text:
    H. W. WILSON v. STATE.
    No. A-7268.
    Opinion Filed June 21, 1930.
    (289 Pac. 790.)

      H. W. Morgan, for plaintiff in error.
    The Attorney General and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county of the crime of murder, and his punishment fixed by the jury at life imprisonment in the state penitentiary.

The evidence of the state was that the negroes were having a dance at their lodge hall in the city of Anadarko; that more or less drinking was going on, and that some trouble had arisen between some women who were attending the dance; that Claude Wilson, a brother of the defendant, had some argument with Bill Gunn; that Bill Gunn sent word for defendant to come where he was, and that as defendant came he drew his pistol; that defendant turned around and fired the shot which killed Cloteal Pendarvis; that when defendant was told that he had shot the girl, he said, “I don’t give a damn if I did”; that defendant walked about the floor of the dance hall awhile and fired another shot up into the east window; that defendant stood about five or six feet from the girl when he shot her.

The defendant admitted in the . trial that he fired one shot from his pistol, but said he was shooting at Tourist Howard and that he did not know until some time afterward that the girl was shot. Defendant first contends that the evidence is insufficient to support the verdict of the jury. The evidence of the state tended to establish a deliberate and intentional killing on the part of the defendant. The evidence of the defendant tended to establish that the girl was killed by shots fired by one Jons and that the shot fired by the defendant did not strike the girl. There was a clear conflict in the evidence. The credibility of the witnesses and the weight to be given their testimony was for the jury. There being sufficient evidence in the record to support the verdict, the court did not err in overruling defendant’s motion for new trial on that ground.

The defendant next contends that the court erred in failing to instruct the jury upon manslaughter. No objections or exceptions were taken to the instructions given by the trial court. The defendant offered no instructions and requested no additional instructions. There being no evidence in the record tending to establish any lower grade of crime than that charged in the information, the court did not err in failing to give such instruction. The instructions given by the court on its own motion fairly state the law and are as favorable to the defendant as the evidence required.

Defendant next contends that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence. The motion of the defendant alleges diligence, but sets out no facts showing, diligence. This court has held that it is not error for the trial court to overrule an application for a new trial on the ground of newly discovered evidence where the motion fails to set out the acts constituting diligence. Donahue v. State, 38 Okla. Cr. 87, 259 Pac. 179; Ball v. State, 47 Okla. Cr. 145, 286 Pac. 808.

The granting of a new trial on the ground of newly discovered evidence rests in the sound discretion of the trial court. The ruling of the trial court will not be disturbed except for an abuse of this discretion. Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032; Newman v. State, 35 Okla. 296, 250 Pac. 554.

The foregoing errors being the only ones urged by the defendant in his brief, and they being insufficient to require a reversal, the cause is affirmed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    BOB TURNER v. STATE.
    No. A-7234.
    Opinion Filed June 21, 1930.
    (289 Pac. 1111.)

      John L. Ward and W. O. Moffett, for plaintiff in error.
    The Attorney General and Smith Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a period of 20 years.

The evidence of the state was that the defendant killed S. J. Gilmore at about 11 o’clock at night on April 2, 1928, by shooting him with a pistol. Defendant was running a barber shop at Skiatook, and the deceased, who was an Osage Indian, was engaged in the confectionery business there. That some time prior to the killing defendant was surety on deceased’s note at the bank and was compelled to pay it. That early in the afternoon of April 2, 1928, he went to deceased’s place of business and demanded of him that he pay the amount owed defendant. Deceased either refused or told defendant that he was unable to pay. Angered at this information, defendant later in the day purchased the pistol with which the killing was done at 11 that night. The evidence of the state was that defendant shot deceased while deceased was sitting on the bumper of an automobile parked at the curb in front of a restaurant where deceased and his clerk, Clyde Beatty, had gone immediately after closing up, to obtain a lunch; that defendant came into the restaurant after deceased and Beatty and took a seat in the back part of the room; that after deceased and Beatty had left the restaurant, defendant came out onto the sidewalk, pulled his pistol, and shot the deceased without any warning while deceased was sitting on the bumper of the car, the bullet entering the left arm and ranging down through the inner part of the right leg just about the knee and coming out on the outside of the right leg, the bullet severing the popliteal artery. Immediately after the shooting, deceased got up and ran across the street and some distance west on the north side of the street and then returned to the south side of the street where he fell; that about ten days later deceased died at a hospital in Tulsa.

Defendant claimed that he shot deceased in self-defense; that when he came out of the restaurant and saw deceased sitting on the car bumper, deceased had one hand on his knee; that he saw no gun; that deceased made a movement toward his bosom -with his other hand, and defendant immediately fired the fatal shot. It further appears from the record that the parties had been gambling at deceased’s place of business, and that defendant had threatened to cause the arrest of deceased and have his place of business raided as a gambling joint unless the ?25 defendant had been compelled to pay for deceased was returned to him, and that the killing was the result of this trouble over the |25.

Defendant assigns numerous grounds of error, but only two of them are of sufficient merit to warrant consideration. The first is that the court erred in permitting the state to introduce the transcript of the testimony of the witness Clyde Beatty, a witness for the state, given at the preliminary examination. Beatty’s residence was at Skiatook, the scene of this homicide. At the time of the homicide he was employed by the deceased. He was subpoenaed and testified at the preliminary examination at which time defendant’s counsel subjected him to a rigorous and extended cross-examination. Under the repeated holdings of this court this was sufficient to meet the constitutional requirement in criminal cases that the defendant shall be confronted with the witnesses against him. Exleton x. State, 30 Okla. Cr. 224, 235 Pac. 627; Weil v. State, 47 Okla. Cr. 88, 287 Pac. 752.

On June 12, 1928 the state had a subpoena issued for the witness returnable June 20th, the date when the trial was to commence. This- subpoena was returned by the sheriff, June 19, 1928, “Not found.” The sheriff went to Skiatook and made inquiry at the home of the witness and was told by the father of the witness that his son had left Skiatook and had gone to the harvest fields and that he did not know where he was and the sheriff was unable to find him or learn his whereabouts. Under the following authorities this showing was sufficient: Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Pierce v. State, 35 Okla. Cr. 67, 248 Pac. 654.

On this prima facie showing the trial judge indicated he would permit the state to read the transcript of the evidence given by the witness at the preliminary examination. Thereupon counsel for the defendant interposed the following objection: “For the reason that it does not give the defendant an opportunity to cross-examine the witness; the fact that he may have testified to one thing at the preliminary hearing, he may testify to something else in this trial and it does not give the defendant proper opportunity to cross-examine this witness and for the further reason the defendant is in a position and will be in a position to impeach Beatty on the testimony that he would give.”

This objection was upon two grounds: First, lack of opportunity to cross-examine, and, second, lack of opportunity to impeach the witness. In the case of Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669, this court said:

“When specific objections are urged to the admission of evidence in the trial court, the specific objections only will be considered upon appeal, and counsel will not then be heard to offer different objections to the testimony than those presented to and passed upon by the trial court.” Cotts v. State, 34 Okla. Cr. 59, 244 Pac. 817.

The state having laid a sufficient predicate for the introduction of the transcript of the evidence, and the objections of the defendant being insufficient the court did not err in overruling the objection to the introduction of such evidence.

The defendant next contends that the court erred in overruling his supplemental motion for a new trial on the ground of newly discovered evidence. This motion was filed in the trial court after the appeal was lodged in this court and was supported by the affidavits of Tom Gibson, Clyde Beatty, and W. O. Moffett. The names' of the witnesses Gibson and Beatty were indorsed on the information as witnesses for the state, which information was filed in tile district court on the 18tb day of May and a certified copy of the same furnished the defendant. Neither of these witnesses were found, although the state issued a subpoena for them. The residences of both of them were given as Skiatook, the home of this defendant. Defendant was released on bond June 5th, and the trial began June 20th, so that defendant had notice from the 18th day of April to the 20th of June that each of these witnesses was likely to be used against him. Defendant knew that both of these witnesses lived in Skiatook and was personally well acquainted with them. Upon his release on bond the 5th of June, defendant returned to his home in Skiatook, and thus had 15 days before the commencement of the trial to ascertain what these witnesses would testify to. This court has repeatedly held that to entitle the defendant to a new trial on account of newly discovered evidence he must show due diligence. Ball v. State, 47 Okla. Cr. 145, 286 Pac. 808; Donahue v. State, 38 Okla. Cr. 87, 259 Pac. 179; Devore v. State, 33 Okla. Cr. 403, 243 Pac. 999.

The defendant may not rely on the fact that the state has subpoenaed certain witnesses, but if he desires their testimony in his defense he must also have subpoenas issued for them as part of the due diligence required by law from him to obtain the evidence of such of the state’s witnesses as he may desire. The reason for furnishing the defendant with a certified copy of the information with the names of the state’s witnesses indorsed thereon is to enable the defendant to interview such witnesses, ascertain what they will testify to, and if favorable to him to see that they are present to give such evidence. He may not wait until the trial is over and the verdict has gone against him to interview these witnesses and then come in with affidavits from such witnesses in support of Ms motion for new trial and obtain the same by alleging that he has used due diligence.

