thereon. He testified that the county judge was absent on his vacation and that this was the reason for the delay. He also testified that no protest was filed against the application. The county attorney contended that he filed an oral protest for the reason that defendant had been twice convicted of the violation of the prohibition laws of the state in the city court of Muskogee.

The defendant presented to the jury as his defense that he thought he had a right to sell beer pending the application, inasmuch as he had deposited the amount of money required by the statute and there had been no written protest, and that he alsoi had a state license. He contended that he acted in good faith and did not intentionally violate the law.

The evidence was uncontroverted that he sold beer on the date alleged in the information, to wit: July 28, 1939, and that he did not have a county license on that date, although he did have a state license.

From the above statement of facts it cannot be doubted that defendant had no right under the law to' sell beer at his place of business on North Muskogee avenue in Tahlequah until he had received both a state and county license. This rule is well stated in 33 Corpus Juris 540, § 119, where it is said:

“Compliance with all the conditions necessary to obtain a license is not equivalent to the actual issue of a license. Although a person may have presented a proper and sufficient application, executed the required bond, and tendered the proper fee, he cannot legally begin selling until he has received the license.”

Under this quotation there is cited the case of Territory v. Robertson, 19 Okla. 149, 92 P. 144, in which the Territorial Supreme Court upheld this doctrine and in which case are cited a number of decisions in support thereof, as follows: State v. White, 23 Ark. 275; Roberts v. State, 26 Fla. 360, 7 So. 861; Franklin v. Stringam, 56 Ill.App. 94; People v. Gault, 104 Mich. 575, 62 N.W. 724; Jordan v. Bespalec, 86 Minn. 441, 90 N.W. 1052; State v. Huntley, 29 Mo.App. 278; Shea v. Muncie, 148 Ind. 14, 46 N.E. 138; Curry v. State, 28 Tex.App, 477, 13 S.W. 773. Under this rule there can be no question of the violation of the law notwithstanding the fact of the good faith of the defendant, and for this reason we cannot do otherwise than uphold the judgment and sentence.

We have carefully examined the record and, without discussing the same, have come to the conclusion that the judgment and sentence should be modified to the minimum punishment provided by the statute of a $50 fine and 30 days in jail. There are some facts in the record which lead us to believe that defendant should have known that he had no right to engage in the sale of beer without first procuring the county license, as required by statute.

The proposition that defendant was sentenced ten days after the verdict was returned is passed upon adversely to this contention in the case of Clyde Harvey v. State, 73 Okla. Cr. 132, 118 P. 2d 669.

For the reasons above stated, the judgment and sentence of the county court of Cherokee county is modified from a judgment and sentence of $100 fine and 30 days in jail to' a fine of $50 and 30 days in jail, and as so1 modified is affirmed.

JONES and DOYLE, JJ., concur.


text:
    CLYDE HARVEY v. STATE.
    No. A-9889.
    Oct. 29, 1941.
    (118 P. 2d 669.)

      Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and June Bliss, Co. Atty., of Tahlequah, for the State.
    W. W. Miller, of Tahlequah, for defendant.
   BAREFOOT, P. J.

Defendant, Clyde Harvey, was charged in the county court of Cherokee county with the crime of unlawful possession of intoxicating liquor, to. wit: approximately 12y% pints of whisky and one pint of gin; was tried, convicted and sentenced to. pay a fine of $100 and serve 60 days in the county jail, and has appealed.

For reversal of this case it is contended:

First. That the verdict of the jury is contrary to the evidence and is not sustained by sufficient evidence.

Second. That the court, lost jurisdiction to pass sentence and was without authority to sentence after the ten-day period had expired subsequent to. the date of the conviction under Okla. Stats. 1931, § 2632, O.S.A., Title 37, § 12.

Third. The punishment is excessive for a first time offender, if guilty.

The evidence in this case reveals that defendant was operating a place known as “The Country Club” near the city of Tahlequah on the 15th day of April, 1939; that it was a place of public resort and the public was invited! thereto; that the premises had a bar and a dance hall, and defendant and his wife lived there in a room adjoining the dance hall, with a curtain attached; that the place had the general reputation of being a place where intoxicating liquors were kept and sold in violation of law; that on the 15th day of April, 1939, the sheriff of Cherokee county procured a search warrant and with other officers searched the premises; that as a result of this search there were obtained 12% pints of tax-paid whisky and one pint of gin. That it was found in a 'baby buggy in the bedroom of defendant. The evidence further revealed that defendant was present at the time of the search. That he was running the place of business, and that an Internal Revenue License, covering a period from April 1, 1939, to June 30, 1939, was located on the premises and was introduced in evidence. The defendant denied the possession of the liquor and stated that the Internal Revenue License had been taken out after the search to1 protect him from the federal authorities in the event he was found guilty of possession of the liquor. From the above statement it will be readily seen that the evidence, although contradictory, is sufficient to sustain the judgment and sentence.

It has been held by this court that, where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to' convince the jury beyond a reasonable doubt of the guilt of the defendant, the verdict of the jury will not be set aside on appeal. This is especially true where there is a conflict in the evidence. Adams v. State, 54 Okla. Cr. 363, 21 P.2d 1075; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507.

The contention of the defendant that the court lost jurisdiction to pass sentence and was without authority to sentence after the ten-day period had expired subsequent to the date of the conviction is based upon Oklahoma Statutes 1931, section 2632, O.S.A., Title 37, § 12, which isi as follows:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty (f50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the State Penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.”

The general statute which provides for sentence after verdict of guilty is found in Oklahoma Statutes 1931, sections 3125, 3126 and 3136, O.S.A., Title 22, section 961, 962, and 972, which are as follows:

“After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.”
“The time appointed must be at least two days after the verdict, if the court intend to remain in session SO' long; or, if not, at as remote a time as can reasonably be allowed.”
“If no sufficient cause be alleged or appear to the court why judgment should not be pronounced it must thereupon be rendered.”

In the following cases, Dalton v. State, 6 Okla.Cr. 368, 118 P. 1001; Ex parte Sparks, 9 Okla.Cr. 665, 132 P. 1118; Barrett v. State, 39 Okla.Cr. 50, 263 P. 166; Willard v. State, 67 Okla.Cr. 192, 94, P.2d 13; Ex parte Coley, 67 Okla.Cr. 482, 94 P. 2d 968, this court has had under consideration a construction of these statutes. It has been held that they were enacted to> guard the defendant from a hasty judgment and to give the defendant sufficient time to file and prepare a motion for new trial or in arrest of judgment and time to properly present these motions. In the instant case the verdict of guilty was returned by the jury on the 12'th day of February, 1940. A motion for new trial was filed February 13, 1940, and on the 4th day of March, 1940, the motion for new trial was overruled and defendant was sentenced in accordance with the verdict of the jury.

