text:
    E. RAY ADAMS v. STATE.
    No. A-8487.
    April 1, 1933.
    Rehearing Denied May 19, 1933.
    (21 Pac. [2d] 1075.)

      Jas. A. Embry and John T. Blaney, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of abortion and sentenced to- serve a term of two^ years in the state penitentiary at McAlester, and appeals.

The defendant was charged and convicted of violating section 1834, Okla. Stats. 1931, which is as follo ws:

“Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.”

The testimony in the case shows Henry Doyle and his wife, Lillian Doyle, left their home in Shawnee and went to the home of the defendant near the city of Chandler, in Lincoln county, state of Oklahoma; that Lillian Doyle was pregnant; that the defendant performed an abortion and immediately thereafter Lillian Doyle died.

The testimony on behalf of the state further shows that it was not necessary to have the abortion performed to save the life of the deceased, Lillian Doyle. It is admitted by the defendant that he performed an abortion. The defendant’s testimony is that it was necessary to perform the abortion in order to save the life of Lillian Doyle. Other reputable physicians and surgeons answering hypothetical questions stated in their opinion the abortion was necessary. Tbe only conflict in the testimony is, was it necessary that the abortion be performed in order to save the life of Lillian Doyle. The pregnancy is admitted, and it is also admitted that the abortion was performed ; that an anesthetic was administered, and that Lillian Doyle died immediately after the operation.

The defendant has assigned several errors alleged to have been committed by the trial court. It is urged by defendant that the testimony of the state is insufficient to sustain the judgment, and that the court erred in overruling his motion for a new trial, citing Een et al. v. State, 9 Okla. Cr. 671, 132 Pac. 1131; Benson-v. State, 10 Okla. Cr. 16, 133 Pac. 271; and many other authorities to' sustain his contention.

This court has repeatedly held 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, this court will not disturb the verdict for insufficiency of the evidence. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352.

In Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 508, in the fourth paragraph of the syllabus this court said:

“Conviction can be reversed as not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so insufficient that jury must have acted from partiality, passion, or prejudice.”

The jury are the exclusive judges of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence. Campbell v. .State, 23 Okla. Cr. 251, 214 Pac. 738; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 250 Pac. 277.

The record fails to disclose that the jury was influenced by passion or prejudice. The court in its instructions correctly declared the law applicable to the facts in the case, and the jury after hearing’ the evidence, instructions of the court, and argument by counsel, by its verdict found against the defendant, and we are not inclined to disturb the finding of the jury, for the reason we hold there is sufficient testimony, though conflicting, to sustain the judgment.

The defendant complains of the refusal of the court to give a requested instruction. The general instructions given by the court covered the law fully, and it was not error for the court to refuse to give the instruction requested by the defendant.

The other errors assigned by the defendant do not possess sufficient merit to warrant a reversal. Finding no errors in the record .sufficient to warrant a reversal, the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J. EDWARDS, P. J.

license: Public Domain

text:
    Ex parte E. L. TOMLINSON.
    No. A-8494.
    May 19, 1933.
    (22 Pac. [2d] 398.)
    G. G. McBride and A. L. Jeffrey, for petitioner.
    W. H. Brown and A. P. Van Meter, for respondent.
   DAVENPORT, J.

This is an original proceeding in habeas corpus. The petitioner alleges in his petition:

That he is unlawfully restrained by the chief of police of Oklahoma City. That he is charged in the police court with the violation of Ordinance No. 4395, section 1, which is as follows:

“It shall be unlawful and an offense for any person, firm or corporation to drive or operate any ambulance on the streets within the city of Oklahoma City, on any emergency call without first having called the police station of the city of Oklahoma city and having received permission to make said emergency call. The radio dispatcher in the said police station shall authorize the first ambulance operator who calls reporting an emergency call to make said call and shall inform all subsequent persons who report said call that the emergency call is already being made by the one who has called first. Any person, firm or corporation other than the first one to report and receive permission to make said call, who makes an emergency call, shall be guilty of an offense.”

That he was convicted and fined the sum of $10 and costs. Your petitioner further alleges:

“That his restraint is illegal and unauthorized in that said Ordinance No. 4395 is unconstitutional, void and violative of petitioner’s rights under the Constitution of the United States and the Constitution and Statutes of the state of Oklahoma; in that said ordinance is arbitrary, discriminatory in restraint of trade, and unreasonable, both in its contents and method of administration. Said ordinance is unconstitutional and void, for the further reason that it is not within the police power of the city of Oklahoma City, Oklahoma, and deprives your petitioner of his liberty and use of his property without due process of law.
“Your petitioner further alleges and states that said ordinance is void and unreasonable for the reason that said ordinance requires your petitioner to first secure a permit to make an emergency call and in case a permit has been granted to another ambulance driver to make the same call, then your petitioner is refused said permit, all of which prevents this petitioner from making a call to any particular place within the city limits, as well as any particular place at any distance outside the city limits, for the reason that said ordinance prohibits him from using the city streets in reaching the city limits in making a call outside of the city limits.”

It is further alleged by the petitioner that said ordinance is a violation of section 10327, rule 7, Oklalioma Statutes 1931, which is as follows:

“At intersecting roads or streets, vehicles approaching from the right shall have the right of way over those approaching from the left. United States mail, fire apparatus, ambulances, police patrols, and vehicles of physicians, Avhen plainly designated, shall have right of way in any street or road or through any procession.”

Petitioner further alleges that he has at all times driven his ambulance plainly designated in large letters in four different places the word “ambulance”; that in making the call for which he was arrested and convicted it was necessary for your petitioner to use South Robinson street in the city of Oklahoma City, or some other adjoining street, in order to arrive at the city limits; the call he was answering was several miles outside the city.

This being a proceeding in habeas corpus, the question to be determined is the validity of the ordinance. If the ordinance is within the police power of the city of Oklahoma City, the police court had jurisdiction of the defendant and the subject-matter, and the writ should be denied, but, if the city of Oklahoma City in passing this ordinance went beyond the power granted to it by the statute laws of Oklahoma and its charter and exceeded its police power, then the writ should be granted.

In Ex parte Hall, 49 Okla. Cr. 366, 294 Pac. 823, this court, in considering an ordinance of the city prohibiting ambulances using sirens as a warning to pedestrians of the city that the ambulance was approaching, said:

“An ambulance, when plainly designated, has the right of way in any street or road through any procession.”

Hall had been convicted of having used a siren on his ambulance, in violation of the city ordinance which prohibited the/ use of the siren. The respondent, the city of Oklahoma City, urged the ordinance was for the purpose of preventing an obnoxious noise which disturbed the peace and repose of the citizens of the city.

This court sustained the ordinance and held that the ordinance applied to all ambulances alike, and that it did not take away any right or give any preference to one ambulance driver over another. The question in the Hall Case is not the same as the question in this case. It is not disputed a city under its police power may regulate the operation of traffic, and it is conceded that the statutes give the city the right to regulate the kind of horn, bell, or gong vehicles having a preference may use.

In this case the question involved is, Has the city the right to compel the owner of an ambulance, when he receives an emergency call, toi delay and take time to- report it to the police department, and get its permission to make the call? We do- not think so. The respondent urges the ordinance the defendant is charged with violating is a valid ordinance, and that it has the right to enforce the same, notwithstanding it requires the owner of the ambulance who receives the emergency call to report to the police department and secure permission to make the call before an ambulance owner can answer the call. The petitioner insists that, when the city attempts to enforce the ordinance that requires him on receiving an emergency call for an ambulance to' report to the police department and get permission to make the call, it interferes with, restrains and injures his business, and that part of the ordinance requiring him to secure permission to- make the call before he starts is unconstitutional and void.