This court has also held repeatedly that the granting or refusing of a new trial on account of newly discovered evidence is within the sound discretion of the trial court, and that the cause will not be reversed unless it appears from the record that there was a manifest abuse of such discretion. Carter v. State, 35 Okla. Cr. 421, 250 Pac. 807; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026; Ball v. State, supra.

The evidence supports the verdict of the jury. For the reasons stated, the cause is affirmed.

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


text:
    CHARLES STRICKLAND v. STATE.
    No. A-7389.
    Opinion Filed June 21, 1930.
    (289 Pac. 783.)
    C. H. Baskin, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Hughes county on a charge of selling whisky, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The judgment was entered on the 23d day of January, 1929, and the record for appeal was lodged in this court on the 22d day of May, 1929. An appeal from a conviction for a misdemeanor must be filed in this court in 60 days unless the court makes proper orders of extension. The record in this case shows that the court gave the plaintiff in error 30 days in which to prepare and serve the case-made. In the case at bar the appeal was not filed in this court until 119 days had passed. For the reasons stated the appeal is dismissed.

EDWABDS, P. J., and DAVENPOET, J., concur.


text:
    BOB HOUSEMAN v. STATE.
    No. A-7404.
    Opinion Filed June 21, 1930.
    (289 Pac. 1117.)
    Massingale, Duff & Bailey, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error pleaded guilty in the county court of Washita county of the charge of selling one pint of whisky, and he was sentenced by the court to pay a fine of $250 and to serve sixty days in the county jail. The judgment was entered on the 26th day of March, 1929. On the 27th day of March, 1929, the plaintiff in error filed an application asking leave of court to withdraw his plea of guilty and enter a plea of not guilty, which application was by the court overruled, and it is from this action of the court that he appeals. The appeal was lodged in this court on the 27th day of May, 1929. An appeal from a conviction for a misdemeanor must be filed in this court in sixty days unless the court makes proper orders of extension. The time is computed from the day judgment and sentence is pronounced. The record discloses that no extension of time was asked for or granted by the court, hence to perfect the appeal, the plaintiff in error must have his appeal lodged in this court within the sixty days allowed by law. In the case at bar the attempted appeal was filed two days after the time had expired. For the reasons stated, the appeal is dismissed.

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


text:
    BOB WILKINS v. STATE.
    No. A-7408.
    Opinion Filed June 21, 1930.
    (289 Pac. 1118.)
    J. H. Mathers and J. H. Hays, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the district court of Love county on a charge of larceny of a domestic animal, to wit, one yellow jersey cow, and his punishment fixed by the jury at imprisonment for two years in the state penitentiary at McAlester, Okla.

The appeal in this case was filed in this court on the 31st day of May, 1929, and is a companion case to (No. A-7407), 48 Okla. Cr. 83, 289 Pac. 1119. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument.

A careful examination of the record discloses sufficient evidence to support the verdict of the jury. There being no errors depriving the appellant of any substantial right, the cause is affirmed.

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


text:
    BOB WILKINS et al. v. STATE.
    No. A-7407.
    Opinion Filed June 21, 1930.
    (289 Pac. 1119.)
    J. H. Mathers and J. H. Hays, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error were convicted in the district court of Love county on a charge of larceny of domestic animals, to wit, one pale red heifer, coming three years old, and their punishments fixed at imprisonment for three years in the state penitentiary for each of them.

The appeal in this case was filed in this court on the 31st day of May, 1929. No briefs have been filed on behalf of plaintiffs in error, and no appearance was made for oral argument.

A careful examination of the record discloses sufficient evidence to support the verdict of the jury. There being no errors depriving the plaintiffs in error of any substantial rights, the cause is affirmed.

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


text:
    EDGAR LANE v. STATE.
    No. A-7162.
    Opinion Filed March 18, 1930.
    Rehearing Denied June 28, 1930.
    (289 Pac. 357.)
    Champion, Champion & Fischl and Sigler & Jackson, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen.,, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of the crime of assault with intent to commit rape, and his punishment fixed at imprisonment in the state penitentiary for a period of five years.

The information on which defendant Avas tried charged rape in the first degree, it being alleged that defendant on November 19, 1927, accomplished an act of sexual intercourse with one Marie Mayton, a female under the age of fourteen years who was not then and there the Avife of the defendant. The trial court submitted the case on the question of guilt of rape in the first degree, assault with intent to commit rape, and not guilty, and the jury found the defendant guilty of assault with intent to commit rape. One question is involved in this appeal, to wit, the sufficiency of the evidence to sustain the verdict and judgment.

Counsel for defendant assign other grounds for reversal, but cite authorities and argue only the question of the sufficiency of the evidence. The brief of counsel for defendant and the record disclose a clear conflict in the evidence. The evidence on the part of the state being sufficient to support a conviction for rape had the jury so found; while the evidence on the part of the defendant would entitle him to an acquittal if believed. In such case this court will ordinarily look only to errors of law upon which to ground a reversal of the judgment, and the facts will not ordinarily be reviewed. One apparent exception to the rule has been promulgated by this court in rape cases.

In Witt v. State, 29 Okla. Cr. 357, 233 Pac. 788, this court said:

“In a case of rape where all the material evidence on the part of the state is contradictory, inconsistent, and unreasonable and bears upon its face inherent evidence of improbability, it is insufficient to sustain a conviction, and in such case the verdict will be set aside.”

In the case of Roberts v. State, 31 Okla. Cr. 103, 237 Pac. 148, this court said:

“In a case of statutory rape where the evidence of the prosecutrix is not inherently improbable or contradictory, it is not essential to a conviction that there be corroboration.”

The state called Marie Mayton, the prosecuting- witness. She was only twelve years of age and an unsophisticated school girl. The state by permission of the trial judge was permitted finally to ask her leading, questions. Taken altogether she told a very reasonable and probable story and was unshaken in the material parts of her testimony under a rigid cross-examination. This witness was corroborated in the details of her story except as to the acts of the defendant which the state claimed constituted the rape.

This court has repeatedly held that where the evidence of the prosecutrix is not inherently improbable or contradictory, it is not essential to a conviction that there be corroboration. Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927; Harris v. State, 27 Okla. Cr. 405, 228 Pac. 525; Roberts v. State, 31 Okla. Cr. 103, 237 Pac. 148; Malone v. State, 40 Okla. Cr. 102, 267 Pac. 486: Fowler v. State, 42 Okla. Cr. 300, 275 Pac. 655.

The jury had before it the prosecutrix and the defendant together with the other witnesses in the case. Tt was their duty to observe the demeanor of the witnesses and to consider their interest or bias, if any was manifested, and to weigh the evidence in arriving at a verdict. The jury having found the issues in favor of the state, and the court having overruled the motion for a new trial, the verdict will not be disturbed where there is competent evidence in the record to support such verdict. The court properly instructed the jury as to the law of the case and told them that they might find the defendant guilty of rape or of assault with intent to commit rape. The jury no doubt took into consideration all the matters argued by the defendant in arriving at their verdict of guilty of assault with intent to commit rape.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


author: DAVENPORT, J.

text:
    MORRIS ROBINSON v. STATE.
    No. A-7169.
    Opinion Filed March 8, 1930.
    Rehearing Denied June 28, 1930.
    (289 Pac. 785.)
    Burns McCain, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The information in this case was filed in the district court of Tulsa county, August 24, 1927, charging the defendant with obtaining money under false pretense. Defendant was tried and convicted and sentenced to pay a fine of $1,200, from which judgment the defendant has appealed to this court.

The case-made, with petition in error, was filed in this court on September 10, 1928. Under the rules of this court where the appeal is not supported by brief, and no appearance is made for the plaintiff in error, it is assumed that the appeal has been abandoned or is without merit.

The record has been carefully examined, and we find the information sufficiently charges an offense of obtaining money under false pretense; that the evidence supported the charge. The instructions of the court were reasonably fair to the defendant. There are some minor errors appearing in the record committed by the trial court, but, in view of the fact that the appeal has not been followed up by the defendant they are not deemed sufficient to justify the court in reversing this case.

Finding no fundamental or prejudicial errors in the record sufficient to warrant a reversal, the judgment is affirmed.

On Rehearing.

The original opinion in this case was rendered March 8, 1930. At the time the original opinion was rendered, no brief had been filed in support of the errors assigned. Since the opinion was rendered, the plaintiff in error has briefed his assignments of error and urged that his demurrer to the information should have sustained, for the reason that the information did not comply substantially with the Code of Criminal Procedure; that more than one offense is charged in the information; that the facts set forth in the information do not constitute a public offense.

It is urged by the plaintiff in error that his demurrer should have been sustained for the reason that the information did not charge that the defendant knew the alleged false statements to be untrue, and in support of his contention the plaintiff in error cites a number of authorities, one of which is People v. Butler et al., 35 Cal. App. 357, 169 Pac. 918; in that case the plaintiff in error contended that the allegations in the information were not sufficient to charge an offense against him.