There was certainly no unnecessary delay in this action of the court. There being-; nx» record to the contrary, it will be presumed that the judgment and sentence was pronounced at a time appointed by the court and in conformity with the requirements of the statute. From the statement of the facts as above set forth it does not occur to us that the judgment and sentence in this case was excessive. Harrison v. State, 24 Okla.Cr. 282, 217 P. 893.

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

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    WALTER FRICKENSCHMIDT v. STATE.
    No. A-9866.
    Oct. 29, 1941.
    (118 P. 2d 668.)

      Paul B. Haunstein, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Walter Frickenschmidt, was charged by information on October 26, 1939, in the district court of Garfield county, Okla,., with embezzlement of 15 head of cattle belonging to A. Kirkpatrick, was tried, convicted and sentenced to serve one year in the State Penitentiary, from which judgment and sentence he appeals to this court.

A petition in error and case-made were filed in this court on May 17, 1910. No briefs were filed, and no oral argument had.

Petition in error sets out misconduct of the county attorney, error of the court in admitting incompetent evidence and in giving certain instructions, and that the verdict is contrary to the law and the evidence.

Evidence for the state showed that defendant was allowing 15 head of prosecuting witness’ cattle to graze on his land for a consideration; that on the 9th of September, 1939, prosecuting witness sold a wheat drill to defendant for $125. Both the prosecuting witness, Kirkpatrick, and his wife signed a receipt for the money received from defendant on that date. (The receipt shows the date as September 6, 1939). That defendant altered the receipt by changing, $125 to $525 and adding the words “fifteen head mixed cattle.”

The evidence further shows that on August 18, 1939, defendant mortgaged 67 head of cattle to the First State Bank of Covington. This mortgage included prosecuting witness’ cattle.

On September 8, 1939, defendant sold 19 head of cattle, including the 15 claimed by prosecuting witness, through the Wright-Halliburton Live Stock Commission Company of Oklahoma City; defendant gave his name as owner of the cattle, and the check for the cattle was. made payable to defendant and cashed by him. That Kirkpatrick had never sold the cattle to defendant and did not authorize defendant to sell the cattle.

In his defense, the defendant claimed to have bought the cattle from Kirkpatrick for $400 at the time he bought the drill for $125, and paid $525 to Kirkpatrick, as evidenced by the receipt executed by prosecuting witness at that time.

This conflicting evidence raised an issue of fact for the determination of the jury.

In Smith v. State, 70 Okla.Cr. 81, 104 P.2d 1009, it is stated:

“In a felony case where defendant appeals from a judgment of conviction, and no brief is filed or oral argument made, this court will examine .the record and the evidence and, if no. error prejudicial to the substantial rights of the defendant is found, the judgment of the trial court will be affirmed.” Hance v. State, 2 Okla. Cr. 124, 100 P. 260.

The evidence offered by the state was amply sufficient to support the conviction; however, we do not consider it the duty of the court to minutely examine the evidence to determine whether the trial court erred in the admission or rejection of testimony, where there is no brief filed nor oral argument made. Ballard v. State, 16 Okla.Cr. 263, 182 P. 524.

We have carefully considered the record, and find no error which would warrant a reversal of the judgment.

The judgment and sentence of the district court of Garfield county is affirmed.

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


text:
    H. W. NOTT v. STATE.
    No. A-9888.
    Oct. 29, 1941.
    (118 P. 2d 667.)
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
    Willis R. Stark, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, H. W. Nott, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: twelve pints of tax-paid liquor; was tried by the court without the intervention of a jury and found guilty and sentenced to' pay a fine of $75 and to serve 30 days in the county jail, and has appealed.

Defendant in his petition in error makes nine assignments of error, all of which may be considered under the proposition that there was not sufficient evidence to justify the court in finding the defendant guilty of unlawful possession of intoxicating liquor.

With respect to this contention, we deem it sufficient to say that we have carefully examined the record in this case and find nothing to sustain the contention of the defendant. The evidence shows that two Oklahoma City police officers^, Roy Cook and Gr. E. Kaufman, saw defendant’s automobile parked on a public street in Oklahoma City, about- 10 o’clock p. m. on the 17th of October, 1939. Inside the car on the back seat, in plain view from the outside, they saw several bottles of liquor. They waited near the car for about 20 minutes and watched the defendant make several trips to the car before he was arrested. He admitted at the time of his arrest that the car belonged to him and that he drove it, but said that the liquor did not belong- to him.

The defendant took the witness stand to testify in his own behalf, saying that he had not driven the car on that day and had not been near it before the time of his arrest. On cross-examination he admitted that he had been previously convicted three times for violations of the prohibition laws of the state. Other witnesses testified for defendant, saying that he had not been near the car that evening prior to his arrest.

This appeal was filed on the 15th day of June, 1940. No brief has been filed by defendant and no oral argument was made. Under the rulings of this court, if the defendant has not filed his brief or made oral argument it is only necessary to examine the record to' see that no fundamental error which would deprive defendant of a fair and impartial trial has been made by the trial court. Smith v. State, 72 Okla.Cr. 314, 115 P.2d 925; Webb v. State, 72 Okla.Cr. 346, 116 P.2d 212; Stone v. State, 72 Okla.Cr. 148, 114 P. 2d 184. Prom this statement it is clear that the trial court was- justified in finding defendant guilty of unlawful possession of intoxicating- liquor.

For the reasons aboye stated the judgment and sentence of the conrt of common pleas of Oklahoma county is affirmed.

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


text:
    JIMMY FRENCH v. STATE.
    No. A-9867.
    Oct. 29, 1941.
    (118 P. 2d 664).
    W. Shearer Brown, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jimmy French, was charged by information in the district court of Muskogee county, on September 18, 1939, with assault with a sharp or dangerous weapon, was tried and convicted; but the jury was unable to agree on the punishment, and the court thereupon sentenced him to serve 15 months in the State Penitentiary; and he appeals to this court.