It is shown by the petitioner that he complied with the regulations of the statutes, and ordinance of the city, by having' his ambulance plainly labeled in four different places with the word “Ambulance,” and that in making the call it was driven with care, and all the rules and regulations of the city as to operating an ambulance on the streets of said city, regarding signals, speed, and signs, were observed by the driver.

In Choctaw Pressed Brick Company v. Townsend, 108 Okla. 240, 236 Pac. 46, 50, the Supreme Court in part said:

“There is no such thing as the proper exercise of police power, where the exercise of such power results in pecuniary injury to private citizens without compensation for such injury.

“Section 7, art. 2, and sections 23 and 24, art. 2, of the Constitution, each forbids such a policy, and each renders such policy incompatible with the doctrine of proper exercise of police power.”

In United States v. Cohen (D. C.) 268 F. 420, the court said:

“A statute cannot declare a thing a nuisance which is obviously not a nuisance, the abatement of which as a nuisance would violate the constitutional guaranty of due process of law and just compensation for private property taken for public use.”

In vol. 6, R. C. L. § 226, p. 236, it is said:

“The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. ' In every case it must appear that the means adopted are reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power.”

In volume 6, R. C. L. § 227, it is further stated:

“One application of the familiar rule that the validity of an act is to be determined by its practical operation and effect and not by its title or declared purpose is that a constitutional right cannot be abridged by Legislature under the guise of police regulations; since the Legislature has no power, under the guise of police regulations, to invade arbitrarily the personal rights and personal liberty of the individual citizen, or arbitrarily to interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations, or to invade property rights.”

In City of Hagerstown v. Baltimore & Ohio R. Co., 107 Md. 178, 68 A. 490, it is held:

“An ordinance making unlawful the keeping of domestic animals in a town in a certain manner, without a permit from, the mayor and council, is invalid, as capable of being administered partially or unreasonably.”

In Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, the Supreme Court of the United States, in construing an ordinance in the fourth and sixth paragraphs of the syllabus, said:

“4. The order of the city and county of San Francisco', providing that it should be unlawful for any person to engage in the laundry business within the corporate limits ‘without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone,’ does not prescribe a rule and conditions for the regulation of the use of laundry property, to which all similarly situated may conform; but it confers a naked arbitrary power upon the board to' give or withhold consent, and makes all engaged in the business the tenants at will as to their means of living, under the board of supervisors.”
“6. Though a law be fair on its face and impartial in appearance, yet, if it is administered by public authority with an evil eye and an unequal hand, so- as practically to make illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”

This court has been extremely liberal in its interpretation of police power of municipalities, but the effect of the ordinance in question is to carry such regulations to an absurd, unjustifiable, and unreasonable extreme, and beyond the police power of the city. The administration of the ordinance in question is left entirely to the radio dispatcher, and, if that radio dispatcher should see fit to favor a certain funeral home, whether for profit, friendship, or because of malice toward others, it would be easy for him to do so. It matters not how urgent the emergency call, under the terms of this ordinance the owner of the ambulance cannot answer without being subjected to a fine, unless he first secures permission of the radio dispatcher to make the call.

If Oklahoma City, in the exercise of its police power, may regulate ambulances to such an extent that all calls must come through the police department, then it may, by ordinance, require all taxicabs, milk wagons, grocery delivery wagons, trucks, and all other means of transportation which uses its streets to fill orders only by calls placed through the police department. To advance such an argument immediately reveals its absurdity.

Under the police power of the city it has the right to regulate the use of its streets in a reasonable manner by prohibiting reckless driving, establishing stop lines, and prohibiting undue noises and other things of like character, but the city may not in the exercise of its police power place arbitrary, unreasonable, and discriminatory regulations upon any business.

For the reasons stated herein, we hold that the ordinance in question exceeds the police power of the city. The writ is granted, and petitioner ordered discharged.

CHAPPELL, J., concurs.

EDWARDS, P. J.

(dissenting). I am not able to agree with the majority opinion that the ordinance is void as an unreasonable exercise of police power.

Section 1 of Ordinance 4395 is: “It shall be unlawful and an offense for any person, firm or corporation to drive or operate any ambulance on the streets within the City of Oklahoma City, on any emergency call without first having called the Police Station of the City of Oklahoma City and having received permission to make said emergency call. The Radm Dispatcher in the said Police Station shall authorize the first ambulance operator who calls reporting an emergency call to make said call and shall inform all subsequent persons who report said call that the emergency call is already being made by the one who has called first. Any person, firm or corporation other than the first one to1 report and receive permission to make said emergency call, whn makes an emergency call, shall be guilty of an offense.”

The contention that the ordinance is void is on the theory that it deprives petitioner of private property without due process; deprives him of a right to engage in the business of operating an ambulance service; discriminates against the operation of ambulances; is too susceptible of abuse; and denies the use of state highways into and through the city. The objections to the ordinance more or less overlap and may be summarized in the general objection that it is not a valid exercise of the police power.

This being a habeas corpus proceeding, the only question before this court is the validity of the ordinance. Jurisdiction is not questioned except on the theory that the ordinance is invalid. Ex parte Ambler, 11 Okla Cr. 449, 148 Pac. 1061.

The record contains no evidence that the ordinance is unreasonable, and we perceive nothing in the ordinance itself which renders it prima facie unreasonable. It is a general rule that a police regulation of a municipality, in the absence of positive evidence to the contrary, is presumed to- be reasonable. McGuire v. Wilkerson, 22 Okla. Cr. 36, 209 Pac. 445, 448; Grider v. Ardmore, 46 Okla. Cr. 33, 287 Pac. 776; Fifth Ave. Coach Co., v. New York, 194 N. Y. 19, 86 N. E. 824, 21 L. R. A. (N. S.) 744, 16 Ann. Cas. 695.

In the recent case of Ex parte Hall, 49 Okla. Cr. 366, 294 Pac. 823, which challenged an ordinance regulating ambulances, this court held:

“Where a penal ordinance is challenged as being void as unreasonable and beyond a proper exercise of the police power, the courts will indulge every presumption in favor of the validity of the ordinance, and will not declare it void unless it clearly appears that it goes beyond the legislative power.”

Under his contention that he is deprived of his property without due process of law or just compensation, petitioner admits that ordinances enacted in the proper exercise of police powers are valid, though they may impair the full use of property, and that the use and occupation of property may be regulated, but insists that the regulation provided by the ordinance is unreasonable and oppressive, citing City of Muskogee v. Hancock, 58 Okla. 1, 158 Pac. 622, L. R. A. 1916F, 897; Choctaw Pressed Brick Co. v. Townsend, 108 Okla. 240, 236 Pac. 46; Pennsylvania Coal Co. v. Mahon et al., 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 322, 28 A. L. R. 1321.

Petitioner presents certain supposed conditions under which the ordinance might be abused or inequitably administered, citing City of Hagerstown v. Baltimore & O. R. Co., 107 Md. 178, 68 A. 490,126 Am. St. Rep. 382; Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239.