Upon an examination of the information in the case of People v. Butler et al., supra, we find the only allegation in that information is: “That in truth and in fact such claim he was then and there presenting to said board of supervisors was fraudulent and false.” The Supreme Court of California held the information bad, as it did not charge sufficient facts under the peculiar wording of its statute. The statute under which the plaintiff in error in this case was informed against is as follows:

Section 2145, C. O. S. 1921:

“Any person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the Value of the money or property so obtained, or by both such fine and imprisonment.”

It is not disputed that under the statute the knowledge of the falsity of the defendant’s statement is a material ingredient of the crime, and that the information must contain an allegation that the plaintiff in error knew the representations made by him were false or words of similar import that would imply the knowledge on his part. It is necessary that knowledge of the falsity of the pretense be averred, unless the pretenses stated are of such a nature as to exclude the possible hypothesis of the defendant not knowing of their falsity. People v. Behee, 90 Mich. 356, 51 N. W. 515; People v. Butler et al, 35 Cal. App. 357, 169 Pac. 918; People v. Millan, 106 Cal. 320, 39 Pac. 695; Doxey v. State, 47 Tex. Cr. R. 503, 84 S. W. 1061, 11 Ann. Cas. 830; People v. Balalas, 334 Ill. 444, 166 N. E. 47; State v. Mondry, 48 S. D. 189, 203 N. W. 468.

After a careful study of the information in this case, we find that it is stated in the first part of the information:

“Said defendant then and there representing and stating to the said W. Dickinson and H. H. Mahler, that he had arranged for drilling tools, and had them loaded on the truck ready to move on said lease, and that the said statements made by the defendant was false and untrue.”

Further on in the information it is stated:

“Said statement and representations so made by the defendant was for the false, fraudulent and felonious intent then and there on the part of the said defendant to beat, cheat and defraud.”

The question to be determined is, Did the information state sufficient facts to^ advise the defendant of the charge against him, and are the statements contained in the information as to the representation made by the defendant of sufficient import to show knowledge upon the part of the defendant that the statements when made by him were known by him to be false.

In Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552, and Basham v. State, 47 Okla. Cr. 204, 287 Pac. 761, this court held that a specific allegation of the knowledge of the falsity of the representations made is not necessary, that words of similar import may be employed.

After a careful consideration of all of the authorities presented, we hold that the language used in the information is of sufficient import to charge knowledge on the part of the defendant that, at the time he made the statements alleged to have been made by him to W. Dickinson and H. H. Mahler, he knew the same were false and untrue.

There are other errors discussed by the defendant, but, after a careful reading of the errors assigned and the authorities cited in support of the errors assigned, we do not find any error of sufficient merit to warrant a reversal of this case.

The petition for rehearing is denied.

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


author: EDWARDS, P. J.

text:
    W. V. PRYOR v. STATE.
    No. A-7732.
    Opinion Filed June 28, 1930.
    (290 Pac. 345.)

      D. A. McDougal, C. B. Rockwood, and Grady Lewis, for plaintiff in error.
    J. Berry King, A tty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was adjudged guilty of a direct contempt in the district court of Creek county and was sentenced to pay a fine of $75 and to serve 10 days in the county jail.

The record discloses a state of facts about as follows: In a suit in the district court of Creek county wherein D. B. Jones was plaintiff and J. W. Thompson was defendant, the said Thompson was adjudged in contempt for failure to comply with certain restraining orders. He demanded and was granted a jury trial. Honorable Thomas S. Harris, district judge, in whose division the matter was pending, stated he would not hear the contempt proceedings. Honorable John L. Norman, another judge of that district, came to hear the contempt matter, but owing to press of other business did not reacli it on the date set nor the two days next thereafter. On the second day after the date to which it was assigned, Judge Harris made an amended citation for contempt, which at the noon recess of that day was served upon defendant. The record then recites:

“ * * * The said W. Y. Pryor made the remark that Judge Harris should not he signing orders in that case, referring to the Thompson case, and that he was disqualified in said case and he knows it, and it looked like he was trying to help the other side out.
“Thereupon, the said Thomas S. Harris, Judge, immediately convened court and summoned the said W. V. Pryor and asked him if he had any reason to show why he should not be adjudged in contempt of this court, and stated to the said W. Y. Pryor what he was charged with. The said W. Y. Pryor demanded that he be informed of the nature of the charges against him and that the charges be reduced to writing, and that he have an opportunity to be heard. The court denied said request, stating that in his opinion the said W. Y. Pryor was in direct contempt of court and was not entitled to be heard, and added that the said W. V. Pryor was not entitled to a jury trial, to all of which W. Y. Pryor excepted. * * * ”

Then follows a recital of the judgment and an order to the sheriff to forthwith confine the defendant, and a further recital that at the time neither the clerk of the court nor any deputy nor court reporter was present. Upon this point the judge said:

“ * * * The Court. Let the record show that the statement was made in the chambers of the court adjoining the courtroom, in the presence of the judge, the presiding judge, of this division of this court. * * * Any member of this Bar, or officer of this court that comes in to the judge’s chambers, where the presiding judge is, the judge of this court, and makes such a statement as that, that the court is lined up with the other side, and in collusion with the other side — with that statement pending in this court — isn’t entitled, in my opinion, to appear in a court of justice, and should be disbarred from the practice of law. That is just the way I feel about it. I am going to ask the sheriff to carry out this judgment. Let the record show that the court finds that one W. V. Pryor to be in direct contempt of this court, and fixed bis punishment at ten days in the county jail, and a fine of $75.”

It is first argued that the district court was not in session at the time the statement was made upon which the claim of contempt is based. A “district court” is defined in Jones v. Busby, 37 Okla. Cr. 68, 256 Pac. 758, as:

“A district court is an arm of the state government, vested with judicial power, consisting of a judge and a clerk and other officers necessary for the transaction of business assembled to administer justice at a time and place where by law it was authorized to be held * * *”—citing Eichoff v. Caldwell, 51 Okla. 217, 151 Pac. 860, L. R. A. 1917E, 359.

There are, however, decisions holding in substance that a mere temporary recess or adjournment of the court does not dissolve the court and that a constructive contempt may be committed during such recess or intermission. 6 R C. L. 492, § 5, notes.

The record before us does not disclose that the particular division of the court over which Judge Harris presided had been in session and that the contemptuous statement was made during any temporary intermission or recess. Unless this were so, there is no contempt.

Section 1697, Comp St. 1921, is:

“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of wilful disobedience of any process or order lawfully issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of a court.”

It is well settled that where a contempt is indirect the party charged shall be notified in writing of the accusation and upon demand have a trial by jury. Section 1699, Comp. St. 1921; Emery v. State, 29 Okla. Cr. 29, 232 Pac. 128; Blanton et al. v. State, 31 Okla. Cr. 419, 239 Pac. 698 and authorities cited.

There is some confusion in the decisions as to whether or not the definition of “contempt,” section 1697, supra, is all-inclusive. It was held in substance in Ex parte Ballew, 20 Okla. Cr. 105, 201 Pac. 525, that the constitutional and statutory definitions of “contempt” exclude all acts not included in its terms. This holding was overruled in Hosmer v. State, 24 Okla. Cr. 312, 218 Pac. 164. This particular holding in the Hosmer Case was in turn overruled in Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758. These cases are directed to that part of section 1697, defining a direct contempt. A “direct contempt” can be committed only during the session of the court and in its immediate view and presence or so near to it as to interrupt its proceedings. Any contempt committed not during the session of the court or not in its immediate view and presence or so near as to interrupt its proceedings is “indirect contempt.” The- statutory definition of “indirect contempt” is considerably broadened in Emery v. State, 29 Okla. Cr. 29, 232 Pac. 128, where it is said:

“An ‘indirect contempt’ of court consists of an act having a tendency to obstruct and embarrass or prevent the due administration of justice, done at a distance, and not ‘during the session of the court and in its immediate view and presence.’ ”

Whether or not this language is within the statutory definition of “indirect contempt,” section 1697, there must be power in the court, either inherent power or power derived from the statute, broad enough to enable the court to enforce respect for its authority and to protect itself against unfounded and scurrilous accusations, threats, or other forms of intimidation made against it which impede, embarrass, or obstruct the due administration of justice. This power, however, must be exercised in the manner prescribed by law by written accusation, notice to accused, reasonable time for defense, and, upon demand, trial by jury. Section 1699, Comp. St. 1921; Emery v. State, supra; Cress v. State, 14 Okla. Cr. 521, 173 Pac. 854; Dawes v. State, 31 Okla. Cr. 397, 239 Pac. 689.

Since the statement upon which the charge of contempt is based, if it constitutes a contempt at all, is no more than indirect contempt, then the order is void for the reason there was no written accusation. Section 1699, Comp St. 1921. It is further in violation of article 2, § 25, of the state Constitution. This section of the Constitution in part provides:

“ * * * In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

This section has been several times construed, and it is held, in substance, that before a person can be punished for a contempt he must be given an opportunity to be heard and any judgment of conviction rendered without a hearing or without an opportunity to be heard is void because in violation of the constitutional provision, supra. Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719; Ex parte Hosmer, 24 Okla. Cr. 312, 218 Pac. 164: Ex parte Dawes, 31 Okla. Cr. 397; 239 Pac. 689; Ex parte Morse, 141 Okla. 75, 284 Pac. 18.