Counsel for defendant contends that the court erred in overruling defendant’s demurrer to the information, that the evidence is insufficient to1 support the conviction, and that the punishment imposed is excessive.

The charging part of the information is as follows:

* * That Jimmy French did, in Muskogee county, and in the State of Oklahoma, on or about the 19th day of August, 1939, and anterior to the presentment hereof commit the crime of 'Assault with a Dangerous Weapon’ in the manner and form as follows, to wit: That the said Jimmy French did then and there knowingly, willfully, wrongfully, unlawfully, intentionally and feloniously without justification or excusable cause make an assault in and upon one -Marlin M. Meyer with a certain knife, said knife being then and there a dangerous and sharp instrument and weapon, and then and there had and held in the hands of him, the said Jimmy French, and that the said Jimmy French did then and there with said knife so had and held as aforesaid, strike, cut, stab, wound and injure then and there the said Marlin M. Meyer, with the unlawful, wrongful and felonious intent then and there on the part of the said Jimmy French to do- bodily harm and injury to- the said Marlin M. Meyer * *

The authorities cited by counsel for defendant in connection with his first assignment of error involved cases filed under section 1873, O.S.1931, 21 Okla.St. Ann. § 652, which, among other things, malees it a felony for any person to- commit any assault and battery upon another by means of any deadly weapon. In a charge filed under that statute, we have held that when the weapon charged to have been used is not a deadly weapon per se, a sufficient description of such instrument, the manner in which it was used, and the effect produced by the use thereof should be set forth. An ordinary pocket knife is not per se a deadly weapon. See Ponkilla v. State, 69 Okla.Cr. 31, 99 P.2d 910; Moody v. State, 11 Okla.Cr. 471, 148 P. 1055.

However, where an information is filed under section 1870, O.S.1931, 21 Okla. St. Ann. § 645, Avhich is the statute involved in the action herein, this court has uniformly held that informations, such as the one set forth herein, are sufficient to advise the defendant of the nature of the charge against him and to enable him to prepare his defense thereto, and that a demurrer to such information is properly overruled. Bruner v. State, 69 Okla. Cr. 317, 102 P.2d 945; Spencer v. State, 49 Okla.Cr. 208, 293 P. 278; Fields v. State, 13 Okla.Cr. 731, 167 P. 344.

The state introduced testimony to the effect that the prosecuting Avitness, Marlin M. Meyer, had a date with Doris Brooks on the 19th of August, 1939. Amy Ervin accompanied Meyer and his date to the Manhattan Club, where they stayed for several hours. Sometime about midnight, Doris Brooks and the prosecuting witness decided to go home, but they were unable to find Amy Ervin. They Avent outside and called to- her. She ansAvered from behind the club, where it was dark. Meyer told her that they were ready to go home. She said for them to wait a minute; and the defendant, who was with her, stated, “She is not ready to go.” ■ Prosecuting witness said, “Come on, Amy. We have got to' go home.” The defendant made the alleged assault upon Meyer at that time. There was a scuffle. Meyer had a cut over the left ear, on the right temple, and on the left middle finger. He was taken to the kitchen of the club for first aid, and then to the hospital. The bleeding had stopped before the doctor treated him.

Meyer stated that defendant struck him with an object that looked like a knife.

Amy Ervin testified that she and the defendant had been keeping company for several months. Her testimony about what happened when Meyer came to where she and the defendant were sitting is substantially the same as that related by Meyer. She further said that she saw the defendant draw a knife on Meyer, but did not see him open it because he put his hands behind him. That she and defendant left after the difficulty and drove to Wagoner1; that she saw the defendant throw the knife that he had used in the fight away, while they were in Wagoner.

Doris Brooks testified concerning the fight, but did not see the knife.

Harley Ellis, operator of the Manhattan Club, saw something flash in the defendant’s hand, but was not positive it wasi a knife.

Dr. John R. Rafter, who treated defendant after the fight, stated that he took four stitches over the left ear, one in the right temple, and one on the left middle finger. The cut on the left ear could have been caused by a, blunt instrument, but the other two> were caused by a sharp instrument.

The defendant did not testify, and the evidence offered in his behalf was of little consequence.

We think the evidence is sufficient to sustain the conviction, since it was believed by the jury. The state has shown that defendant had a knife at the time of the scuffle; that prosecuting witness was struck in the dark by defendant, and sustained injuries which were made by a sharp instrument. There is no merit to the contention, under these circumstances, that the evidence is insufficient because the knife was not particularly described.

In the case of Reardon v. State, 51 Okla. Cr. 432, 2 P.2d 100, 101, it is stated:

“The first contention is that the evidence is insufficient to sustain the judgment, particularly for the reason that the testimony of the use of knucks is not positive. The difficulty occurred at about dark, and. under the circumstances, a particular description of knucks in the hands of defendant is not to be expected. The testimony presented a clear-cut question of fact which the jury by their verdict have found against defendant.”

The jury, after' a consideration of the facts, returned a verdict of guilty, but left the punishment to the court, who sentenced the defendant to 15 months in the State Penitentiary.

Counsel for defendant was appointed by the district court of Muskogee county, and he has done an able job in presenting this case for the defendant.

It is urged that, under the circumstances, the punishment imposed is excessive. Ordinarily, this court will not interfere with the punishment imposed by a trial court where the defendant has not taken the witness stand in his own behalf. When the defendant does not testify, this court is not advised as to whether he has been formerly convicted of a crime; and for that reason, we hesitate to interfere with the punishment imposed by the trial court, who' might be in possession of more facts concerning the defendant than mig'ht appear in the record before us.

However, after considering all of the facts and circumstances in connection with this affray, we have come to the conclusion that the punishment imposed is excessive and should be reduced to one year in the State Penitentiary.

It is therefore ordered that the judgment of the district court of Muskogee county is modified by reducing the sentence imposed upon the defendant from 15 months in, the State Penitentiary to a term of 12 months in the State Penitentiary; and the judgment, as thus modified, is affirmed.

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


text:
    FRED ALLGOOD v. STATE
    No. A-9861.
    Oct. 29, 1941.
    (118 P. 2d 662.)
    W. T. Jeter, of Mangum, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Fred Allgood, was charged in the county court of Greer county, on July 22, 1939, with the unlawful possession of intoxicating liquor, tried, convicted and sentenced to serve 30 days in the county jail and to pay a fine of $100, and appeals to this court.

Defendant contends that the court erred in refusing1 to sustain his motion to suppress the evidence.