Petitioner also argues that the ordinance restricts or regulates a right to use the highways beyond the city limits, and is for that reason beyond the power of the municipality, citing; City of Arlington v. Lillard et al., 116 Tex/446, 294 S. W. 829.

This court takes judicial notice of matters of common knowledge. That is, that Oklahoma City is a densely populated area, having more than 185,000 inhabitants, that its streets are congested with traffic, and that regulation of automotive vehicles is imperative. There is a line of authorities holding that certain classes of motor vehicles as ambulances, police cars, and fire engines are an excepted class entitled to certain special privileges, but which special privileges do not prevent a municipality from enacting traffic regulations pertaining to' them. 42 C. J. § 771F, p. 1029; Echols v. Vinson, 220 Ala. 229, 124 So. 510; Lilly v. State of West Virginia (C. C. A.) 29 F. (2d) 61. See, also, rule 7, § 10327, Comp. Stat. 1931.

Section 7, art. 18, of the Constitution in part provides:

“No grant, extension, or renewal of any franchisé or other use of the streets, alleys, or other public grounds or ways of any municipality, shall divest the state, or any of its subordinate subdivisions, of their control and regulation of such use and enjoyment. * * *”

The same language is a part of the city charter, section 1, art. 8. This authority is sustained by the general law, textbooks, the decisions of tbe courts of other states, by this court, and the Supreme Court.

It is settled law that there is no vested property right in the individual to operate vehicles upon the streets of a city. A city, in the exercise of its police power to protect the safety of its citizens, may regulate, condition, or under reasonable circumstances deny the use of the streets for such purposes. In People’s Transit Company v. Henshaw (C. C. A.) 20 F. (2d) 87, a case involving an ordinance of Oklahoma City, it was held:

“There is no vested right in the use of streets, and the Legislature may deny, grant, or condition such use, or delegate such powers to the municipalities.”

In Desser v. Wichita, 96 Kan. 820, 153 Pac. 1194, 1196, L. R A. 1916D, 246, a case in which the city of Wichita had an ordinance prohibiting taxis from using certain streets unless they paid an additional license tax, the ordinance was contested on the ground of unfair discrimination in that trolley cars were not prohibited from using these streets. In holding the ordinance valid, the court said:

“Whatever natural right a citizen may have to traverse the streets of his city with a motor vehicle for the conveyance of his family or his friends, no inherent right exists to devote his vehicle to the public use of carrying passengers for hire and appropriate to himself the use of all the streets for purposes of profit. Beyond question, the city could vacate one or more of the streets over which he might desire to operate. It cannot only require him to pay a license tax, but it may regulate the manner of his carrying on his enterprise. Why may it not classify motor vehicles by themselves and refuse to permit them to crowd congested portions of the business streets where patrons of another class of vehicles — street cars1 — must alight and take passage? Suppose, indeed, a company or corporation owning motor vehicles had the facilities and the desire to occupy all the streets to the utter destruction of the street car business. Would the city have nothing to- say? Is the municipality a mere automaton, helpless in the presence of crowding and conflicting enterprises and scrambles for business which involve the comfort, the convenience, and the safety of the traveling public? Not so!’

In the City of Muskogee v. Morton, 128 Okla. 17, 261 Pac. 183, 187, upon an analogous question, the court quoting from an Iowa case, said:

“The constitutional guaranties invoked by counsel lie at the very foundation of all those rights of person and property which are the heritage of a free people associated in a republican form of government — rights which the courts have no disposition to ignore or fritter away. Nor can the court properly ignore that other settled rule that neither the Constitution nor its amendments were designed to limit the police powers of the state. As was said by Field, J., in Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 28 L. Ed. 923, supra, speaking of the Fourteenth Amendment to- the Constitution of the United States: Neither the amendment — broad and comprehensive as it is- — nor any other amendment, was designed to interfere with the power of the state, sometimes termed the police power, to prescribe regulations to' promote the health, peace, morals, education, and good order of the people and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity! This is not to- say that under the guise of police power the state may do or authorize that which the Constitution expressly or impliedly forbids, but with that reservation the authority of the state is supreme. Among those prohibitions is the one which makes private property immune against seizure or condemnation to' public use without compensation. It may be taken for that purpose by exercise of the power of eminent domain only upon making due compensation, but the power of eminent domain is quite distinct from the police power, and for the incidental loss or injury which the individual member of the public may sustain by reason of valid police regulations no compensation is recoverable. There is in such cases ‘no divesting of property rights by the operation of the statute, and the regulations to which the exercise of such rights is thereby subjected is not prevented by any limitation upon the authority of the Legislature prescribed by the federal or state Constitution. The interests of the individual are subordinate to the public good, and the constitutional guaranties of the security of private property were not designed and do not operate to prohibit the reasonable restriction of its use by legislation enacted within the sphere of the police power for the promotion of the general welfare.’ Overton v. Harrington, 126 Md. 32, 94 A. 325; Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205.”

See, also, Gant et al. v. Oklahoma City, 53 S. Ct. 530, 77 L. Ed. — .

The court in McGuire v. Wilkerson, supra, held:

“ ‘The use of the streets as a place of business or as a main instrumentality of business is accorded as a mere privilege and not as a matter of natural right.’ * * *
“In the case at bar, the petition discloses no property rights which the petitioner would be unlawfully deprived of by the continued enforcement of the ordinance. Petitioner and others operating automobiles for hire in the city of PaAvhuska. have no property rights in the streets of that city that would be superior to the regulation adopted by the board of commissioners under its police power as delegated by the laws of this state. The city of Pawhuska, having the authority to pass reasonable regulations governing automobiles operated on its streets for hire, this court would not- be authorized to declare the provisions of the ordinance here attacked unreasonable, unless it clearly appeared that they were so.”

In one case our Supreme Court held the police power of the city over the streets was superior even to a general statute.

In Westlake v. Cole, 115 Okla. 109, 241 Pac. 809, 810, it was held:

“The provisions of Ordinance 1204, of the city of Enid, requiring all vehicles approaching an intersection of any street, which has been designated as a boulevard, to come to a stop before entering the intersection, is not invalid because in conflict with section 10164, C. O. S. 1921, which provides:
“ ‘That at intersecting roads and streets, vehicles approaching from the right shall have right of way over those approaching from the left.’
“This provision of the state law does not, we think, deprive the authorities of a municipality in this state of power to> designate certain of its streets as boulevards, and require the drivers of vehicles along streets crossing such boulevards to come to a stop before entering the intersection.”