From the record it appears that in the first instance the court asked defendant if he had any reason why he should not be adjudged in contempt, and stated to defendant what he was charged with, and upon defendant then asking that the charges be reduced to writing, the court denied the request, stating that in his opinion defendant was in direct contempt and “was not entitled to be heard,” and thereupon adjudged defendant to be in contempt. This denial of the right to be heard clearly violates the provisions of article 2', § 25, of the Constitution. The judgment is invalid. The cause is reversed and remanded, with instructions to dismiss.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    WADE CASEY v. STATE.
    No. A-7325.
    Opinion Filed June 5, 1930.
    Rehearing Denied June 28, 1930.
    (289 Pac. 363.)

      C. H. Glazner and Clande A. Niles, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county of having possession of a still, and his punishment fixed at a fine of $50 and confinement in the county jail for period of 30 days.

The charging part of the information reads as follows :

a * -x- * pjiay Wiley Duke, Homer Duke and Wade Casey, did, in McIntosh county and state of Oklahoma on or about the ninth day of April, 1928, and anterior to the filing hereof, commit the crime of violating the prohibitory liquor laws of the state of Oklahoma in the manner and form as follows, to wit: 'That the said Wiley Duke, Homer Duke and Wade Casey on the day and year aforesaid in the county and state aforesaid, did willfully, wrongfully and unlawfully have in their possession and under their control one complete copper still and still worm, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The defendant contends first that this information is insufficient to charge an offense in that it does not charge the purpose for which the defendant had posses sion of such still. This prosecution was had under section 2 chapter 42, Session Laws, 1923-24, which reads as follows:

“It shall be unlawful for any person to keep, or have in his possession, or knowingly permit any other person to keep, or have in possession upon any premises under the ownership or control of such first party, any still worm or still, without that he first register the same with a proper United States officer and obtain from said officer a certificate of said registration and that he also first file said certificate of registration or a certified copy thereof with the county clerk of the county in which said worm or still is located. * * *”

Under this section it was not necessary for the state to allege the purpose for which the defendant possessed the still nor the use to which it might be put. The defendant cites the case of Batson v. State, 43 Okla. Cr. 298, 278 Pac. 359, as authority for holding the information in the case at bar insufficient. In the Batson Case the defendant was charged with the possession of a substitute for a still, which was capable of being used for the manufacture and production of distilled liquors and spirits. This court said in that case that, since the state alleged that the apparatus was a substitute for a still and was capable of being used for the manufacture of intoxicating liquors, they were bound to prove the allegations in the information, but the case at bar presents a different question. Where the defendant is charged with the possession of a still contrary to the statutes of the state, this allegation is sufficient to advise the defendant of the charge, and it was sufficient for the state to prove possession by the defendant without proving the purpose for which it was possessed, or the use to which it might be put, since section 2, c. 42, supra, makes the possession of a still the gist of the offense.

The defendant next contends that the evidence is insufficient to support the verdict. Three officers testified that about one-fourth mile from the residence of defendant they found one-third of a barrel of whisky-beer and a furnace, and about 100 yards south from where this was they found a worm, boiler, and connections, and also found a half-gallon of whisky; that the furnace and beer were found along a little branch in the timber and the still was found in some brush; that a trail led down from Casey's house to where the still had been in operation. The state charged Wiley Duke, Homer Duke, and Wade Casey with the possession of the still, and proved that the premises were in the possession of defendant, Wiley Duke, and Wade Casey. Defendant is a son-in-law of Wiley Duke. Duke denied that he knew anything about the still or liquor, but admitted that he saw a barrel on the Wade Casey land. Casey admitted that he had seen the barrel in his pasture, but denied that he possessed the still. The evidence of the state is positive as to finding the still on premises controlled by the defendants, Wiley Duke and Wade Casey. This was sufficient to make a prima facie case. The jury were not bound to believe the evidence of the defendant and evidently did not do so. The evidence being sufficient to sustain the verdict, the cause is affirmed.

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


text:
    MONROE BURLESON v. STATE.
    No. A-7481.
    Opinion Filed June 5, 1930.
    Rehearing Denied June 28, 1930.
    (289 Pac. 364.)

      Boy White, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $300 and confinement in the county jail for a period of 90 days.

Defendant first complains that the court erred in overruling his challenge to the entire panel of the jury. Defendant alleges as a ground for such challenge that the defendant had been tried on the 21st day of May, 1929, by a jury impaneled in the county court from the regular jury panel, and that three days later he was about to be put upon trial for violating the prohibitory liquor laws before the same panel of jurors, and that by reason of the fact that a part of the panel had found the defendant guilty of violating the prohibitory liquor laws, the other jurors would know about this fact and would be prejudiced against this defendant and he would be denied a fair and impartial trial. The trial court overruled this objection and proceeded to impanel a jury from the balance of the panel excluding the jurors who had tried the former case against the defendant.

The question defendant attempted to raise cannot be raised by a challenge to- the panel. Section 2659, 0. O. S. 1921, provides as follows:

“A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.” Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883.

The fact that certain jurors on the panel had previously tried the defendant for a similar offense did not disqualify the entire panel. The record does not disclose the voir dire examination of the jurors, and the record fails to show that the defendant exercised his peremptory challenge, and the trial court in open court made a finding that none of the jurors selected for the trial of the cause had heard any portion of the former trial. The proper procedure was not to challenge the entire panel, but to challenge each juror for cause on his voir dire examination. The defendant having failed to do this, this court cannot say that the court erred in permitting the .jurors to .serve on the trial of the defendant nor that the defendant was prejudiced thereby.

Defendant next contends that the evidence is insufficient to support the verdict of the jury. Defendant was charged with the sale of whisky to one Bill Pendley. Bill Pendley and Clarence Pendley both testified positively that they" purchased a quart of whisky from the defendant. This evidence was sufficient to support the verdict of the jury.

For the reasons stated the cause is affirmed.

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


author: WATTS, Special Judge.

text:
    DEWITT MARTIN v. STATE.
    No. A-6122.
    Opinion Filed June 28, 1930.
    (289 Pac. 787.)

      Jess L. Ballard and Richard L. Wheatley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   WATTS, Special Judge.

The defendant was charged jointly with Yet Thompson; he took severance and was tried in the district court of Mayes county for the crime of arson in the first degree. The information charges the offense was committed March 15, 1925; a conviction was had and the defendant was sentenced to serve a term of two years in the state penitentiary in harmony with the verdict of the jury, from which he appeals. Numerous errors are assigned going to the invalidity of the trial, verdict, and conviction. Section 2046, O. O. S. 1921, defines arson as “the wilful and malicious burning of a building, with intent to destroy it,” and is divided into two degrees, as follows :

Sec. 2056. “Arson in the first degree is:

“First. Maliciously burning in the nighttime an inhabited building in which there is at the time some human being; or,
“Second. Maliciously burning in the nighttime a structure adjoining to or within the curtilage of an inhabited building in which there is at the time some human being, and in such a way that such inhabited building is endangered; or,
“Third. Maliciously burning in the daytime any inhabited building or structure in which merchandising is carried on; or,
“Fourth. Maliciously burning in the nighttime any uninhabited building in which merchandising is carried on, or in which there is at any time any cattle, horses, hogs' or sheep.
“Arson committed in any other way is arson in the second degree.”

Punishment.

Sec. 2057. “Arson in the first degree is punishable by imprisonment in the penitentiary as follows:

“First. If committed as designated in the first paragraph of the foregoing section, for a term of not less than twenty years, nor more than thirty years.
“Second. If committed as designated in the second, third or fourth paragraphs of said section, not less than ten nor more than twenty years.”

Sec. 2058. “Arson in the second degree is punishable by imprisonment in the penitentiary as follows:

“First. If committed in the nighttime, not less than five nor more than ten years.
“Second. If committed in the daytime, not less than two nor more than seven years.”

The information charges that the defendants “did, then and there willfully, unlawfully, maliciously and feloniously, and in the nighttime set fire to and burn a certain building, to wit, a dwelling house in the northwest quarter of section 10, township 22 north, range 20 east, said building being then and there the property of Lula Mae Coats and being then and there occupied and inhabited as a residence by James Davis and Inas Smith and that they the said D. Martin and Yet Thompson did then and there willfully, unlawfully, maliciously and felo-niously set fire to and burn said building with the intent to destroy same by fire, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state,” which is arson in the second degree and the only charge which should have been submitted to the jury, but the court’s instructions and the trial of the case was on the theory that the charge was arson in the first degree; such was erroneous, and violated defendant’s substantial rights. Brook v. State, 6 Okla. Cr. 23, 115 Pac. 1026; Wilkerson v. State, 37 Okla. Cr. 43, 256 Pac. 63; Smith v. State, 40 Okla. Cr. 152, 267 Pac. 682. See, also, Russell v. State, 9 Okla. Cr. 692, 133 Pac. 475; Clemons v. State, 8 Okla. Cr. 452, 128 Pac. 739.