The affidavit for the search warrant and the search warrant, under authority of which the officers went to defendant’s premises, stated “that the Northwest Quarter of Section 23, Township Five North, Eange 22, W. I. M., Greer County, Oklahoma, including residence, bams, sheds, cribs, dugouts and other out buildings on said lands, are premises and places Avhere John Doe is willfully and unlawfully manufacturing, and keeping, and has in his possession for the purpose of, and is selling, bartering, giving away and otherwise furnishing, intoxicating liquors,” etc. The search warrant further commanded the officer to “go upon and make due and diligent search in the day or night time of all the above described premises and places.”

On the hearing upon the motion to suppress the evidence, the officers stated that they did not know in which house upon this quarter section the defendant lived, and that several families lived upon the quarter section in question.

Three officers, Lester Hawkins, Dick York, and Tom Owen, drove out to' the quarter section described in the Avarrant and stopped in front of a building Avhich formerly had been used as the Mangum Mattress Factory and' recently was moved out to' this land. The officers did not know what the building was being used for at the time; however, they thought that it might be a garage. This building was 30 or 40 yards from defendant’s house.

Owen went to one of the houses on the described quarter section to inquire about defendant. York and Hawkins went into the mattress factory building, through an open door. They were using flashlights. At one end of the building, partially concealed, wasi some whisky. Defendant appeared, and the search warrant was served upon him. He admitted that the whisky was his.

The trial court held that the search warrant was void, as being a blanket search warrant, but stated that in his opinion no search warrant was necessary since a misdemeanor had been committed in the presence of the officers.

Under the uniform decisions of this court, the search warrant in question is void.

In Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131, 132, it is stated:

“Affidavit for search warrant, describing the place to be searched as a certain section of land, and without naming the owner, is insufficient to furnish the particular description of the place to be searched, where it appeared that the land so designated was owned and occupied by several persons, so that it was in fact several places.” Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; Daniels v. State, 32 Okla. Cr. 426, 241 P. 836.

The officers, under their own testimony, went upon the premises under authority of this void warrant, were looking for whisky, and found it. Defendant claimed the whisky.

In Gore v. State, 24 Okla. Cr. 394, 218 P. 545, it is stated:

“Any articles, papers or property seized by the officers or agents of tbe court, under color of an unreasonable or unauthorized search and seizure, taken from the home, office, or private premises of one accused of an offense, should not be used as evidence against an accused, where timely objections are made to the introduction of such evidence so illegally obtained.” Russell v. State, 25 Okla. Cr. 423, 221 P. 113.

This court held in Ellis v. State, 34 Okla. Cr. 36, 244 P. 831:

“In a prosecution for unlawful possession of intoxicating liquor, defendant cannot be convicted upon evidence obtained by a search and seizure of defendant’s premises without a warrant authorizing it, and neither the liquor so seized nor evidence of the possession thereof so acquired is admissible against him.”

This case must be reversed because of the inadmissibility of the evidence.

Accordingly, the case is reversed and remanded to the trial court, with instructions to dismiss.

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


text:
    JOHN W. JACKSON v. STATE.
    No. A-9883.
    Nov. 5, 1941.
    (118 P. 2d 1044.)

      Holly Anderson, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, John W. Jackson, was charged on February 3, 1940, in the court of common pleas of Tulsa county, jointly with L. W. Curry, with the offense of unlawful possession of intoxicating liquor, tried, convicted and sentenced to serve a term of 60 days in jail and to pay a fine of $ 100, and appeals to this court.

Counsel for defendant contends in his brief that the court erred in overruling’ his motion to suppress the evidence, and that the evidence is insufficient to support the conviction.

The officers’ return upon the search warrant issued for defendant reads as follows:

“Received the within writ at............. o’clock on the 3rd day of Feb. 1940. That on the 3rd day of Feb., 1940, I made service thereof by a search of the premises within described, and by seizing the following described liquors, implements, furniture and fixtures therein kept, to wit: One 25 gallon copper still, 800 gal. of mash and 4 gallon of corn whisky. That I found said property in the possession of one L. H. Curry; that I served the within writ by delivering a true and correct copy thereof personally to one John W. Jackson; that I found no- person in possession thereof; that I made services of said writ of posting a true and correct copy of said warrant on the door of the building and room wherein said described property ivas found.”

The contention on behalf of defendant is that the return to the search warrant should reflect actually and truthfully the proceedings had by the officers, and that the return of the search warrant in this case is not consistent and cannot be true.

Section 2635, O.S.1931, 37 Okla. St. Ann. § 84, which is a part of the Enforcement Act, states that the officer1 should make a return of the search warrant “within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any, and if no person be found in the possession of said property and things, his return shall so1 state. A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same is found.”

On the hearing upon the motion to» suppress the evidence, it was shown that the officers went to the premises described in the Avarrant. They served the warrant upon Curry, Avho was in a shed a,t the back of the lot, in which shed Avas a still, some mash, and whisky. Officers arrested Curry, and then went into' a house in front of the shed and arrested defendant.

The return complained of Avas made after the above search.

Section 3233, O.S.1931, 22 Okla. St. Ann. § 1233, provides:

“The officer must forthwith return the warrant to the magistrate, and deliver to him a Avritten inventory of the property taken, made publicly, or in the presence of the person from whose possession it was taken, and of the applicant for the warrant, if they be present, verified by the affidavit of the officer, and taken before the magistrate.” * * *

In Hensley v. State, 53 Okla. Cr. 22, 3 P. 2d 211, this court stated that if it appeared that the failure of the sheriff to observe the statutes, sections 2635 and 3233, O. S. 1931, supra, resulted in any prejudice to the defendant, the case would unhesitatingly be reversed.

In Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185, it was held:

“A search warrant, otherwise valid, which has been executed within ten days from the time it was issued, is not rendered invalid by failure of the officer to make a return thereof.” Hensley v. State, supra; Viadock v. State, 30 Okla. Cr. 374, 236 P. 56.

In Whitwell v. State, 65 Okla. Cr. 178, 83 P. 2d 881, 886, this court said:

“The Enforcement Act [which includes sec. 2635, supra] does not make invalid what was legally done under authority of a search warrant by failure of the officer to make due return thereon.”

No' explanation of the statements made in the return appears in the record. The search warrant was legally issued and executed; and, where such is the case, statements in the return are immaterial as bearing upon the validity of the search and seizure, unless defendant shows prejudice by reason of such statements.