The exception stated in Westlake v. Cole, supra, is discussed and justified in Lamar & Smith v. Stroud (Tex. Civ. App.) 5 S. W. (2d) 824, 827, in which the following reasoning is used:

“It is true that no city has the power to adopt an ordinance which conflicts with a law of the state; but the question here is, Does that portion of the ordinance objected to conflict with the general law? The Penal Code was enacted to prevent persons from driving at dangerous rates of speed on the public highways, but that statute cannot be construed as providing all the needed and reasonable restrictions which the public safety may demand, nor can it be invoked as a license from the state to operate a motor car within the prescribed limitations, regardless of special conditions which jeopardize the safety of other people. The statute designates what shall be punished, without reference to the consequences of doing the forbidden act. What may be offensive under the terms of the statute may be culpable negligence under the provisions of the common law. It is a matter of common knowledge that within this state are some densely populated cities, with numerous street crossings over which motor travel is heavy. Common observation shows that under conditions frequently existing in those cities the public safety demands some additional regulations of the traffic not found in the state law. The local city’s requirement that motor cars stop at congested street intersections in obedience to certain established signals before proceeding across the line of traffic is a salutary regulation, and is not in conflict with the statutory provision limiting the speed at which vehicles may travel before or after passing those intersections. Neither is such a provision in conflict with an exemption from the limitations placed on speed by the penal statute. * * *”

Bearing in mind that the streets belong to the public, and that the ordinance is an exercise of the police power intended to protect the safety of persons using the streets, it is fair and reasonable. No one operating an ambulance is given an advantage over any other. The operator of an ambulance authorized to answer an emergency call is assured that his service is not dependent upon racing with and beating some other ambulance to the place where the service is required. It applies only to emergency calls, and does not deprive the citizen of his right to call any particular ambulance for any other purpose other than an emergency call. It seems unreasonable that the operator of an ambulance service would want to restore the dangerous system of ambulances racing through congested city streets to be the first at the scene of an accident.

In my opinion, Ordinance No. 4395,’ above quoted, is a proper exercise of the police power, and is a valid regulation of the use of the streets for the safety and well-being of persons using the same.


author: CHAPPELL, J.

text:
    BESSIE MORRIS v. STATE.
    No. A-8512.
    May 19, 1933.
    (22 Pac. [2d] 403.)
    P. G. Fullerton and John P. Fullerton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

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

Judgment was rendered on the 15th day of October, 1932. The appeal was filed in this court on the 19th day of January, 1933.

It appears from the record that at the time judgment was pronounced the court allowed the defendant 60 days to mate and serve case-made, three days to suggest amendments thereto, and the case to be signed and settled upon three days’ notice by either party, and that the defendant was allowed 60 days from October 15, 1932, in which to file her petition in error in the Criminal Court of Appeals.

It further appears that on the 12th day of December, 1932, on motion of defendant, the court gave her 40 days additional time to make and serve case-made, but made no order extending the time to file the appeal in this court. The court clerk certified the case-made on the 14th day of December, 1932, and the trial judge signed and settled the same on the 15th day of December, 1932. The case-made was filed in the office of the court clerk on the 14th day of January, 1933, but was not served upon the county attorney until the 18th day of January, 1933.

The Attorney General has filed a motion to dismiss the appeal for the reason that the case-made was not served on the county attorney within the time prescribed by the court and the appeal was not filed in this court until the 19th day of January, 1933, 36 days after the time fixed by the court for perfecting an appeal in this case.

This court has repeatedly held that an appeal in a misdemeanor case under the statute must be lodged in the Criminal 'Court of Appeals within 60 days after the rendition of the judgment appealed from, unless a proper order is made by the trial court extending the time within which the appeal may be lodged in this court, such extension not to exceed an additional 60 days. Carroll v. State, 24 Okla. Cr. 289, 217 Pac. 900; Smoot v. State, 24 Okla. Cr. 368, 217 Pac. 1059; Phillips v. .State, 50 Okla. Cr. 26, 295 Pac. 395; Mann v. State, 51 Okla. Cr. 6, 299 Pac. 237.

This court has also' held that an order extending the time within which to make and serve case-made does not automatically extend the time within which an appeal may be taken. Holly v. State, 16 Okla. Cr. 164, 181 Pac. 518; Wilson v. State, 24 Okla. Cr. 268, 217 Pac. 1057; Mann v. State, supra; Pippin v. State, 52 Okla. Cr. 333, 4 Pa,c. (2d) 1076; Shackelford v. State, 53 Okla. 324, 11 Pac. (2d) 768.

The case-made was not served on the county attorney until January 18, 1933, more than 30 days after it had been signed and settled by the trial judge. The signing and settling of the case-made by the trial judge before the same was served on the county attorney was not only contrary to the order of the court, but in violation of such order, and for that reason also the case-made is not properly before this court.

It further appears from the record that the case-made was filed in the office of the court clerk on the 14th day of January, 1933, and withdrawn for filing in this court four days before the same was served on the county attorney.

Upon consideration of the whole record, the motion of the Attorney General is sustained and the appeal dismissed.

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


text:
    CECIL C. DEAN v. STATE.
    No. A-8535.
    May 19, 1933.
    (22 Pac. [2d] 621.)

      Taylor & Taylor, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the offense of assault with a dangerous weapon, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of two* and one-half years.

Defendant’s counsel in his brief and oral argument insists that defendant was denied that fair and impartial trial guaranteed by the Constitution (art. 2, § 20) and laws of the state because of the remarks and misconduct of the trial judge.

An examination of the record discloses that the court refused to permit defendant’s counsel to conclude his opening statement to the jury, but, over his objection, forced him to take his seat and permitted the state to begin the introduction of its evidence.

One of the issues of the case was the question of whether defendant and his codefendant, C. J. Bloomingkemper, were acting together in the commission of the offense.

Later in the trial, G. C. Mathis, the party upon whom the state alleged the assault with a dangerous weapon was made, was testifying, when the following occurred:

“Q. What did he have to fight with? A. He did not have anything — nothing but his fists. Q. What did the other fellow do? A. A pair of pliers. Q. What did the defendant do with his fists? A. They were going to make me lift the car out of the yard, says ‘You are an employee of the company and get this out of here.’ By Mr. Taylor: We want the witness to testify who said that. By the Court: It is immaterial, they were both acting, together. By Mr. Taylor: Exception.”

Later in the trial, the state had called Jackie Dean, sister of defendant, to testify in rebuttal as to what was said by the county attorney to defendant at the time he attempted to induce him to plead guilty, when the following occurred:

“Q. You hadn’t talked to your brother much about it at that time? A. No, sir. Q. You have kinda acted more or less as mother to Cecil? By the Court: Objection sustained. We have tried Ernest- Jenkins and everybody else in this case but the defendant. By Mr. Taylor: Exception.”

The length of time and the scope of the opening statements to the jury are always largely in the discretion of the court, but the court should be very careful not to unduly limit the same, nor to embarrass counsel in the presence of the jury nor arbitrarily compel him to close his statement. The jury in the case at bar might have concluded that the trial court saw no merit in what defendant’s counsel expected to prove and so compelled him to close his statement to save time.

The statement of the court that defendant’s counsel had tried Ernest Jenkins and everybody else but the defendant was entirely uncalled for and also probably tended to prejudice the minds of the jury against defendant.

Juries are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case. Courts cannot be too circumspect in this regard. Pilgrim v. State, 3 Okla. Cr. 55, 104 Pac. 383; Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236; Nicholson v. State, 13 Okla. Cr. 123, 162 Pac. 447; Jones v. State, 20 Okla. Cr. 233, 202 Pac. 187; Coshy v. State, 30 Okla. Cr. 294, 236 Pac. 51.

One of the material issues in the case at bar was whether defendant and his codefendant were acting together. The defendant could not be guilty of assault with a dangerous weapon merely by the use of his fists, unless he was aiding and abetting his codefendant who was striking Mathis with the pliers. The evidence of the man assaulted was that defendant only struck him in the breast with his fist, but that his codefendant struck him over the head several times with a pair of pliers and that several wounds were made in his head, from which he became unconscious. Defendant denied that he struck Mathis at all, but claimed that Mathis and his codefendant were fighting and that he sought to separate them.