The attention of the trial court and counsel is called to the fact that chapter 60, Session Laws 1925, amending sections 2057 and 2058, C. O. S. 1921, was approved by the Governor March 31, 1925, and was not in effect at the time the offense is alleged to have been committed, therefore, section 2058, supra, and not the amendatory act mentioned is the applicable statute on punishment.

For reasons given, the judgment of the lower court is reversed, and a new trial is ordered.

EDWABDS, P. J., and CHAPPELL, J., concur.

DAYENPOBT, J., disqualified.


text:
    CHARLIE MOORE v. STATE.
    No. A-7416.
    Opinion Filed June 28, 1930.
    (289 Pac. 788.)
    J. W. Dixon, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Love county of the crime of manslaughter in the first degree, and his punishment fixed at five years’ imprisonment in the state penitentiary.

The homicide occurred on Sunday afternoon when defendant and deceased, Jack Loving, who was a second cousin of defendant, were present at a ball game. The evidence of the state is that defendant assaulted deceased with bis fists and with such force as to break the neck of deceased causing almost instant death; that defendant and deceased met near the ball grounds and immediately started to fight; that in a short time deceased asked defendant’s brother to make defendant stop striking him and when this was not done, turned and started to go rapidly away from defendant. Defendant followed behind deceased about fifty yards striking him with his fists and kicking him until deceased collapsed and fell; that defendant raised deceased to a sitting position and said: “Get up you son-of-a-bitch, you ain’t got anything the matter with you”; that deceased fell on his face again as soon as released by defendant; that defendant again lifted deceased to a sitting posture and that deceased immediately fell again when released by defendant and died immediately thereafter; that defendant lighted a cigarette and sat within five feet of deceased smoking for a short time and then went about 150 yards away and pitched horse-shoes until the sheriff came and arrested him; that deceased weighed about 145 pounds and the defendant about 185 pounds.

The defense interposed was self-defense, the defendant claiming the deceased struck the first blow and started the altercation. Defendant in his brief argues four propositions, but cites no authorities in support of any of them. Defendant first contends that the verdict is not supported by the evidence and the punishment is excessive. It is contended that there is no evidence to show that the defendant intended to kill the deceased; that the death resulted from a fist fight and that no dangerous weapon was used. It is not necessary, in a conviction of manslaughter in the first degree as defined by section 1740, O. O. S. 1921, that the defendant should have intended that death should result. The evidence in the case shows that the defendant intentionally attacked the deceased with his fists and that as deceased fled defendant continued to follow him and kicked, struck, and beat him, and finally struck the defendant with such force as to break his neck. The conduct of the defendant before and during the fight and his conduct afterward indicates that he was a big bully looking for trouble and taking a much smaller man than himself, beat him to death and then, with utter indifference, lighted a cigarette and pitched horse-shoes until the sheriff came to arrest him. The evidence overwhelmingly supports the verdict, and the punishment given the defendant is inadequate. Defendant and his counsel should congratulate themselves that the jury were merciful and fixed the punishment at five years rather than that which the jury would have been justified in giving him under the facts and circumstances in the case.

The defendant next contends that the trial jury was illegally drawn and illegally handled in such a way that the defendant was prevented from having- that fair trial guaranteed him under the Constitution and laws of this state. This question was raised by the defendant at the conclusion of the state’s evidence by an oral motion to quash the jury panel. Defendant in his brief points out' no error in the drawing or handling of the jury, but contents himself with the bare statement that the jury was illegally drawn and illegally handled. This question was not raised as required by sections 2658-2660, C. O. S. 1921. Section 3526, O. O. S. 1921, in part provides:

“ * * * A substantial compliance with the provisions of this chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing and summoning or impaneling the same resulted in depriving a party litigant of some substantial right: Provided, however, that such irregularity must be specifically presented to tbe court at or before the time the jury is sworn to try the cause.”

The defendant waived any question as to the improper or illegal manner of impaneling the jury in this case by failing to raise the question in the manner and within the time prescribed by the statute. It was not error therefore for the court to overrule defendant’s motion to quash the panel.

The defendant next contends that the following remarks of the trial court in the presence of the jury prevented the defendant from receiving a fair and impartial trial:

“By the Court: Where is this testimony competent, any contention this man did not have a right to go to tbe ball game? By Mr. Dixon (of counsel for defendant) : We object to the remarks of the court in the presence of the jury, this is impeaching testimony strictly. It is to impeach the witness Loving. The father said he talked with his son immediately prior to this time.”

A careful examination of the whole record reveals that defendant was attempting to get into the record a statement made by the father, over the dead body of the deceased, his son: “That if he had listened to his father and not gone to the ball game on Sunday this would not have happened.” In the first place this was not proper impeaching evidence, and in the second place the court merely inquired if there was any contention that deceased did not have a right to go to the ball game. Tbe ruling of the trial court upon the competency of this evidence was correct, and the remark made by the trial court could not have prejudiced the defendant in any of his rights.

Defendant next contends that the court erred in instructing the jury on murder. The -information charged murder, the trial court instructed on murder, manslaughter in the first degree, manslaughter in the second degree, excusable homicide and justifiable homicide. Under section 2722, C. O. S. 1921, it is provided that in charging the jury the court must state to them all matters of law which it thinks necessary for their information in giving their verdict. This court has repeatedly held that in a prosecution for murder the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view suggests, and if the evidence tends to prove different degrees, the law of each degree should be submitted to the jury. Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387; Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; James v. State, 14 Okla. Cr. 204, 169 Pac. 1127.

Where the defendant is charged with and tried for murder and is convicted of manslaughter, objections urged under instructions given upon the question of murder will not be sustained upon appeal, in the absence of a showing that the defendant was injured thereby. In view of the fact that the defendant was convicted of manslaughter and that the evidence sustains such conviction, it is apparent from the record that he could not have been prejudiced by the court’s instructions relative to murder.

None of the errors complained of being sufficiently prejudicial to require this court to reverse this case, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    FRED OWENS v. STATE.
    No. A-7444.
    Opinion Filed June 28, 1930.
    (289 Pac. 791.)
    Brown Moore and Guy L. Horton, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the crime of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for a term of one year and one day.

The evidence of the state was that the defendant on the 26th day of May, 1928, stole $25 in money from the Cushing Motor Company, a corporation of Cushing, Okla.; that the Cushing Motor Company had been missing money from its safe, and marked five $5 bills for identification and placed them in the safe; that, when the loss of this money was discovered, the defendant was called into the office of the company, and asked by its manager, Mr. Vineyard, if be bad any money; that defendant drew out of bis pocket a $5 bill and some change, and that this bill was one of the marked bills; that, on being pressed further, defendant drew other papers and stuff from bis pockets, and that a bank deposit book fell to the floor. An examination of this book showed that the defendant had deposited $10 in the bank shortly prior to this time, and a further investigation developed that the deposit consisted of two of the $5 marked bills. Defendant later admitted that he had paid a bill at a store, and included in that payment was one of the $5 bills.

Defendant contends, first, that the court erred in overruling his demurrer to the information, which alleged that the money stolen was the property of the Cushing Motor Company, and that the same was taken without the consent of the said motor company. Defendant contends that the information was insufficient, for the reason that, the Cushing Motor Company being alleged to be a corporation, it is incapable of giving consent, and that the information, in order to be good, should have alleged that the money stolen was the property of the Cushing Motor Company, a corporation, and that the same was taken without the consent of H. C. Vineyard, the agent of said corporation, having said money in his possession for said corporation. Counsel cite the case White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879, in support of this contention. The rule laid down in that case has no application to the law of this state. An allegation of the ownership of the property stolen is necessary in a charge of larceny and that the property stolen was taken without the consent of the owner*, either the true owner or of some person having a special ownership in the property. The only way a corporation could give consent would be through its officers and agents. An allegation that property was stolen without the consent of a certain corporation was equivalent to an allegation that the property was stolen without the consent of the officer or agent of such corporation having the care, management, and control of such property. It is not a fatal variance for the information to contain an allegation that the property was taken without the consent of the Cush-ing Motor Company, a corporation, and the proof to show that the taking was without the consent of the officer or agent of the said Cushing Motor Company. The money taken in the case at bar was the property of the Cushing Motor Company, and the undisputed proof is that said money was taken without the consent of the agent of said Company, having the care, management, and control of said money. Under the repeated holdings of this court, it is only necessary to charge the offense in ordinary and concise language in such a manner as would enable a person of common understanding to know the crime intended to be charged.

In the case of Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797, the information charged that the property stolen was the property of the D. Means Drilling Company without alleging the names of the persons constituting such company, and that said property was taken without the consent of the drilling company, and without alleging the names of the persons in charge of said company. This court held such charge to be sufficient, and sustained the conviction in the case.

The defendant next contends that the court erred in admitting in evidence the bank deposit book of defendant, which he claimed was obtained from him by force and by means of an unlawful search. The evidence of the state was that the defendant dropped the bank book on the floor, and that it was picked up by the manager, and that, going to the bank, they learned that two of the marked bills had been deposited by the defendant shortly after the money was missed. Under the evidence of the state, there was no search made of the defendant, and no force used to procure the possession of the bank book which furnished the clue leading, to the discovery of the stolen money deposited by the defendant. The record does not support the contention of the defendant that the evidence was obtained by an unlawful search of his person.