Defendant’s motion to suppress the evidence was( properly overruled.

Defendant further contends that the evidence was insufficient to sustain the conviction.

On February 3, 1940, officers of Tulsa county, pursuant to a search warrant legally issued, made a search of certain premises in the city of Tulsa, which belonged to the defendant. There was a house on the front of the lot and a shed on the rear of the lot, about 20 feet from the house. The officers went directly to the shed, where they found the co defendant, Curry, with an apron on, working with a copper whisky still. In addition to the still, they found a gallon and half of whisky and some ten barrels of mash. After arresting Curry, the officers went to the house and found defendant, and arrested him. The defendant at that time stated to' the officers that he owned the premises, but that the whisky belonged to Curry. Curry entered a plea of guilty to the charge of possession of intoxicating liquor.

The defendant did not testify, and no. evidence was offered in his behalf.

After considering this evidence, it is our opinion that the state has made a prima facie case. The defendant was the record owner of the property on which the whisky was found. He was living in the house, just 20 feet from the shed where the still was in operation. We think that the size of the still, together with the fact that ten barrels of mash were found in the small shed belonging to the defendant, is sufficient in the absence of any explanation by the defendant to sustain the conviction.

This case was tried to the court without a jury; and, under the evidence, the trial court, was justified in concluding that the defendant and Curry were partners in this illegal enterprise.

The judgment of the court of common pleas of Tulsa county is accordingly affirmed.

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


text:
    HERSHELL BRANCH v. STATE.
    No. A-9882.
    Nov. 5, 1941.
    (118 P. 2d 1043.)
    Jack L. Spivey, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Hershell Branch, was charged by information in the district court of Oklahoma -county, on August 5, 1939, with burglary in the first degree, tried, convicted and sentenced to- serve seven years in the State Penitentiary at McAlester, Okla., and appeals to- this court.

Petition in error and case-made were filed in this court on June 6, 1940. No briefs have been filed and no oral árgument made.

Counsel for defendant sets out in the petition in error that the evidence is insufficient to- support the conviction, error of law occurring at the tidal, and error in the court’s instructions.

This court has many times held that in a felony case where defendant appeals from a judgment of conviction, and no brief is filed or oral argument made, this court will examine the record and the evidence and, if no error prejudicial to the substantial rights of the defendant is found, the judgment of the trial court will be affirmed. Frickenschmidt v. State, 73 Okla. Cr. 136, 118 P. 2d 668; Smith v. State, 70 Okla. Cr. 81, 104 P. 2d 1009; Hance v. State, 2 Okla. Cr. 124, 100 P. 260.

The record discloses that a full-blood Indian positively identified the defendant, a negro porter, as being the man who entered his room at the Villa Hotel, in Oklahoma City, and took $13 in cash from his pants pocket. There were other circumstances corroborating the story of the prosecuting witness. The defendant had just recently been released from the State Penitentiary, where he had served time by reason of a conviction of a similar charge while he was porter at another hotel.

We have read this record carefully and find the evidence is sufficient to' support the conviction, the instructions of the court proper, and no- error of law prejudicial to the substantial rights of defendant.

The judgment and sentence of the district court of Oklahoma county is affirmed.

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


text:
    In re OLEN GABLE.
    No. A-10042.
    Nov. 5, 1941.
    (118 P. 2d 1035.)

      Eight & Eight, of Claremore, for petitioner.

      Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Petitioner, Olen Gable, has filed in this court his petition for writ of habeas corpus, and as grounds therefor states that he is. now illegally restrained of his liberty in the State Penitentiary at McAlester. The record, the response filed by the warden of the penitentiary, and the briefs of the parties reveal that petitioner, Olen Gable, was on October 31, 1939, sentenced by the district court of Mayes county on a plea of guilty to serve a term of two years in the penitentiary for the crime of larceny of domestic animals, the same being case No. 1157. He was received at the penitentiary at McAlester on November 29, 1939, to begin said sentence, and his sentence expired on February 13, 1941.

The record further reveals that on November 28, 1939, the district court, of Rogers county (the same district judge presiding in both Mayes and Rogers counties), in case No1. 1694 against the petitioner, Olen Gable, sentenced him on a plea of guilty for1 the larceny of domestic animals to serve a term of two years in the State Penitentiary at McAlester. It was. provided in the judgment and sentence that it was “to run concurrent with sentence in Case No. 1157 Mayes county.” The petitioner, Olen Gable, Avas “dressed in” to1 serve out the Rogers county sentence in case No. 1694 at the expiration of the Mayes county sentence on February 13, 1941. Petitioner is now ■being required to serve out this time which will expire, with due allowance for good conduct and work credits, on May 30, 1942.

The record further discloses! that on the 2'5th day of February, 1941, or 13 days after petitioner began the service of his Rogers county sentence, application for writ of habeas corpus was filed by petitioner in the district court of Rogers county while he was confined in the State Penitentiary at McAlester, in Pittsburg county, it being contended that the judgment and sentence rendered in the district court of Rogers county in case No1. 1.694 on November 28, 1939, was invalid for the reason that the district court of Rogers county was without authority to make the judgment and sentence run concurrently with the Mayes county judgment and sentence. When this petition Avas heard by the district judge of Rogers county on March 4, 1941, he denied the petition for the writ for the reason that a habeas corpus action can only be maintained in the county where the petitioner is confined, Avhich Avas in this instance in Pittsburg county, not in Rogers county, holding that the petition could be maintained only in Pittsburg county or in the Supíneme Court or the Criminal Court of Appeals of this state. This was in accord with the holding of the Supreme Court of this state in the case of Ex parte Gonshor, .113 Okla. 101, 239 P. 249. Immediately upon the entering of the order denying the writ of habeas corpus, counsel for petitioner filed a motion in the original case against petitioner, No. 1694 in Rogers county, asking the court to set aside and vacate the judgment and sentence rendered in said cause on the 28th day of November, 1939, for the same reason stated in the application for writ of habeas corpus heretofore referred to. The court sustained the motion and entered an order attempting to vacate and set aside the said judgment and sentence. In said order it was stated: “Said Olen Gable entered his plea of guilty to said charge of cattle theft in Rogers county, Oklahoma, upon an agreement and stipulation with the county attorney of Rogers county, Oklahoma, and an acquiescence by this court that if the said Olen Gable would enter his plea of guilty to the cause in Rogers county, Oklahoma,, that the court would sentence him to a period of two years in the State Penitentiary at McAlester, Oklahoma, to run concurrently with the judgment and sentence imposed on the 31st day of October, 1939, in Mayes county, Oklahoma,” and for the reason that the court was without jurisdiction, as aforesaid, to make said two'-year term run concurrently with the two-year term in the Mayes county case. Said order also directed that:

“If and when the defendant has served and satisfied the judgment and sentence of the court rendered in the Mayes county case on the 31st day of October, 1939, being cause No. 1157 Criminal from Mayes county, Oklahoma, that the defendant be held by the warden of the penitentiary for the sheriff of Rogers county, Oklahoma, and that he be by the sheriff of Rogers county, Oklahoma, immediately returned to the county of Rogers said State of Oklahoma to await action of the court in this cause.”

The warden of the penitentiary at McAlester, upon the advice of the Attorney General of the state, refused to recognize the order of the district court of Rogers county to return petitioner tor Rogers county and so informed the court by letter. Petitioner then on the 24th day of March, 1941, filed his petition for writ of habeas corpus in this court for his discharge. The allegations are as set forth in the above statement.

It is contended by petitioner that by reason of these facts he is illegally restrained of his liberty and is being unlawfully confined in the penitentiary at McAlester. It is contended by the Attorney General, representing the warden of the penitentiary, that the restraint is not illegal and that he is rightfully being held by the warden under the judgment and sentence of the district court of Rogers county entered on the 28th day of November, 1939, and which will expire on May 30, 1942, as aforesaid.

There is no> question in this case but that it was the understanding and intention of the district judge, the county attorney, and the attorneys representing, the petitioner, that, when the judgment and sentence was entered in Rogers county in case NO'. 1694 on the 28th day of November, 1939, sentencing petitioner to two1 years in the penitentiary, the judgment and sentence should run concurrently with the Mayes county judgment and sentence entered on the 31st day of October, 1939. The record in this case contains a statement made by the district judge, and in this statement which was made at the time of entering the judgment, indicating that there was a doubt in his mind whether it could lawfully be done, he said:

“In the Olen Gable case, the county attorney was inclined to recommend leniency, but the matter of parole could not be considered since he had entered a plea of guilty and had been sentenced in Mayes county. The county attorney and the defendant, and his counsel had an understanding and, agreement, subject to the approval of the court, that the defendant, Gable, would plead guilty to the Rogers county charge, and take a sentence of two years', provided the court would order that it run concurrent with the two year sentence imposed in Mayes county.
“This was presented to the court by the county attorney, and the attorney for the defendant in the presence of the defendant, the sheriff, the defendant’s father, and other persons interested in the case, and the county attorney recommended that the understanding, and agreement be carried out.
“It was contended that such an order could be lawfully made by the judge, since he had heard both cases, and since the cases arose in the same judicial district. After some discussion, I stated that I was willing to follow the county attorney’s recommendation, and that under the facts and circumstance® in the case, I felt that it would be proper that the sentences run concurrent if it could lawfully be done. I stated that I had my doubts as to whether such an order could be made. My recollection is that the county attorney was of the opinion that it could be made. No- law was presented to the court, and I had never had the matter presented to me before. I sentenced Olen Gable to two years, and ordered that it run concurrent with the sentence I had imposed on him in Mayes county. * *
“Well, of course, I didn’t know this was going, to be —there was going to be any particular contest in this matter. As I said this morning, the defendant plead guilty in Mayes county, and then came over here and plead guilty through arrangements with the county attorney and the prosecuting witness — interested parties — with the understanding that if he plead guilty here, it would run concurrent with the Mayes county sentence. He came in before the court, and they presented the matter before the court, and stated the attitude of the prosecution and the attitude of the prosecuting witness, and other persons interested — stated what the agreement and understanding was with the defendant. At that time the court raised the question of whether or not such a sentence could be imposed to run concurrent with the Mayes county sentence, and there was a lot of discussion about it. I think the attorneys seemed to think it might be within the law of this, state, so' the court acquiesced in this agreement and provided that the sentence would run concurrent with the Maves county sentence.
“Now, if that hadn’t been done, I don’t know, but probably the defendant would have stood trial. I don’t know Avhat kind of a case they had against him except in a general way, but without that agreement and understanding, he might have stood trial, and might have been acquitted; and on the other hand, might have been convicted. The point is, it was a solemn agreement; that agreement having been made with the defendant, the state ought to keep faith with it, and it turned out, I Avon’t say just like I thought, but as I apprehended.”

This court has the same feeling as did the trial court, but under the law of this state as enacted by the Legislature the court did not have the right or authority to enter the order that the judgment and sentence should run concurrently as was entered in the Rogers county case No. 1694. This question has been fully discussed and the authorities cited in the late case of In re Flowers, 71 Okla. Cr. 330, 111 P. 2d 509, and following it, Ex parte Doll, 73 Okla. Cr. 34, 117 P. 2d 547. It is unnecessary to here quote from these decisions. They may be read by those who desire to do so.

The contention of petitioner that the Flowers Case, supra, and the cases of In re Johnson, 58 Okla. Cr. 209, 52 P. 2d 107, and Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645, support the contention of petitioner, that the judgment and sentence in the case in Rogers county was null and void and therefore he is entitled to be released by writ of habeas corpus, is untenable. These cases do not hold that a judgment and sentence is null and void simply because it may improperly provide that the term of imprisonment set forth therein is to run concurrently with the term of imprisonment set forth in a prior judgment and sentence. These cases only hold that that part of the second judgment and sentence which provides that the term of imprisonment set forth therein i,s to run concurrently with the term of imprisonment set forth in the first judgment and sentence is null and void, and that the defendant will be required to serve said latter term of imprisonment the same as if said second judgment and sentence had not contained said provision.

These cases well illustrate when the courts have held that a judgment and sentence such as above mentioned will be held null and void, and that one will be entitled to be released on habeas corpus only where a defendant is young and inexperienced, not represented by counsel, and is improperly advised of his constitutional rights by the trial court, but this is not the fact in the instant case. Here the petitioner1, Olen Gable, was 24 years of age at the time the judgment and sentence was rendered against him. There is nothing in the record to indicate that he was uneducated or inexperienced. He was represented by eminent counsel oí his own choosing. They advised with him and the trial court before entering his plea of guilty. They were informed by the court that he did not believe that he had the authority to enter the judgment and sentence under the law providing for a concurrent running of the sentence with a judgment and sentence entered in another county and at a different time, but that if counsel for defendant and the county attorney thought he had that right, he would so act.

It is strenuously contended by petitioner that the judgment and sentence in the Rogers county case being void, the same court which rendered the void judgment has the right within a term of three years or at any other time to set the same aside, and that the order of the district court of Rogers county entered on the 4th day of March, 1941, setting the same aside, was proper and should be sustained It has already been stated that the judgment and sentence entered in Rogers county was not a void judgment. Only that part of the judgment in which it is stated that it was to run concurrently with the Mayes county judgment was illegal. It Avill be noted from the record in this case that petitioner had begun the service of his sentence in the Rogers county case on. February 13, 1941, and the application for writ of habeas! corpus and motion to vacate and set aside the judgment were not filed until the 26th day of February, 1941, the same being after the date such service had begun.

This court in the case of Yoder v. State, 66 Okla. Cr. 178, 90 P. 2d 669, 673, states:

“One of the grounds of the motion for neAv trial was error in overruling the plea of former jeopardy. * * *
“The record affirmatively shows that the judgment or order of said superior court was not reconsidered, set aside or modified at any time during the term at which it was rendered * * *.
“The question presented has been fully considered and answered by this court in the case of Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 714, 45 L.R.A., N.S., 60. The language of that opinion is as follows:
“ ‘The general power of a court to reconsider’ its judgment and sentence and reverse, vacate, or modify it at any time during the term in 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 intoi operation, is undeniable. Bish. New Crim. Proc. § 1288, and cases cited. This power is inherent in all courts of record. However, it would seem there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it. * * *
“ ‘We think this provision of the Bill of Rights, and the principle therein declared, is broad enough to mean that no1 person can be twice lawfully punished for the same offense. The one follows from the other, and this constitutional provision is designed and intended to protect the accused from a double punishment as much as to protect him from two trials. For this reason we think that where a judgment and sentence has been executed and satisfied that ends the prosecution, exhausts the power of the court, and terminates its jurisdiction, and the court is without power or jurisdiction to render another judgment and sentence in the case.
“ ‘The leading case upon this question is Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. In that case the defendant was convicted of appropriating, mail bags, of the value of less than $25, the punishment for which offense, as provided by statute, was imprisonment for not more than one year or a fine of not lessi than $10 or more than $200. The sentence was one year’s imprisonment and $200 fine. The defendant was committed in pursuance of the sentence and paid the fine the day after his commitment. On the second day after his commitment he was brought by habeas corpus before the same judge who sentenced him, who vacated the former judgment and sentenced the defendant anew to one year’s imprisonment. The case came before the Supreme Court of the United States on habeas corpus, and the defendant was discharged, on the ground that, where a statute imposes as a punishment a fine or imprisonment, and the court has both fined and imprisoned the defendant, who thereupon pays the fine, the court has no power, even during the same term, to modify the judgment by imposing imprisonment instead of the former sentence. One of the alternative requirements of the statute having been satisfied, the power of the court as to- the offense was at an end.’ * '* '::‘
“It follows from the foregoing review of the record, the authorities quoted, and the laws, that after the defendant had complied with the agreement to- dismiss the prosecution by paying into court all costs in the prosecution of the case, and satisfied the order and judgment, the superior court was without jurisdiction to render a second judgment and sentence upon the same charge, or to reconsider its order1 or judgment after the costs had been paid, as in this respect the power of the court must be exercised when the original judgment is rendered.
“It goes without saying that the district court, exercising a co-ordinate jurisdiction in said county, was without jurisdiction to try an information for the same offense, subsequent to- the order and judgment of the superior court, having been satisfied.”

This case has recently been followed by this court in the case of Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419. See, also, Ex parte Pruitt, 41 Okla. Cr. 318, 273 P. 288.

Prom the above cases it will be seen that, even though the judgment and sentence was null and void, inasmuch as said judgment and sentence was not vacated during term-time and before a part of the penalty imposed had been served, the tidal court was without authority to set aside and vacate the same.

The cases referred to in petitioner’s brief refer to judgments in civil cases and have no application to a judgment and sentence in a criminal case. Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L.R.A., N.S., 60. Of course, we do not mean to hold that, if a judgment and sentence is actually null and void, a court of competent jurisdiction in a proper habeas corpus action cannot vacate the same and order the defendant released, but we do hold that a judgment and sentence in a criminal case cannot be vacated after term-time by the trial court, especially where a part of the penalty imposed therein has been served and satisfied.

It will be noted that if the order vacating the judgment of Rogers county was valid, it would be impossible under the double jeopardy provision of section 21, art. 2, of our State Constitution, Okla. St. Ann., and under the principles of law as set forth in the Yoder and Meadows Cases, supra, In again try petitioner for the offense with which he stood charged in Rogers county, this for the reason he had already served a part of his sentence in said cause.

We, as stated by the trial court, are of the opinion that if defendant entered his plea of guilty on the faith that he was to> receive but a two-year sentence in the cases from Mayes county and Rogers county, and that the judgments and sentences should ran concurrently, this promise should be carried out. As stated by us in the Doll Case, supra [73 Okla. Cr. 34, 117 P. 2d 548],

“The question of righting this wrong is a matter that may be presented 1» the Governor under the Constitution and statutes of this state.”

For the reasons above stated, the petition for writ of habeas corpus is hereby denied.

JONES and DOYLE, JJ., concur.


text:
    Ex parte CONWAY WRIGHT.
    No. A-10128.
    Nov. 12, 1941.
    (119 P. 2d 97.)
    R. O. Ingle, of Sallisaw, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Petitioner, Conway Wright, is confined in the state penitentiary at McAlester, where he is serving a term of two years. In his petition for habeas corpus it is contended that he is illegally restrained for the reason that the judgment and sentence rendered against him in Sequoyah county is illegal and void.

He was charged with the larceny of one bottle of bay rum, valued at about 25 cents. It was alleged that this property was taken from Bob Rigg’s store at Sallisaw, the same being a store building, etc. This charge was based upon, an act of the Legislature of 1937, Laws 1987, p. 14, section 1; Oklahoma Statutes Annotated, title 21, section 1723, which is as follows :

“Any person entering, and stealing any money or other thing of value from any house, railroad car, tent, booth or temporary building shall be guilty of larceny from the house. Larceny from the house is declared to be a felony.”

It is contended that the petitioner should have been charged with the commission of a misdemeanor by reason of the value of the property being less than $20, and should not have been charged with a felony. Petitioner relies upon the case of Potts v. State, 72 Okla. Cr. 91, 113 P. 2d 839, 842, decided by this court on the 21st day of May, 1941. In the Potts Case we stated:

“It is also urged that the amended information fails to' allege facts sufficient to constitute a crime under the statute upon which this prosecution is based, it being contended that the statute names five specific places which it is unlawful to enter and steal money or property, viz., Any house, railroad car, tent, booth or temporary building’, and that it was not the intent to include therein a building such as a store where people are invited to enter and trade at all times. While it is not necessary to pass upon this question at this time, in view of what we have heretofore stated, we will say that this raises a very serious question, and there is much doubt in our minds that the Legislature intended to include a store in this enumeration. If they did, it would have been very easy for them to have so stated. If they did so intend, it would mean a wiping out of existence the petit larceny statute of this state when property was stolen from a store building. The property alleged to have been stolen in the instant case was two dresses of the value of $13.80, but if an orange of the value of five cents or any other property of a value less than $20 had been stolen the party would be guilty of a felony and would be sent to the penitentiary. We think there is grave doubt as to whether it was the intention of the Legislature that the terms of this statute should include a building operated as a store where the public is invited to enter and trade.”

It will be noted from the above statement that it was .not essential to■ a proper decision of that case for us to pass upon the question of whether the word “house” as used in the statutes includes a building used as a “store” where people are invited to- enter and trade at all times. We there stated that, while it was not essential to’ pass upon that question, there was much doubt in our mind whether the Legislature intended to include a store open to the public within the enumeration. The exact question was not before u.s in the Potts Case and the same was not briefed or decided.

However, in both his brief and oral argument petitioner has admitted that the word “store” came within the term “house.” This therefore eliminates this question from our consideration. However, it is contended by petitioner that the statute does not apply “to larceny from a public store where the public may enter during business hours and trade, and the larceny was committed and the goods taken were of the value of only 25 cents,” the contention being that the “entering” is a part of the crime and there being no unlawful entry, no crime was committed where one lawfully enters the premises; that the only crime committed was the unlawful taking of the bottle of bay rum of the value of 25 cents, which under the law would be a misdemeanor. To support his contention petitioner relies particularly upon the case of State v. Chambers, 6 Ala. 855, and a statement in The Law of Crimes (2d Ed.) by Clark and Marshall, at page 500, which states:

“Some statutes, however, punish anyone who shall enter a house and commit the crime of larceny, thus making an entry an element of the offense; and it has been held that under such a statute the entry must be without the consent of the owner or occupant, unless there is an intent to steal at the time of the entry.”

The opinion in the Chambers Case, supra, was delivered in 1844. The statute under which the indictment was framed was as follows:

“Every person who shall enter any dwelling’ house, store house, &c. and therein commit the crime of larceny, and be thereof convicted, shall be punished by imprisonment in the penitentiary, not less than three, nor more than six years.”

It is true that this statute is very similar1 to our statute. In this case the larceny was committed by a servant or hireling who was living in the dwelling house of the prosecutor. He was there by his consent at the time the property was stolen, and the court in a very short opinion, without the citation of authority, held that to constitute the offense of larceny by entering and stealing Horn a dwelling, there must be an entry against the consent of the owner or1 the crime be meditated at the time of the permissive entry; that an entry is an essential ingredient of the offense.

In the instant case defendant was charged in the information as follows:

“That is to say, the said Conway Wright in the county and state aforesaid, and on or about the date aforesaid, then and there being, did then and there unlawfully, willfully, wrongfully and feloniously enter1 a certain store building, to wit, Bob Rigg’s store, Sallisaw, Oklahoma, and take, steal and carry away one bottle of bay rum valued at about 25 cents and of the personal property of the said Bob Rigg’s store, from said building, with the unlawful, fraudulent and felonious intent then and there on the part of him, the said Conway Wright to deprive the said Bob Rigg’s store of said property and to convert the same to the nse and benefit of him, the said Conway Wright, the same being’ contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

He entered his plea of guilty. There was no trial. This plea of guilty carries with it, not only the presumption of guilt as alleged in the information, but a conclusive judgment or confession that he was guilty. This carries with it the assumption that he entered the store “unlawfully, willfully, wrongfully and feloniously,” as alleged in the information. There is no proof in this case whatever of a lawful entry or an entry by invitation. This is a different state of facts than if the case was here on appeal with a record of the testimony before us that there had been no unlawful entry or no trespass. This cannot be settled by habeas corpus, but should be by appeal where the record is made. In the case of Baker v. State, 73 Okla. Cr. 13, 117 P. 2d 174, we affirmed the case which involved a construction of this identical statute where the evidence revealed the larceny from a “boxcar,” and the value of the property was only $2.50. However, in that case, which was before us on appeal, the record revealed that the defendant was a trespasser upon the property of the railroad company, and while we believe that the statute in question means there shall be an unlawful entry or entry by trespass upon the property, yet where a defendant enters his plea of guilty there is a confession on his part that he violated the terms prescribed by the information as above set forth. Unless this construction is placed upon the statute, it virtually wipes out the crime of petit larceny, where one steals property of any value from a store, or any place where they may lawfully be, as covered by the statute. We cannot believe that it was the intention of the Legislature to do this. On a trial, where one is charged with a violation of this statute we are of the opinion there would he a question of fact as to whether there was an unlawful entry, or an entry by trespass. This, of course, could be proved by either direct or circumstantial evidence.

Petitioner was given a two-year sentence in the penitentiary for the larceny of a 25 cent bottle of bay rum. This being an application for writ of habeas corpus and not being here on appeal, we cannot modify the sentence. We will state, however, that had we the power, this sentence would be modified. The record reveals that petitioner has served 12 months in the penitentiary

Under the Constitution and laws of this state the pardon and parole power is in the hands of the Governor of the state, and as stated in the case of Ex parte Olen Gable, 73 Okla. Cr. 155, 118 P. 2d 1035:

“The question of righting this wrong' is a matter that may be presented to the Governor under the Constitution and statutes of this state.”

For the reasons above stated, petition for writ of habeas corpus is hereby denied.

JONES and DOYLE, JJ., concur.