This court has said that trial judges cannot legally express their opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of any witness, or as to the truth of any matter in issue. The Avhole matter of the finding of the facts in the case must be left entirely to the jury, without suggestions or leadings of the court. Havill v. State, 7 Okla. Cr. 22, 121 Pac. 794; Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149; Smith v. [State, 12 Okla. Cr. 513, 159 Pac. 941; Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 238; Sweeney v. State, 51 Okla. Cr. 303, 1 Pac. (2d) 789; Kent v. State, 53 Okla. Cr. 276, 10 Pac. (2d) 733.

It clearly appears from this record that the trial court invaded the province of the jury and decided for them that defendant was acting with his codefendant, notwithstanding the fact that the evidence was squarely in conflict and the question was one upon which the jury only could pass.

For the reasons stated, the cause is reversed.

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


author: EDWARDS, P. J.

text:
    BILL RIDGWAY v. STATE.
    No. A-8524.
    May 26, 1933.
    (22 Pac. [2d] 932.)
    R. H. Brett, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of robbery in the first degree, and was sentenced to serve a term of ten years in the penitentiary.

Some argument is made that the evidence is insufficient to sustain the judgment. The evidence is conflicting, but the testimony for the state fully sustains the judgment. The weight of the evidence and the credibility of the witnesses was a question for the jury, and will not be disturbed.

The contention is made that the court erred in instruction 5, in which the jury is told the minimum punishment for first degree robbery is imprisonment in the penitentiary for any term not less than ten years. The information charges a crime conjointly committed by “Bill Ridgway and Allan Hunt.” Defendant Ridgway was tried separately. The statutes relating to the punishment for robbery in the first degree are somewhat involved. Before statehood, the territorial statute defined first degree robbery and fixed the punishment at imprisonment in the penitentiary not less than ten years. Section 2124, Stat. 1893 (see section 2550, Stat. 1931). In addition to the foregoing, there was also' a territorial statute providing that conjoint robbery was punishable by life imprisonment in the penitentiary. Section 2126, Stat. 1893 (section 2552, Stat. 1931). This conjoint robbery statute contained no alternative. When the evidence disclosed that a robbery had been committed by two or more persons acting together, the court was required to instruct the jury that, in case they found defendants guilty, the punishment must be life imprisonment. As a matter of history, we know that this severe statute became law in various sections of the West or Central West to meet a condition of brigandage which had arisen, under which, generally, some outlaw leader would gather around him a band of kindred spirits to prey on society, by the robbery of stage lines, trains, banks, and other establishments. Later it became apparent such extreme punishment was the cause of numerous miscarriages of justice, since in many cases juries were unwilling to return verdicts which would be followed by life imprisonment, the only punishment permitted by the statute. After statehood, the Legislature, in 1909, amended the statute fixing punishment for conjoint robbery by providing imprisonment not less than five nor more than 50 years. Section 2373, R. L. 1910 (section 2552, Stat. 1931). Surely it was never the legislative intent to punish a person who, while acting alone, committed a robbery, by a longer term of imprisonment than that imposed where two or more persons acting together committed a robbery. It is self-evident that a robbery jointly committed by two or more persons is a more serious crime, and subjects the person to more danger of injury than a robbery committed by a single individual. The Legislature, in 1925, provided a minimum punishment of five years’ imprisonment for robbery committed by the use of firearms or other dangerous weapons. Section 2543, Stat. 1931.

Again, it is self-evident that a robbery committed by the use of firearms or other dangerous weapons is generally a more dangerous class of first degree robbery than that committed in some other manner. It could never have been the legislative intent that a minimum punishment for robbery with firearms, or other dangerous weapons, should be imprisonment for five years while a first degree robbery committed in some other manner should carry a minimum punishment of ten years. To give section 2552 a literal construction without regard to any other statute, it would provide a less punishment for robbery in the first degree, committed by two- or more persons acting together, than for robbery in the first degree by a person acting alone, and would provide a less punishment for one or more persons committing a robbery with firearms, or other dangerous weapons, than for a single individual committing a robbery in any other manner. Repeals by implication are not favored, but some latitude by way of implication may be indulged where a literal construction leads to an absurd result. Construing these various sections of the statute together, we are convinced they fix, by direct wording or by necessary implication, a minimum punishment for first degree robbery committed in any manner at imprisonment in the penitentiary for a term not less than five years.

It follows that instruction 5 is erroneous, and the judgment should be and is hereby modified by reducing the term of imprisonment from ten years to five years, and, as amended, the judgment is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    STATE v. A. C. NOBLE.

      No. A-8521.
    May 26, 1933.
    (22 Pac. [2d] 931.)
    Ted R. Fisher, Co. Atty., for the State.
    B. M. Parmenter and Harlan E. Crimes, for defendant, in error.
   EDWARDS, P. J.

This is an appeal by the state from a reserved question of law. The defendant was charged in the county court of Blaine county with operating an overloaded truck on the public highway without a proper license tag, in that he—

“did * * * operate a motor vehicle * * * with a two (2) ton tag thereon, upon a public highway, to wit: on the State Highway No. 8, said motor vehicle being then and there loaded in excess of 4,000 pounds, to wit, being loaded with a load between seven and eight thousand pounds, contrary to the form of statutes, etc. * * *”

Defendant’s demurrer was sustained by the court, and the state appealed. The prosecution is based on section 10271, Okla. Stat. 1931, which section, in general, fixes the license fees to be paid on motor vehicles, providing:

“The following license fee shall be paid annually to the department of highways upon the registration of * * motor trucks: * * *
“On motor trucks * * * in excess of three thousand (3000) pounds and not in excess of four thousand (4000) pounds carrying capacity, sixty dollars ($60.00) per annum. * * *”

Section 10279 provides that any person failing to comply with the provisions of the Motor Vehicle Act shall be subject to a fine of not less than $25 nor more than $100. Section 10271, in fixing the license fees, provides that the fees of motortrucks shall be based on “carrying capacity.” It is the theory of the state that the term “carrying capacity” means the actual “carrying capacity” of the truck and not the “carrying capacity” fixed or recommended by the manufacturer, and that the carrying of a greater load than the “carrying capacity” on which the license fee is paid and the license issued is a violation of law and subjects the offender to the punishment provided by section 10279. ¡See the very recent case of J. B. Campbell, etc., v. Melvin Cornish et al., 163 Okla. 213, 22 Pac. (2d) 63.

It is not alleged in the information that the motor-truck did not have a “license tag.” But it is alleged in substance the motortruck bore “a two (2) ton tag” and was “loaded in excess of Four Thousand (4,000.00) pounds.” It is not alleged the truck did not have a license tag for the correct tax for the rated carrying capacity. At the time alleged there was no statute in this state which defined a crime in operating a truck on the highway with a load in excess of the “carrying capacity.” A statute to this effect was enacted by the 1933 session of the Legislature.

It is well settled that penal statutes cannot be enlarged by implication or extended by inference. Okla.. Stat. 1931, § 1762; Myers v. State, 19 Okla. Cr. 129, 197 Pac. 884,18 A. L. R. 1057; McDonald v. State, 54 Okla. Cr. 122, 15 Pac. (2d) 149. See, also, Sorrells v. U. S., 287 U. S. 435, 53 ,S. Ct. 210, 77 L. Ed.--; U. S. v. Reese, 92 U. S. 214-265, 23 L. Ed. 563-565.