Next, the defendant contends that the court erred in overruling his motion to quash the information on the ground that the defendant was not given a preliminary examination. The record introduced by defendant’s counsel shows that defendant was notified of all his rights, and that he waived a preliminary examination after having been fully and fairly informed of all his constitutional rights, as shown by the following entry in the case-made:

“On the 26th day of May, 1928, a preliminary complaint having been filed before me, charging the defendant, Fred Owens, with the crime of grand larceny, and being satisfied therefrom that such said offense by said defendant had been committed, I issued a warrant for his arrest, and delivered the same to W. O. Gilchrist, constable, for service.
“That on the 26th day of May, 1928, by virtue of said warrant said defendant was duly and regularly brought before me and informed of the nature of the charge against him, his right to aid of counsel, change of venue and his right to waive examination. That after this information being imparted to the said Fred Owens he waived his preliminary trial in open court.”

None of the assignments of error constitute a sufficient reason for granting a new trial. The evidence of the defendant’s guilt is overwhelming, and the punishment imposed extremely light. For the reasons stated, the cause is affirmed.

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


text:
    H. E. SMITH v. STATE.
    No. A-7413.
    Opinion Filed June 28, 1930.
    (289 Pac. 792.)
    R. D. Miller, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was tried on a charge of transporting one-half pint of corn whisky from one place in the state of Oklahoma to another; was convicted by the jury, and his punishment left to the court, and was sentenced to pay a fine of $300 and be confined in the county jail for a period of four months. From the judgment the defendant has appealed by petition in error and case-made.

The testimony, in substance, on behalf of the state shows that E. T. Smith, sheriff, and P. W. Nance, deputy sheriff of Harmon county, were driving out from Hollis a short distance and met the defendant driving toward the city. The defendant was driving along at an ordinary rate or speed; that after the witnesses for the state passed defendant they looked back and saw the defendant had increased the speed if his car; neither of the officers had any warrant for the arrest of the defendant; one of the witnesses say what caused them to turn back was the action of the defendant when they passed him. The witnesses had started out of town on some errand and met the defendant driving at an ordinary rate of speed, going through a portion of the town and around different places, until he finally slowed up, and the state witnesses caught up with him; the sheriff says: “I walked over and opened the left door of his car and a pint of whisky fell out on the running board of his car,” The defendant objected to the introduction of any testimony of transporting' whisky, and saved his record at every stage of the proceeding’ on the ground that the search of his car was without authority of law, and the testimony secured by reason of that fact was unlawfully secured and inadmissible against him.

The defendant assigns as error the action of the sheriff in searching his car without having a warrant for his arrest or to search his car. The sheriff states, in substance, that, when the defendant stopped his car, he went up to the defendant’s car and opened the door, and a pint of whisky fell out of the car.

There is no testimony showing that the officer had seen any whisky in the defendant’s car or had any knowledge there was whisky in it. The search of the defendant’s car, by opening the door, as stated by the sheriff, was without authority of law, and his motion to suppress the evidence should have been sustained.

The judgment is reversed.

EDWARDS, P. J., concurs. CHAPPELL, J., dissents.


text:
    ANDREW DEAN v. STATE.
    No. A-7421.
    Opinion Filed June 28, 1930.
    (289 Pac. 793.)
    P. A. Chappelle, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, referred to herein as the defendant, was convicted of burglary, as charged in the information, and his punishment fixed at imprisonment in the state penitentiary for a period of 10 years. Prom the judgment, the defendant has appealed.

The testimony in this case shows that the defendant broke into the home of Dr. S. J. Bradfield, in the city of Tulsa, on the 30th day of October, 1928, and took therefrom a $10 gold piece and several $1 bills and a purse belonging to the wife of Dr. Bradfield. Mrs. Grace Brad-field, the wife of Dr. Bradfield testified she saw the defendant pass her window in the early morning, and later heard a noise at her back porch screen, and, when she got up from her bed and went into a room, she there saw the defendant; the defendant ran out of the house and down the street; she called the police and the defendant was arrested about two blocks from the house, and on him at the time was the $10 gold piece and other change. The defendant was positively identified by Mrs. Bradfield as the man who passed her window, and later, hearing the noise in the house, she entered the room and saw him at the dresser. The officer testified to arresting the defendant and finding the $10 gold piece and some other change on his person. No testimony was offered on behalf of the defendant.

The defendant has assigned several errors alleged to have been committed by the trial court, but the only error argued is the first assignment, that the court erred in overruling the demurrer to the information. From a reading of the information we find that the information charges,

“That said defendant, Andrew Dean, on the 30th day of October, A. D. 1928, in Tulsa county, Okla., did unlawfully, willfully, burglariously and feloniously, and in the nighttime, break and enter into> a certain dwelling house located at 1344 North Elwood street, in the city of Tulsa, Okla., and being then and there occupied by and in the possession of S. J. Bradfield, and in which there was a human being, to wit: Mrs. S. J. Bradfield, by breaking open the outer doors and windows of said dwelling house, with the felonious and burglarious intent then and there, upon the part of said defendant to steal therein, by then and there taking, stealing and carrying away, without the consent of the owner thereof, certain personal property of value in said dwelling house kept and contained, the property of the said S. J. Bradfield, with the unlawful and felonious intent then and there, upon the part of said defendant, to deprive the owner thereof permanently and to convert the same to his own use and benefit, contrary to the form of the statutes in such cases made and provided.”

Section 2059, C. O. S. 1921, is as follows:

“Any person who breaks into and enters in the nighttime the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:
“First. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter; or,
“Second. By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or,
“Third. By unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a latch or opening a window, is guilty of burglary in thé first degree.”

After a careful examination of the information we hold that the information states facts sufficient to charge burglary in the first degree, and that the demurrer of the defendant was properly overruled. The evidence is sufficient to sustain the judgment. Finding no errors in the record, the judgment is affirmed.

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


text:
    J. E. COMPTON v. STATE.
    No. A-6850.
    Opinion Filed June 28, 1930.
    (289 Pac. 794.)
    Bond & Bond, for plaintiff in error.
    Edwin Dabney, Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of larceny of chickens, and sentenced to serve a term in the penitentiary of one year and one day. Prom the judgment and sentence the defendant has appealed to this court. Considerable testimony was taken and the record is quite voluminous.

The first, second, and third errors assigned by the defendant are as follows:

“1. The court erred in overruling the motion of plaintiff in error for a new trial.
“2. The court erred in overruling the motion of plaintiff in error for a continuance upon the ground of absent witness.
“3. Because the court erred in denying motion of plaintiff in error to defer further proceedings until the attachment issued by the court for Jim Manning has been served and returned.”

The record in the case shows that the information was filed on March 15, 1927; that the case was assigned for trial June 20, 1927; that on June 13, 1927, the defendant caused subpoenas to be issued for Dallas Taylor and Jim Manning; that Jim Manning resided in Grady county, and the defendant secured an order from the district judge in Stephens county, indorsed upon the subpoena, ordering the witness Jim Manning to attend as a witness as commanded in the subpoena; that the subpoena was received by the sheriff of Grady county on the 14th day of June, 1927, and the return of the sheriff shows it was served on Jim Manning June 15, 1927; the return of the sheriff was filed in the district court of Stephens county June 20, 1927.

On June 20, 1927, the day the case was assigned for trial, the witness Jim Manning failed to appear as required by the subpoena. The defendant filed his duly verified motion for a continuance, on the ground of absent witnesses; among the .witnesses was Jim Manning. That part of the motion which the defendant filed and which relates to the testimony of Jim Manning, the absent witness who had been subpoenaed by the sheriff, omitting the caption and jurat, is as follows:

“That Jim Manning, if present will testify that on the day the defendant was charged with stealing domestic fowls on that day he was present and saw the defendant turn the check over to a man and heard this man ask the defendant to cash the check for him. That he heard a conversation between said man and this defendant in which this man said that the chickens which he had gotten him to sell for him belonged to his mother in lav. That he heard this man say that he had been drunk at Lindsay, Oklahoma, a short time before and they had a fine against him which he had not paid, and that if he went to Lindsay with the chickens to sell them that he would be arrested and made to pay the fine.
“Affiant states that he cannot prove said facts by any other witness and that he believes said facts to be true. That the said Jim Manning has been duly subpoenaed by subpoena issued on order of this court by endorsement and that he is not absent through any cause, fault or procurement of this defendant. That the said Jim Manning resides in Grady county, Oklahoma, and the defendant can procure his testimony if granted a continuance for a reasonable time. Affiant states that both of the said witnesses mentioned in this affidavit, Dallas Taylor and Jim Manning are absent and neither one is in attendance upon the court at this time, and he cannot proceed to trial without their testimony. And that he can have them present on the trial of the case if granted a continuance, and asks that this cause be continued for a reasonable time.”

As shown by the record, the state offered the subpoena in evidence to overcome the allegations in the motion of the defendant for a continuance.

W. J. Simpson was called by the state as a witness, on a hearing of the motion for continuance, and testified he was sheriff of Stephens county; “I know where the town of Beasley is; it is in Stephens county.” On cross-examination, witness stated:

“Quite a settlement out near Beasley; number of people living around there; some drilling not far from Beasley, about a mile southeast and a mile or something north toward Grady county; the people on both sides of the county line get their mail at Beasley.”

The court stated:

“Application for continuance will be denied. If you want an attachment, I will issue it.
“Mr. Bond: We take exceptions to the ruling of the court.
“Mr. Bond: Comes now the defendant and asks the court to issue an attachment for the witness Jim Manning, mentioned in the affidavit for continuance by the defendant and that he be given an opportunity to have such attachment served and that the said Jim Manning be produced in court before proceeding with this cause.
“By the Court: Proceed with the case and let the record show that the attachment is being issued for the witness, Jim Manning.
“Mr. Bond: Comes now the defendant and moves the court to delay the trial of this case until the defaulting witness, Jim Manning, can be produced by the officer under such attachment.
“By the Court: Motion overruled.
“Mr. Bond: Exceptions.”

The defendant in his motion for continuance on account of the absent witness, Jim Manning, did not ask for a continuance for the term, but asked that the case be delayed for a reasonable time that he might procure the attendance of the absent witness.

At the close of the state’s testimony, the defendant moved the court to delay the trial until a return could be made on the attachment ordered to be issued by the court for the absent witness Manning; which motion of the defendant was overruled and defendant duly excepted. It is a settled rule in this state that a motion for continuance is addressed to the sound discretion of the trial court, and its action thereon will not be disturbed unless an abuse of discretion appears. The state did not contest the motion for continuance on the ground that the motion was not made in good faith or was without merit. The motion upon its face appears to state all the grounds necessary for a continuance. The only witness who testified to the facts alleged in the motion for a continuance was the defendant himself, and the testimony of the absent wit* ness on the theory of the defendant was material to his defense, and it reasonably appears that the attendance of the witness Manning could be secured, if the case was continued for a reasonable time. Considering all the circumstances as disclosed by the record in this case, we think a clear abuse of discretion appears. The absent testimony set forth in defendant’s affidavit was material to his defense. Smith v. State, 10 Okla. Cr. 544, 139 Pac. 709; Franks v. State, 8 Okla. Cr. 71, 126 Pac. 582.

Upon showing made by the defendant for a continuance, we think the court abused its discretion in refusing to grant the motion for a continuance for a reasonable time; at least, it should have postponed the trial until a later day in the term, in order that the accused might have the benefit of the testimony of the absent witness, or until the attachment issued by order of the court for the absent witness had been returned.

For the reason stated, the judgment of the trial court is reversed.

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


text:
    G. KINDER v. STATE.
    No. A-7473.
    Opinion Filed June 28, 1930.
    (289 Pac. 796.)

      ■K. E. Bowling, for plaintiff in error.
    The Attorney General and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county on a charge of perjury in having sworn falsely to the age of a girl for the purpose of obtaining a marriage license, and his punishment fixed at imprisonment in the state penitentiary for a period of five years.

The defendant alleges numerous errors, but for the purpose of deciding this case it will only be necessary to consider one of them. Defendant contends that the county attorney in his closing argument made grossly improper and unwarranted appeals to the prejudice of the jury and commented on the failure of the defendant to testify. It appears from the record that, during the closing argument of the state made by Mr. Winn, the following proceedings were had:

“By Mr. Goodwin: If the court please — the defendant moves the court to instruct the state’s attorney to limit his argument to the facts in the case—
“By the Court: Overruled.
“By Mr. Goodwin: Exception.
“By the Court: I’ll give you one other additional instruction—
“Gentlemen of the Jury — You will just consider the evidence that comes from the stand and what an attorney on either side says is not evidence — the attorneys may make comments, but you consider the evidence that the court permits you to hear from the stand—
“By the Court: “All right, proceed with the argument.”

Thereupon the court ordered the reporter to take down the remainder of the argument of Mr. Winn, which was done. In this argument counsel appealed first to the mob spirit and sought to arouse the passion and prejudice of the jury by saying:

“* * * The most fortunate thing that ever occurred in the life of this man is the fact that he is permitted to go to trial in a court of justice before a jury of good honest men on a charge of this kind. If it had happened, Mr. Blake, over in Arkansas, where you and I was raised, he would have never went to trial, and you know it. * * *”

Next, under the guise of the sanctity of the home, counsel said:

“* * * You talk to me about criminals — talk to me about white slave agents — I submit that the fair deductions of the evidence in this case warrants me in making this statement and warrants the jury in believing such a statement — that that man is nobody but a white slave agent- — -working—a man from Kansas City, Missouri, down here tolling little girls off from respectable family, that’s been born and raised in this town, who has brought disgrace and debauchery upon one of the best families in this town, Henry. Are you going to permit a man of that character to come into this town and indulge in a thing of that kind. * * *”

The counsel next criticized the defendant in the following language:

“If your purposes were honest, — (referring to the defendant) and another thing, why don’t you have your wife sitting around you here by you, she is sitting in this court room at this time. * * *”

Thereupon the following proceedings were had:

“By Mr. Goodwin: If the court please, that’s highly prejudicial — there is no evidence that his wife is in the court room. * * *
“By the Court: Yes, you won’t consider that statement, gentlemen—
“By Mr. Goodwin: I would like to have the court suggest that counsel stay within the record—
“By the Court: I will strike it out if I think he gets out of the record.”

A careful examination of the record discloses that there was no evidence in the record tending to show that the defendant was a white slaver, nor that his wife was sitting in the court room, nor that defendant had attempted to invade any of the homes in that community, nor that he made the acquaintance of any other girls, nor that he attempted to induce any other girls to leave their homes and go away with him. These remarks were highly improper, and evidently made for the purpose of prejudicing the jury.

When counsel for the defendant objected to the remarks of Mr. Winn as being out of the record, it was error for the trial court to overrule such objections. The court should have sustained the defendant’s objections and admonished counsel to stay in the record, and, if he failed to do so, the jury should have been excused and counsel reprimanded and forced to argue inside the record. This court has repeatedly held that, where counsel appeals to the mob spirit or goes outside of the record in his argument, as counsel did in this case, the cause would be reversed. Sights v. State, 13 Okla. Cr. 627, 166 Pac. 458; Childs v. State, 13 Okla. Cr. 461, 165 Pac. 622; Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522; Payne v. State, 21 Okla. Cr. 416, 209 Pac. 334; Murray v. State, 24 Okla. Cr. 113, 217 Pac. 891.

Defendant’s counsel also contends in this connection that Mr. Winn, counsel for the state, commented on the fact that the defendant did not take the witness stand in the following language:

“Now, Gentlemen, I want to be fair and I want to be honest with this defendant, and I am going to be. The only evidence in this case, gentlemen of the jury, in behalf of the defendant is statement offered by attorney for the defendant when he made his statement to the jury— and I submit that not a single statement made by his counsel has been brought out by the evidence of the witnesses in this case — not one. * * *
“The little girl says T am 14 year's of age’ and he wanted her to change it and she wouldn’t and he changed it — the little girl testified to that. Has that been disputed? Has there been a witness on the stand that disputed that fact? If so, tell me his name. Point him out to me. Why was that statement obtained, Charley? Mr. Franklin, did he present that statement to you? No. Where is that statement? and the distinguished counsel for the defense in this case undertakes to tell this jury that he presumed — Oh, yes, presumed it is in the possession of the county attorney in this case. There’s a man experienced in this kind of business. There’s a man engaged in this kind of business — There is a man obtaining from that little girl a statement in writing that would be a defense — -when he was arrested. And he has got it in his possession today. Why didn’t you produce that? * * *
“* * Did he deny that? Does anybody deny that in this case? Has any of the facts set up in here been controverted by anybody? Has any facts stated by the little girl been contradicted or been controverted or denied? Has any of the facts stated by the court clerk been denied? * * *”

The trial court having denied defendant’s counsel the right to object at the time argument was being made and advising him that he might make a general objection at the close of the argument, the defendant made such objection in the following language:

“By Mr. Goodwin: Defendant excepts to the entire closing argument of the state.”

Section 2698, C. O. S. 1921, provides:

“In the trial of all indictments, information, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

This court has many times held that the provisions of this statute are mandatory, and that, if counsel comments either directly or indirectly upon the failure of the defendant to testify, this court must reverse the case. This court had under consideration this question in the case of Schrader v. State, 40 Okla. Cr. 261, 268 Pac. 325, and said:

“The statute which provides, where a defendant in a criminal case fails to testify in his own behalf, such failure must not be mentioned on the trial, is specific in its terms, and must not be violated, directly or indirectly.”

The question is fully discussed in the body of the opinion in the above case. It appears from the record in the case at bar that counsel deliberately attempted to get before the jury in an adroit manner the fact that the defendant had not testified in his own behalf. This was highly improper and could not fail to be prejudicial to the rights of the defendant. For the reasons stated, the cause is reversed and remanded, with instructions to proceed with the trial of the case in accordance with this opinion.

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


text:
    JOE URIOSTE v. STATE.
    No. A-7376.
    Opinion Filed June 28, 1930.
    Rehearing Denied July 19, 1930.
    (289 Pac. 1117.)
    Clay Snodgrass, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Jackson county on a charge of having possession of intoxicating liquor, and was sentenced to pay a fine of $200 and costs, and be imprisoned in the county jail for a period of 30 days; from which judgment the defendant has appealed to this court.

The defendant filed a motion to suppress the evidence on the ground that it was secured by an illegal search warrant, which motion was overruled and the defendant duly excepted. The evidence tends to show that on the quarter section of land where the defendant resided there was another residence and a tent occupied by other families. A search was made of all the buildings and the whisky found in the chicken house near the residence of the defendant. The evidence is sufficient to support the judgment. Under the record in this case the court did not err in overruling the defendant’s demurrer to the evidence.

Finding no errors in the record sufficient to reverse the case, the judgment is affirmed.

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


author: DAVENPOET. J.

text:
    MRS. HOWARD REYNOLDS v. STATE.
    No. A-7426.
    Opinion Filed June 28, 1930.
    (289 Pac. 782.)
    P. G. Fullerton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPOET. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted upon a charge of having under her control certain intoxicating liquor, to wit, 48 pints of beer, with intent to violate the prohibition laws of the state of Oklahoma, by bartering, selling, giving away, or otherwise disposing of the same, and was sentenced to' pay a fine of $250 and be imprisoned in the county jail for 60 days. Prom which judgment the defendant by petition in error and case-made has appealed to' this court.

The testimony on behalf of the state tends to show that a search warrant was secured by S. A. Logan, a constable, who in company with Mr. Thoroughman and others went to the home of Howard Eeynolds, the husband of the defendant; Howard Eeynolds was away from home at the time, and also the defendant, Mrs. Howard Eeyn-olds. The officer testified he knocked at the door and a small .boy opened the door and he went in; Mrs. Little-page, the mother of the defendant, was in the house and some one else; they searched the home and found several bottles of home-brew.

Upon the hearing of the motion to suppress the evidence, the return of the officer was introduced, showing as follows :

“Eeceived this writ August 4, 1928. Executed same August 11, 1928, by going to the within named place, and as herein commanded did make diligent search and found following goods named in this writ, to wit: 48 pint bottles of intoxicating beer and destroyed same after drinking some of beer in order to know whether it was intoxicating or not. S. A. Logan, constable.”

The testimony further shows that shortly after the officers began making the search, the defendant, Mrs. Howard Eeynolds, came home, and she was arrested, charged with the possession of the beer, as shown by the proof of the state to be home-brew.

Before calling the case for trial the defendant filed a motion to suppress the evidence secured, for the reason that the evidence that would be offered by the state was secured by an unlawful search of her premises; that no service of the search warrant was had upon her, and that the search warrant, if any was issued, was void, and that the same was based upon an affidavit wholly insufficient to give the magistrate jurisdiction to issue the search warrant thereon. Upon a hearing of this motion it was stipulated between the state and the defendant that the search warrant was issued by D. Moncrief, Sr., justice of the peace, on August 4, 1928; that S. A. Logan made the affidavit; that the affidavit contained all the testimony submitted to the magistrate before the issuing of the search warrant; that the return of S. A. Logan, as constable, is a full report of the proceedings had in connection with the said search, and the disposition of the articles and things seized. The motion to suppress was considered by the court and overruled, and the defendant duly excepted.

The defendant has assigned five errors alleged to have been committed during the trial of his case, the first being error of the court in overruling plaintiff in error’s motion for a new trial. The assignment alleging the court erred in overruling the motion for a new trial covers all the other assignments.

Section 7099, C. O. S. 1921, provides for the manner of executing a search warrant and service of the same. It requires the officer to whom the search warrant is addressed to seize all such liquor found, together with the vessels in which it is contained, and all implements used or kept for suck illegal manufacture, selling, bartering, giving away, or otherwise furnishing the same, and to safely keep the same and make a return on said warrant within three days showing all the acts and things done thereunder, with a particular statement of all the property and things seized of the person or persons in whose possession the things were found, and, if no person be found in possession of said property and things, the return shall so state. A copy of the 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 possession thereof, a copy of the said warrant shall be posted on the door of the building or room wherein the same are found.

The defendant in this case alleges that no warrant was served on her, nor any one in possession of the premises searched by the constable. The return of the constable fails to show that a copy of the search warrant was served on the defendant, or posted on the buildings as required by the statute.

Section 7009, supra, requires that the search warrant be served and returned within three days. The return of the officer in this case shows that he received the writ on the 4th day of August, 1928, and did not serve the same until August 11, 1928. The record further shows that he did not comply with the statute by serving a copy of the warrant on the party in possession of the premises, or, if no one was found in possession, by posting a copy on the door of the building. The service of the search warrant was void, and any evidence secured thereunder was inadmissible.

The judgment is reversed.

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


text:
    EARL EXLINE v. STATE.
    No. A-7471.
    Opinion Filed June 28, 1930.
    (289 Pac. 783.)
    Scott, Haunstein & Wells, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county on a charge of having possession of narcotics, and his punishment fixed at a fine of $500 and imprisonment for a term of two years in the penitentiary. The evidence in the case is undisputed and conclusive as to the guilt of the defendant.

Counsel for defendant assign and argue but one question: That the trial court committed error in giving instruction No. 11, for the reason that the same invades the province of the jury and assumes as proven a material issue in the case. The instruction complained of is erroneous and should not have been given; but under all the facts and circumstances as they appear in the record, the defendant was not injured thereby. It appears from the record that the court had instructed the jury. That the state had made its opening argument, and that the defendant’s counsel in arguing the case had contended it was not only incumbent upon the state to prove that the defendant was in possession of the narcotic, but that the same had not been obtained by the defendant in lawful manner, upon the prescription of a physician. It is apparent that the court gave the instruction complained of to correct any erroneous impression that might have been made upon the minds of the jury by the argument of defendant’s counsel.

This court can see no good reason why the instruction complained of was given. However, it is not such a comment on the evidence, nor does it shift the burden of proof to the defendant to such an extent, as to require a reversal of the case. It is not every error in the instructions that requires a reversal of a criminal judgment under the statutes of this state. In the case at bar the state made out a clear case of guilt and the defendant made absolutely no defense. The conviction is just, and no honest and intelligent jury could have arrived at any other conclusion irrespective of the giving of the instruction complained of.

In the case of Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087, this court said:

“When an error has been committed upon the trial of a case, it is the duty of this court upon an inspection of the entire record to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.” Holmes v. State, 18 Okla. Cr. 415, 195 Pac. 508; section 2822, C. O. S. 1921.

In view of the fact that no defense was made to the charge and in view of the decisions of this court, the judgment must be affirmed. For, in addition to the fact that the jury were not misled by the instruction complained of, it is apparent that no miscarriage of justice Resulted and that the error complained of was not sufficient to require a reversal of the case when the entire record is considered.

For the reasons stated the cause is affirmed.

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


text:
    GLENN JORDAN v. STATE.
    No. A-7386.
    Opinion Filed June 28, 1930.
    (290 Pac. 340.)
    John T. Levergood, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county of having unlawful possession of one and one-half gallons of whisky, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of five months.

The evidence of the state was that the officers having a search warrant searched the premises of the defendant; that one officer went into the room where defendant and his wife were, and that defendant ran out the hack door with a quart jar of whisky in his hand and broke the same on a stone walk outside; the defendant’s wife took a gallon jug of whisky out of the cabinet and broke it against the bedpost in the house; that in a search of the premises they found three five-gallon kegs back of the house and that there was a strong odor of whisky coming from these kegs, and they found in the cellar a half-gallon fruit jar with a quantity of whisky in the bottom of it and some mash on the floor, together with several 50-gallon barrels that had had mash in them. The affidavit and search warrant ■ being sufficient, this evidence was admissible, and the cause must be affirmed unless the errors complained of by defendant are sufficient to require a reversal.

The defendant contends that the court erred in overruling his motion to quash the jury panel. The record shows that by reason of the failure of jurors to respond to summons, and because certain jurors were excused, only eleven jurors remained on the regular panel, thereupon the court issued an open venire directed to the sheriff requiring, him to summon sufficient additional jurors to complete the panel and directed the clerk to place the names of such jurors in the box to constitute part of the regular panel for that term of court. The defendant contends that the court had no right to issue a special venire until all the regular panel had been exhausted. This contention is without merit. The statute vests large discretion in the trial judge in the matter of summoning additional jurors. For a full discussion of this question, see Rhodes v. State, 42 Okla. Cr. 382, 276 Pac. 698.

Defendant further contends that it was error for the court to permit the sheriff to serve the open venire, but the record does not support this contention. The sheriff took no part in the search or seizure and was not used as a witness in the case.

Defendant further complains that the court erred in giving his instructions to the jury. Defendant in his motion for new trial raised no question of erroneous instructions, and in his petition in error in this court he does not allege error in the giving of any instructions. The record therefore presents no question for this court. 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.