For the reasons assigned, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    MONTE PATTON v. STATE.
    No. A-8480.
    March 25, 1933.
    Rehearing Denied May 26, 1933.
    (22 Pac. [2d] 116.)

      Fred Larue and Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of the larceny of an automobile, and sentenced to serve a term of six years in the state penitentiary at Mc-Alester, and appeals.

The testimony on the part of the state tends to show that L. L. Triplett, who lived about five miles northwest of Hydro, Okla., was the owner of an automobile, and while attending a picnic at Dripping Springs on the evening of the 7th of August, 1930, the car was stolen; on the 14th of August, 1930, the car was found in possession of the defendant, Monte Patton, in Weatherford, Okla.; the engine number had been changed between the time of its having been taken and the day it was found at Weather-ford. '

The evidence further tends to show that defendant was seen in possession of the car in Weatherford as early as August 11,1930. There is no controversy in the record but that the car found in the possession of the defendant was the car belonging to L. L. Triplett, and that the same was stolen while Triplett was attending the picnic at Dripping Springs, August 7, 1930.

The defense interposed is an alibi; the defendant and several relatives testifying that on the evening of August 7, 1930, from 7 to 7:30 in the evening until 10:30 or 11, the defendant was visiting at the home of his mother-in-law, in Weatherford. The defendant also' testified that the automobile was brought to his home by one S. B. Eu-banks, whom the defendant had known in Enid for more than a year, on the 13th day of August, 1930; at the time Eubanks came to the home of the defendant, the defendant was not at home but returned shortly after Eubanks’ arrival.. Defendant’s testimony further ¡tends to show that the car, or some part of it, was on fire and he called Joy Roush, a garage man, and had him come to the house and fix the automobile so it would run.

Roush also testified in behalf of the defendant, stating that on August 14, 1930, defendant drove the car to his garage for the purpose of having repairs made. At the time Triplett found his car in the Roush garage the defendant was at the garage; later defendant returned to his home to get some wire to be used in repairing the car; the officers found the defendant at his home and arrested him. The foregoing is in substance the testimony presented at the trial.

Several errors have been assigned by the defendant as grounds for reversal of his case. It is first urged by defendant that his case should be reversed for the reason of certain remarks made by the special prosecutor in his closing argument. The remarks of the special counsel complained of by the defendant are not incorporated in the record in full. The record shows that the special counsel, when defendant’s counsel objected, replied:

“Well, I am just answering you, Fred, about what you said, that he would be crazy if he had done that.”

As the entire argument is not incorporated in the record, it is apparent that the court overruled the defendant’s objection to the argument, for the reason that the special counsel was replying to the argument that had been made by the counsel for the defendant.

In Payne v. State, 21 Okla. Cr. 416, 209 Pac. 334, this court said:

“Where the record is incomplete touching upon alleged disparaging remarks made in the closing argument, this court will presume that the trial court ruled correctly.” Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Wilson v. State, 24 Okla. Cr. 332, 217 Pac. 885.

After a careful consideration of the record, and in view of the holdings of this court in many opinions, the court did not err in overruling the objections of the defendant to the closing remarks of the special prosecutor.

It is next urged that the trial court erred in not letting defendant prove that one Eubanks left the car at his home. Defendant was permitted to show by the garage man, Joy Roush, that when he went to defendant’s home to' make some repairs on the car another man was there. However, it appears from the record that Eubanks — if he really existed and was at the home of defendant when the garage man was there — had nothing to say about the repair; of the car or what he would have to pay for the repairs. The testimony offered by the defendant was properly excluded by the court.

The defendant alleges that the court deprived him of his right by refusing to let him show that he did not flee from the officers. An examination of the testimony offered by the defendant, and the rulings of the court thereon, discloses that the defendant was permitted to show by the garage man, or by himself, that he had gone to his home to get some wire of some kind to be used in repairing the car. It was but a short distance from the garage to defendant’s home, and if defendant went to get wire to be used on the car it is unexplained why he did not return and bring the wire. The record shows conclusively he did not return to> the garage where the car had been found but went to his home and was there arrested by the officers. The objection urged by the defendant does not possess sufficient merit to warrant a reversal.

The defendant next urges that the evidence is insufficient to support a conviction, for the reason that all the state proved was a mere naked possession by the defendant of the automobile about a week after it was stolen. The car was stolen on August 7,1930. The defendant was found in possession of this car a very short while after it was stolen. The explanation of defendant’s possession of the car was heard by the jury and the jury by its verdict said that it did not believe defendant’s statement, This court, in numerous cases, has held that where there is any competent evidence to warrant a jury in returning a verdict, though the evidence is conflicting, this court will not disturb the verdict.

This court has held in numerous cases that the possession of recently stolen property is not of itself sufficient to authorize the conviction of the accused of the crime of larceny; but, on the other hand, this court has held that the possession of recently stolen property creates an inference of fact, which together with other incriminating circumstances is sufficient to sustain a conviction of the crime of larceny. Bidwell v. State, 28 Okla. Cr. 1, 228 Pac. 614.

This court has often held that the burden is on the defendant to explain his possession of recently stolen property. In Foust v. State, 36 Okla. Cr. 390, 254 Pac. 982, in the second paragraph of the syllabus this court said:

“Where an accused has the possession of recently stolen property and attempts to explain his possession, the burden of proving the truthfulness of his explanation is on him, and, even though it may be reasonable, is a question of the fact for the jury.”

The explanation does not impress us as being reasonable ; but even if it were reasonable, whether it is true is a question of fact for the jury. Worley v. State, 31 Okla. Cr. 253, 238 Pac. 225.

It is clear from the record in this case that after the defendant came into possession of the automobile some one changed the number of the engine, and then a certificate of purchase and license tag were bought from the state agent for the car. In McHenry v. State, 52 Okla. Cr. 17, 2 Pac. (2d) 596, this court said:

“Not every explanation, reasonable or unreasonable, of the possession of stolen property, or of the possession of property similar to that stolen, will justify an acquittal. To SO' operate, the explanation should be both reasonable and worthy of belief.”

It is a common occurrence for those committing crime to have some name, who' left the property with him, or from whom he bought it, to try to shift the burden and to avoid conviction. This court has little faith in these imaginary persons who leave automobiles at people’s homes with instructions that they be repaired and he will return in a few days and pay the bill. It is unreasonable, and seldom if ever true.

This record has been carefully examined, and we hold the court properly instructed the jury as to the law applicable to' the facts in the case. No' prejudicial or fundamental errors appear in the record sufficient to warrant a reversal.

Other errors are discussed, but they do not possess merit.

The case is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


text:
    FLOYD TATE v. STATE.
    No. A-8530.
    June 2, 1933.
    (22 Pac. [2d] 1040.)
    R. Brett, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was jointly charged with Jesse Pruitt of the crime of robbery with firearms, and sentenced to confinement in the state penitentiary for a period of 20 years and appeals.

The testimony of the state is sufficient to sustain the conviction. The defendant relies upon an alibi. The jury, after hearing all the evidence, found against the defendant.

The defendant in his brief and argument admits that the evidence on the part of the state, if believed, is sufficient to sustain the conviction, but insists on his eleventh assignment of error, that the court erred in not sustaining his motion for a new trial.

The chief argument of the defendant is directed to the question of punishment, insisting that twenty years is excessive, and that the judgment should be modified. An examination of the record shows that Tate is a young man and has never before been charged with a crime. No one was injured in the robbery. The evidence shows that the defendant and another party entered the bank, and flourished their guns and said, “Stick ’em up,” and proceeded to' take the money, and left the bank without injury to any one.

After a careful examination of the record, we hold that the punishment of 20 years is excessive, and that the judgment should be modified to 10 years, and, as modified, the judgment is affirmed.

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


text:
    MARSHALL BLACKWELL v. STATE.
    No. A-8515.
    June 2, 1933.
    (22 Pac. [2d] 1041.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Att-y. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor, with intent to barter, sell', give away, and otherwise furnish to- others, in violation of the prohibition law, and was sentenced to pay a fine of |500 and be imprisoned in the county jail for six months. Prom the judgment the defendant appeals.

The defendant in his petition of error has assigned eight errors alleged to have been committed. After a careful examination of the record, the only error deemed necessary to' consider is the first error assigned by the defendant, which is: “Said court erred in overruling his motion for a new trial.” The motion for a new trial raises the question of the competency of the evidence introduced by the state against the defendant, and challenges the sufficiency of the affidavit upon which the search warrant under which they searched the private residence of the defendant was issued. If the affidavit for the search warrant is insufficient to predicate the search warrant upon, then all the testimony against the defendant was inadmissible, and the objections of the defendant to its admission should have been sustained.

Section 7013, C. O. S. 1921, now section 2639, Oklahoma Statutes 1931, is as follows:

“No search warrant shall be issued to' search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

When the evidence was offered by the state, the defendant objected tO' the same on the ground that it was procured by an unlawful search and seizure, the officers not having a valid search warrant, which objection was by the court overruled and the defendant’s exception saved.

It is admitted by the state that the building situated upon the land described in the affidavit was the residence of the defendant and one Bessie Carter. This being admitted by the state, it is necessary that the allegations in the affidavit should show that some part of the residence was used, at the time the affidavit was made, as a store, or a shop, or a hotel, or a boarding' house, or place for storage, or a place of public resort. An examination of the affidavit upon which the search warrant was based shows that the affiant stated that—

“Numerous and divers persons who1 are users of intoxicating liquors do frequent a certain public resort; that intoxicating liquors are being kept at said place for the purpose of being sold, bartered, given away, or otherwise disposed of, in violation of the prohibitory laws of the state of Oklahoma, the same being in, upon and about the following premises in Noble county, Oklahoma, to wit: Then described the property as the northeast quarter of section 28, township 24, range 2 E, Noble county, Oklahoma, and a 5-room, one story house situated thereon, and cave, barns, shed, and other structures within the curtilage and occupied by one Bessie Carter and Marshall. Blackwell.”

The attempt in the affidavit to charge a public resort falls far short of the statutory requirement. The affidavit states a certain resort in, upon, and about a certain described tract of land. There is no statement in the affidavit that charges that the residence of the defendant or Bessie Carter was a place of public resort at the time the affidavit was made. It mentions a certain public resort somewhere in, upon, or near the lands described in the affidavit, but fails to state that the home of the defendant was a place of public resort. The affidavit is insufficient to comply with section 2639, O. S. 1931.

In Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629, this court, after citing sections of the statutes of 1910, which is now section 2639, O. S. 1931, said that under these sections of law a search Avarrant cannot be laAvfully issued and no officer can lawfully enter and search the private residence of any one unless such residence is a place of public resort, or it, or some part of it, is used as a store, or as a shop, or as a hotel, or as a boarding house, or as a place for storage. The court, in Duncan v. State, supra, said:

“No officer has a laAvful right to search any private residence even though he possesses a search warrant issued by a magistrate, unless the conditions, or some one of them referred to in section 3616 [Revised Laws 1910], exist in the habitation at the time the search is to be made.”

No man, be he officer or otherwise, is permitted to ruthlessly invade the sacred rights of any home, however humble, unless he is clearly within the law. The home of the American citizen is his castle supreme, and he who dares invade the sanctity thereof does SO' at his peril. The provisions of the statute, supra, safeguard the citizen, the person, his home, and his property against unlawful and unreasonable searches and seizures. It is clearly shown that the affidavit upon which the search warrant issued does not meet the requirements of the statute. McClure v. State, 31 Okla. Cr. 60, 237 Pac. 145; Loveless v. State, 43 Okla. Cr. 146, 277 Pac. 672.

It has been repeatedly decided by this court that evidence obtained by a search of a defendant’s home, under a search warrant issued without authority of law and the proper affidavit, for the sole purpose of obtaining evidence against the defendant, in violation í f section 30 of the Bill of Rights, is inadmissible. The said section of the Bill of Rights is a pledge of good faith of the state that the people of the state, all alike, shall be secure in their persons, their houses, papers and effects, against unreasonable searches and seizures. This security has vanished, and the pledge is violated by the state that guarantees it when officers, acting under authority of the state, fail to secure a valid search warrant to search the private residence of a citizen.

The conviction of the defendant having no competent evidence to' support it, without the use of evidence which has been unlawfully obtained, must be reversed. The judgment of the lower court is reversed, and case remanded.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    ODIE VICE v. STATE.
    No. A-8527.
    June 2, 1933.
    (22 Pac. [2d] 1039.)
    D. E. Ashmore, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of 15 years.

The information charged that defendant, with Robert Vice and Lloyd Vice, robbed one M. C. Crawley on the 4th day of May, 1932, by putting him in fear of immediate injury to his life and person and threatening to shoot him, and by the use of such force and putting in fear took from his person and immediate presence the sum of $15 in money. Crawley was a storekeeper and testified that defendant and those associated with him came to his store about dark on the day in question and robbed him of his money and committed violence on his person in so doing. He positively identified the defendant, with Robert Vice and Lloyd Vice, as the parties who committed the crime, and is corroborated by several other witnesses.

The defense interposed was an alibi, and there is evidence to support the same.

Defendant raises two questions:

First. The sufficiency of the evidence to1 support the verdict and judgment.

It is apparent from an examination of the record that the evidence is directly in conflict, that of the state being sufficient to support the verdict and judgment.

This court has repeatedly held that where the evidence is in conflict it will not substitute its judgment for that of the jury as to the weight of such evidence, or as to the credibility of the witnesses. Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683; Birdwell v. State, 22 Okla. Cr. 184, 210 Pac. 558; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Cain v. State, 37 Okla. Cr. 282, 257 Pac. 1114.

In Horn v. State, supra, this court held that where the record discloses facts sufficient either to' warrant an acquittal or to support a conviction, only errors of law will be reviewed.

Second. Error of the court in overruling defendant’s motion for a new trial on the ground of newly discovered evidence.

The motion for a new trial on this ground is supported by the affidavit of Mary Sheward, who testified in substance that she lived at Henryetta, Okla.; that she had a son, Wesley Sheward, twenty-four years of age; that he had confessed to her he and one Ed Brewer had committed the robbery of which this defendant was convicted. The purpose of this alleged newly discovered evidence was to establish that some person other than defendant had made an extrajudicial confession that he had committed the crime.

Evidence of this character has been held to be inadmissible by this court in a number of cases: Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84; Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279; Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414; McNeal v. State, 15 Okla. Cr. 555, 179 Pac. 479; Davis v. State, 54 Okla. Cr. 285,19 Pac. (2d) 384.

Under these authorities the trial court did not abuse its discretion in overruling the motion for a new trial on the ground of newly discovered evidence.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    ROBERT VICE et al. v. STATE.
    No. A-8528.
    June 2, 1933.
    (22 Pac. [2d] 1040.)
    D. E. Ashmore, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Okfuskee county of the crime of robbery with firearms, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years for each of them.

This is a companion case to that of Odie Vice v. State, 54 Okla. Cr. 405, 22 Pac. (2d) 1039. The brief filed by counsel for defendant, Odie Vice, is asked to be considered by this court as covering the case at bar, wherein defendants were convicted of participating with Odie Vice in the robbery of one M. C. Crawley, on the 4th day of May, 1932.

The evidence in the case at bar and the questions raised are the same as in that of Odie Vice v. State.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    BILL RALSTON v. STATE.
    No. A-8510.
    June 9, 1933.
    (22 Pac. [2d] 1038.)
    Connelly Harrington, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of five years.

The evidence of the state was that Carl Warren was working on highway No. 17, in Adair county; that he quit his work at about 5:30 on the 1st day of March, 1932, and started to drive to his home in Siloam Springs; that at a narrow place in the road defendant had his icar parked across the road in such a way that it was impossible for Warren to pass'him,, thereby forcing Warren to stop his car; that two Indians came and put guns in Warren’s back, telling him to drive ahead; that defendant pulled his car out from across the road, and, after Warren passed him with his car, pulled in behind the parties and followed them up toward the top of the hill; that the Indians forced Warren to drive his car on a side road, defendant stopping on the highway; that the Indians forced Warren to go down the side road for a couple of hundred yards and there robbed him of $4,346.55; that the Indians forced Warren to undress and left him in the woods, naked; that they returned to- the highway and got in defendant’s car and they all drove rapidly away; that defendant was seen in and about the place of the robbery several times during the day and immediately thereafter, and was recognized by several people who had known him for some time.

Defendant did not take the witness stand and offered no evidence in his defense.

Defendant’s counsel earnestly urges that this evidence is insufficient to support the verdict of the jury.

The jury saw the witnesses and heard them testify and evidently believed the defendant was the originator and an active participant in the robbery and aided the two Indians in their escape immediately thereafter. The evidence abundantly supports the verdict of the jury.

Some contention is made that the state failed to prove the venue of the offense to be in Adair county.

A short time after the crime was committed, the prosecuting witness took Mr. Ferguson, the undersheriff of Adair county, to the point where the crime was committed and showed him the place. Ferguson, who' was familiar with the county boundaries, testified that the point was in Adair county. In the absence of any evidence to the contrary, this evidence, being undisputed, was sufficient to establish venue.

It is further contended that the trial court erred in not permitting attorneys for defendant to conduct a more extended cross-examination of the prosecuting witness in order to elicit the particular source of the money that he claimed to have had on his person at the time of the robbery and the particular bank in which he kept the money prior to the time of withdrawal as testified by him.

This court in numerous cases has held that the scope of both direct and cross-examination of witnesses rests largely in the discretion of the trial court, and that this court will not disturb a judgment because of the limitation of cross-examination, unless it clearly appears from the record that the trial court has abused its discretion in the matter.

It appears from the record that the trial court permitted a liberal examination of the prosecuting witness as to all material matters, and the cross-examination discloses that lie was asked pertinent questions as to the source of the money and as to the manner of its keeping. The mere fact that he withdrew the same from some bank because he was afraid to keep it longer in the bank, without compelling him to state from what bank he withdrew the funds, was not prejudicial error.

Defendant was accorded a fair trial and the evidence establishes his guilt beyond a reasonable doubt. The cause is therefore affirmed.

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


author: PER CURIAM.

text:
    E. F. STROSHINE v. STATE.
    No. A-8518.
    June 9, 1933.
    (22 Pac. [2d] 1037.)
    Brown Moore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, on plea of guilty, was convicted in the county court of Payne county of unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 30 'days in the county jail. The plea and sentence was October 8th. On October 12th defendant filed a motion to set aside the judgment and for leave to withdraw plea and enter a plea of not guilty, which was overruled. This ruling is the principal error complained of. The ground of the motion is “* * * that he entered a plea of guilty in said cause without the aid and advice of counsel and under a misapprehension of the penalty and what his rights were in said cause. * *

The judgment recited that at the time of arraignment “* * * the court advised defendant of the nature of the charge filed against him and further advised him of his right to counsel, trial and time to prepare for trial; thereupon the defendant pleads guilty to the crime charged. * * *” Defendant does not claim he is not guilty or that he was influenced to plead guilty or that the punishment is excessive. The record contains no evidence in support of the motion to set aside judgment and withdraw the plea. The action of the trial court in this regard is free from error.

Defendant further claims the judgment is invalid, for the reason that the amount of the costs taxed against defendant as a part of the judgment is not stated, except “* * * in the sum of-dollars and-cents. * * *” There is nothing in this contention. The costs are fixed by law, and are a mere matter of computation, and, if erroneous costs are taxed, the proper way to correct would b© by motion to retax in the trial court.

The case is affirmed.


text:
    F. J. MEEK v. STATE.
    No. A-8485.
    March 18, 1933.
    Rehearing Denied June 9, 1933.
    (22 Pac. [2d] 938.)

      Bobert Burns, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of the offense of acting as agent and representative of the Globe Casualty Company, without having registered with the Oklahoma Securities Commission as a dealer or salesman, and his punishment fixed by the jury at a fine of $1,000 and imprisonment in the state penitentiary for a term of two years. In the trial court defendant acted as his own counsel.

Defendant raises the same legal questions in this case as in 54 Okla. Cr. 415, 22 Pac. (2d) 933, decided at this sitting of the court, and, in addition thereto, attempts to raise the question of former jeopardy.

The record discloses that, after the jury was impaneled and the opening statement made by counsel for the state, defendant’s counsel said:

“Comes now the defendant and moves that the affidavit or information herein be quashed for the reason that it does' not state facts sufficient to constitute a crime against the state of Oklahoma, and for the further reason that it appears upon its face that it involves the same transaction for which the defendant has this day answered, and fori which reason the defendant asks permission of the court to file his plea of prior jeopardy.”

No other or further objection or showing was made as to former jeopardy.

In Petitti v. State, 3 Okla. Cr. 587, 107 Pac. 954', this court said:

“A plea of former acquittal will not be considered by this court where it was not interposed on arraignment and incorporated in the case-made.”

In Sims v. State, 9 Okla. Cr. 561, 132 Pac. 508, this court said:

“The plea of former jeopardy cannot be considered by the appellate court, unless it is presented in the lower court in the manner prescribed by statute.”

In Mowels v. State, 52 Okla. Cr. 193,11 Pac. (2d) 205, this court said:

“.Special pleas of former acquittal or conviction, as provided by statute (section 2619, Comp. St. 1921), are generally required in subsequent prosecutions for an offense which has before been cried.”

The record discloses that no plea of former jeopardy was presented to the trial court.

Our jurisdiction is purely appellate, except in certain specific instances. Questions which were not presented to the trial court cannot be considered by this court, unless they are jurisdictional. Since a plea of former jeopardy may be waived, and is not jurisdictional, the record presents no question for this court.

For the reasons stated, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent.