text:
    ED GING v. STATE.
    No. A-4999.
    Opinion Filed Oct. 3, 1925.
    (239 Pac. 685.)
    A. J. Stevens, C. E. Wilhite, and A. R. Carpenter, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Ed Ging, here referred to as the defendant, at the time of the homicide, was about 50 years of age. About 15 or 16 years before he had married Cora Ging, who was then a girl of the age of 15 years. Two children were born to this union, a boy and a girl, at the time of this tragedy of the respective ages of 9‘ and 14 years. The domestic life of the defendant and his girl wife was unhappy and turbulent from the beginning.

Almost a year prior to the date of the homicide the defendant had employed a farm hand named Red Lahm, who for a short time resided in defendant’s home, but who was shortly discharged on account of alleged improper relations with defendant’s wife. Almost immediately thereafter the defendant’s wife left home and went to the town of Carmen, presumably to complete some business transactions there pending. A neighbor boy, with whom she had driven to Carmen, came back and reported to the defendant that she did not intend to return. Some time later the defendant procured a divorce on the ground of abandonment, and in the decree he was awarded the care and custody of the two children and all of the joint property of himself and wife. Following the granting of the divorce, Mrs. Ging married this former farm hand, Red Lahm.

On the 4th of July, preceding the homicide in August, the former wife of the defendant came into the neighborhood where he lived and made inquiry as to his whereabouts, but failed to meet him on that occasion. To some of the neighbors she stated that she intended to have a property settlement and some arrangement about the children, and in this connection used language that might be construed as a conditional threat against the life and safety of the defendant. These conversations, or portions of them, were communicated to the defendant. The defendant also claims that just before their separation his wife assaulted him with a gun and a butcher knife.

On August 18, 1923, the defendant’s wife again came into the neighborhood and sent word to the defendant that she wanted to see him, requesting that he come to where she was at the home of a neighbor. He at first refused to go, but later, in company with another neighbor, started to ride on horseback by the place where she was, as he claims with the intention of talking to her in the event she called to him to stop. The defendant told his companion that, if she did not call or beckon to him, they would ride on past the place. While the defendant and his companion were riding towards this neighbor’s house they saw defendant’s former wife and her brother approaching in a Ford touring car. As to what took place then we quote excerpts from the testimony of eyewitnesses — Mr. Mizar, brother of the deceased, Mr. Viers, the defendant’s companion, and the defendant himself.

From Mr. Mizar’s testimony:

“Q. What did you do when you met them? A. She says, ‘Stop.’ We didL
“Q. Your sister said to stop? A. She did.
“Q. Did Charley Viers and Ed Ging stop? A. Yes, sir; they did.
“Q. Then what was said or done? A. They spoke. We spoke, and they spoke. Ed got off his horse and walked around to the side of the car, on the west side of the car.
“Q. That was the side of the car where your sister, the deceased, Cora Ging Lahm, was sitting, was it? A. Yes, sir; it was, on the right-hand side.
“Q. You said he walked around to the west side of the car beside your sister? A. Yes; he did.
“Q. Then what took place, when he did that? A. Well, he said, T understand you want to see me.’ She said, ‘Why shouldn’t I want to see you, because I want to see the children.’ He says, Y understand you want a settlement.’ I don’t remember what words she said, if she said anything just then. Then they started to quarreling and wrangling over their past life.
“Q. Do you recall just what the conversation was; in substance, at least? A. He wanted to know where her husband was, or where Red was, and she told him where he was. He says, ‘That’s the s— o— b— I want to see.’ She says, ‘You don’t want to go up there looking for trouble; if you do, you will sure get it.’ Then he jumped back and he said, ‘You have caused me the last trouble you are going to.’ He jumped back, and got his revolver, and started to shooting.
“Q. How many times did he shoot? 'A. He shot three or four times, as near as I can remember.
“Q. About how close was Ging to the car at that time? A. He was about five or six feet, as near as I can judge.
“Q. Was he straight from the car? A. He was kind of angling. * * *
“Q. What did Ed Ging say to you when you asked him what you should do with her (after the shooting) ? A. He said, ‘Take her on; I am through with her.’
“Q. Did the deceased have any gun or weapon of any kind? A. No, sir; she did not.
“Q. Did you have any? A. No; I didn’t have any.
“Q. Did she make an effort to attack him or assault him in any way? A. No, sir; she did not. * * *
“Q. What position did she take when he started to shoot, or before he shot; what position did she take in that seat? A. She faced him.
“Q. Turned around this way (indicating)? A. Yes; she did.
“Q. For what purpose did she do that? A. I don’t know that. * * *
“Q. Where were her hands when he fired the second, shot? A. Up like this (indicating by throwing up hands.)
“Q. She brought them up after he fired the first shot? A. She did.
“Q. Where were they when he fired the third shot? Were they up when he fired the third shot? A. Her hands were still up; yes.
“Q. How many bullets took effect in her body? A. There was two of them.”

From the testimony of Charley Viers:

“A. Defendant asked me if I wanted to ride with him, and I told him I didn’t care, and he said he was going to go up by the Sanders home, and if they wanted to see him they would come out and stop him in the road, and if they didn’t want to see him he wasn’t going to stop there. On the way up there we met Mr. Lee Mizar and' Mrs. Cora Lahm. Ed had told me, just before we got to them, ‘If they don’t stop, we will not stop.’ We got very near by the car, and they stopped the car, and then we stopped and turned around. Ed spoke, and I spoke, and Mrs. Lahm says, ‘Hello, Ed.’ Ed was sitting on his horse, and he says, T understand you want to see me.’ She said, T do.’ ' He got off his horse, and walked to-the opposite side of the car from where we were, to the right-hand side of the car, and asked her what she wanted to see him about, and she said she came down for a settlement. Ed asked her ‘What kind of a settlement?’ ‘Well,’ she says, ‘on the children and over this personal property.’ She asked Ed if he didn’t think she was entitled to half of this personal property, and Ed told her he didn’t; that the court had set aside this personal property and the children to him, and had given him the right to them, and he didn’t think that he should make any settlement. * * * Ed told her that, if she had stayed and acted right, she could have gone away and had half of this stuff, or could have lived there happily. He said, ‘But you know how you went away and I don’t think you’re entitled to your share of that.’ She said, T wouldn’t have left if you hadn’t slapped me one day when I came from town.’ Ed said he never slanped her, and she said he did, and she told Ed she didn’t come down for a, racket, but for a settlement, and that she expected one. Ed said, ‘I have made all the settlement I am going to make.’ He asked her where this Red Lahm was, and she says, ‘You don’t need to look for Red Lahm, or go to Red Lahm looking for trouble; if you do, you will get all the trouble you want.’
“Q. Then what took place, if anything? A. Ed pulled out his gun and shot.
“Q. How many times did he shoot? A. He shot three times, if I am not mistaken; three or four times.
“Q. Did you make any protest against his shooting? A. Yes, sir; I halloaed; but I was sitting on my horse, and my horse was headed towards the north, with my feet on the side of the car, and I halloaed, and that was all I could do.
“Q. Did you see either Lee Mizar or the deceased have ■ any gun or weapon of any kind? A. No, sir; I did not.
“Q. Did you see either Lee Mizar or the deceased make any assault of any kind upon the defendant? A. No, sir; I did not. * * *
“Q. Now, from where you were sitting, did you see what the deceased did, just before the first shot was fired —what move she made., if any? A. I couldn’t say as to that.
“Q. You couldn’t say? A. No, sir; I could not.”

From the testimony of the defendant, Ed Ging:

“A. Well, I seen a Ford car coming, and when they got close enough I said, ‘That’s them coming now; if they don’t stop, let’s not stop; but, if they do stop, we will stop and see what they want.’ We rode up until we got in front of the car, and we turned to the east side, and I was on the east side of Charley Viers. That throwed Charley next to the car, and me on the east side of him, and we started on by, and when we got past the car they came to a stop. Charley said, ‘They want you.’ We turned around to the west, like, and that throwed me next to the car, and I rode up by the side of the car, and they both spoke to me, and they said, ‘Hello, Ed.’ I said, ‘Hello.’ .She said, ‘How are you getting along?’ I said, ‘All right, so far as I know.’ I got off my horse, and started around the front of the car, and got around on the side where she was at. As I was going around the car, she spoke up and wanted to know where the cfiildren were, and I didn’t give her no answer where they were. I walked on along by the car, and I said, ‘Where’s Red?’ She says, ‘It don’t make any difference about where Red is at; he will tend to you.’ She didn’t tell me where he was. I said, T undertsand you want to see me.’ She says, T most certainly do.’ I said, ‘Well, what is it you want to see me about?’ She says, T come for a settlement.’ I said, ‘We haven’t got no settlement to make that I know of; I 1-eft everything up to the court and the court settled everything there was to be settled.’ Then she said, T have been here three different times looking for you, and couldn’t find you.’ I said, ‘Well, I heard you were here the night before the 4th; I heard of different times that you have been here; the night before the 4th I heard you was here at Mr. Hold’s place; I heard you was there, and told him the day before you left the reason you left was that I beat up on you, and that you had a scar on your head, on the side of your head.’ She said, ‘You did.’ I said, ‘No, Cora; you know you lied.’ She said, ‘You slapped me.’ I said, T did not.’ She spoke up, and she says, ‘Well, it don’t make a damned bit of difference what the law said or did; settlement is what I want, and I am going to have it.’ She started and reached around this way (indicating) , and I, of course, got excited, and I thought of what she had said before at times, and lost my head, and I pulled by gun and went to shooting.
“Q. How close were you to her? A. Well, when she started to turn around, I was standing with one foot on the fender, and when she started to turn around this way (indicating) I stepped back a couple of steps and pulled my gun out of my pocket.
“Q. Which way did she turn? A. She turned around this way (indicating), and started to reach behind.
“Q. Started to do what? A. To reach behind.
“Q. What did you think she was going to do when she did that, Mr. Ging? A. From the threats she had made before, I supposed she was going after a gun.
“Q. What did you say to her? A. I said, ‘If that’s the way you are going to settle it, we will settle it now.’
“Q. When you said that, what happened? A. I pulled my gun and went to shooting.
“Q. Did you shoot more than once? A. I did.
“Q. Do you know how many times you shot at that time? A. I do.
“Q. How many times did you shoot? A. I shot threé times.”

Cross-examination:

“Q. You say she turned around in the car? A. Yes, sir; she did.
“Q. Which way did she turn? A. She turned to the right.
“Q. And you say she made a motion with her hand, or something? A. She didn’t make no motion. She reached around this way behind (indicating by putting hand behind back).
“Q. You don’t know whether she was just putting her hand around there to turn around this way or not (indicating), do you? A. She turned around like this (indicating), and went to reaching with her hand.
“Q. You pulled out your gun? A. I pulled it out; yes.
“Q. And shot? A. Yes.”

On cross-examination the defendant was asked the question, “Why did you shoot her?” The defendant objected, and the objection was sustained. The next question, “Did you intend to hurt her?” was suppressed in the same manner.

In the course of the examination of the defendant, offers were made to show that in the year 1917 the deceased threatened to shoot the defendant with a revolver, and that the defendant disarmed her; that in 1918 she told her daughter Ruby, “If he (the defendant) ever comes after me again, when I leave I will shoot his damned head off; I’m just as quick with a gun as he is;” that in 1922 the deceased again made indefinite, unde-scribed threats against the defendant in the hearing of the daughter; that about two years before the homicide the deceased, in the presence of 'the daughter, said she would kill the defendant before'the sun went down that day; that in July, preceding the homicide in August, she told Dick Howard that, if the defendant disposed of a certain horse, there would be trouble; that in 1922 the deceased told Will Ging and his wife that, if Ed tried to force her to return to him, she would blow his brains out; that she told Dr. and Mrs. Lewis, in July preceding the homicide, that she was looking for Ed, and it was a good thing she didn’t see him, or there might have been a shooting; and that some of these threats, or veiled threats, were communicated to the defendant, just which ones and in what manner does not appear.

The court refused these proffers of testimony, on the ground that they were indefinite and remote in point of time, with the exception of those that took place in July, and because there had been no showing that the deceased at the time of the homicide committed any overt act which would reasonably cause the defendant to believe that she contemplated violence against him, and because the proffers were indefinite and otherwise insufficient. This ruling of the court was inconsistent with his instructions to the jury submitting the issue of self-defense. We think that evidence of the more recent incidents should have been admitted, but that the exclusion of this proffered evidence, under the circumstances shown, should not operate as a reversal of the cause. In this connection we must consider that the evidence of the alleged overt act just prior to the shooting was demonstrative, and that the court may have been justified in holding that the demonstration did not reasonably show any design to kill or to use a deadly weapon.

In the same connection we are bound to consider the fact that the defendant’s first shot went wild, and that the fatal shots were fired while the deceased was holding her hands aloft, and while she and the two witnesses begged the defendant not to shoot. In this position she was powerless to do the defendant any harm, and, being so situated, former threats would constitute no excuse or justification for the firing of the- subsequent shots. Mere threats alone are not sufficient to justify a homicide; to justify the claim of self-defense, there must be something further done on the part of the deceased, usually some overt act, such as would reasonably cause apprehension of immediate danger. Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046; Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766. As heretofore stated, defendant’s counsel would not permit him to answer the following questions:

“Why did you shoot her?”
“Did you intend to hurt her?”

Defendant claims that the submission of the issue of manslaughter was error. There was some evidence showing a quarrel just before the fatal shooting. From this and other circumstances the jury might have concluded that the fatal act was committed in the heat of passion, or done unnecessarily, after the alleged attempt on the part of the deceased had failed. Where the evidence shows any element of manslaughter, however slight, an instruction defining that degree of homicide is proper. James v. State, 14 Okla. Cr. 204, 169 P. 1127.

In instruction No. 8 the court told the jury that, before the defendant could claim that he was acting in self-defense, it must appear that he really and in good faith endeavored to decline any further struggle or combat before the homicide was committed. This declaration was inaptly worded, but under the evidence it could not have been misleading. After the first shot was fired, the deceased demonstrated that, so far as she was concerned, the combat, if any there was, had come to an end, and she was then powerless to inflict any personal injury upon the defendant. At the point where the apparent danger ceases, the right of self-defense ceases. The right of self-defense must be founded in good faith; there must be a necessity, real or apparent, to j'ustify one in invoking the right of self-defense. 30 Corpus Juris, 44.

In the opinion of this court, the errors appearing in the record- are of minor importance, insufficient to warrant a reversal of the j'udgment of the trial court.

The j’udgment of the trial court is therefore affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    HAMILTON WALTERS v. STATE.
    No. A-5135.
    Opinion Filed Oct. 3, 1925.
    (239 Pac. 682.)

      King & Crawford, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error was convicted upon an information charging that in Pontotoc county, July 28, 1923, he did sell to one Oscar Harjo one pint of corn whisky, and, in accordance with the verdict of the jury, he was on January 8, 1924, sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. From the judgment he appealed by filing in this court, April 21, 1924, petition in error with case-made.

The errors assigned are that the verdict is contrary to the law, and to the evidence, and that the court erred in the instructions given. No brief in support of the assignments of error has been filed, and no appearance made in his behalf in this court.

Oscar Harjo testified that at a pachofa at Johnson’s place near Steedman, in Pontotoc county, about 4 o’clock in the morning he bought a pint of whisky off the defendant, paying him $1.50 therefor; that Ben Alexander was present.

Ben Alexander testified that he was present when Hamilton Walters sold a pint of whisky to Oscar Harjo, and saw Harjo pay him a paper dollar and a silver half dollar for the whisky, and that he helped Harjo to drink it.

As a witness in his own behalf, the defendant testified that he attended the pachofa at Johnson’s, and saw Oscar Harjo and Ben Alexander there, but he did not sell them the whisky, that they were drunk, and he had a fight with them at that time. He admitted, however, that he had a bottle of whisky in his pocket at the time.

We have carefully examined the whole record, and find that the evidence is sufficient to sustain the verdict, and the instructions fully stated the law applicable to the case.

The judgment appealed from herein is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    SCOTT PICKETT v. STATE.
    No. A-5185.
    Opinion Filed Oct. 3, 1925.
    (239 Pac. 678.)
    E. P. Neal, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was tried on a plea of not guilty to an information filed in the district court of Tulsa county, August 16, 1923, charging that he, Scott Pickett, in Tulsa county, June 18, 1923, did kill and murder one Leslie Brooks by shooting him with a pistol. The jury returned a verdict finding him guilty of murder as charged in the information, and assessing his punishment at imprisonment for life at hard labor in the state penitentiary.

A motion for new trial was overruled, and on November 24, 1923', the court rendered judgment in accordance with the verdict. From the judgment, an appeal was taken by filing in this court May 23, 1924, a duly certified transcript of the record proper, together with proof of service of notices of appeal.

It will be observed that the petition in error, with transcript attached, was filed in this court one day within the six months allowed by the statute in which to take an appeal. The transcript contains a copy of the information, the minutes of the plea of not guilty, a copy of the minutes of the trial, and a copy of the judgment, but does not contain the instructions given. No reason is apparent why a transcript of the testimony taken upon the trial is not attached.

On July 2, 1924, there was filed in the case an affidavit, subscribed and sworn to by plaintiff in error on the 20th day of June, 1924, wherein affiant states that he is confined in the penitentiary, and that by reason of his poverty is wholly unable to pay for the prosecution of this appeal, and it is necessary for him to have a transcript of the record and asking for an order of this court to have the necessary records made at the expense of the county or the state. Which affidavit having been filed more than six months after the judgment was rendered, the application was denied. If said affidavit had been filed in the proper time, this court would have made the necessary orders to secure a transcript of the testimony taken upon the trial in the form of a case-made.

The errors assigned are that the court erred in rendering judgment, in that the same was contrary to the law and the evidence, and that the court erred in admitting incompetent evidence and in excluding competent and legal evidence on the part of plaintiff in error. Upon the record before us, in the absence of a transcript of the testimony, the errors assigned cannot be considered.

We have examined the information and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

The judgment of the district court, appealed from herein, is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    In re OPINION OF THE JUDGES. In re JOHNNIE WASHINGTON.
    No. A-5390.
    Opinion Filed Oct. 8, 1925.
    (239 Pac. 676.)
   Opinion rendered by EDWARDS, J., in response to communication:

To His Excellency, the Governor of the State of Oklahoma:

The judges of the Criminal Court of Appeals responding to the official communication of Hon. M. E. Trapp, as Governor of Oklahoma, to this court which presents for the consideration of the judges of the court a certified copy of the record of the conviction of Johnnie Washington, with the request that we give an opinion upon said record as prescribed by section 2786, Comp. Okla. Stat. 1921. The certified record discloses that the said Johnnie Washington was on the 12th day of December, 1924, in the district court of Jackson county, sentenced to death, in accordance with the verdict of the jury, as returned upon his trial finding him guilty of murder and sentencing the death penalty, which judgment and sentence was that such execution should take place on the 19th day of February, 1925. And there being further presented by said official communication a certified copy of the record of the proceedings of said district court on the 8th day of September, 1925, by which it is made to appear that the said judgment and sentence of December 12, 1924, has not been executed and remains in force, and that on the application of the county attorney the said Johnnie Washington was again brought before the said district court of Jackson county, and by said court sentenced to death in accordance with the verdict aforesaid, which judgment and sentence is that said execution shall take place on Friday the 20th day of November, 1925. We hereby submit the following opinion:

The records accompanying the request of his excellency, the Governor, further disclose that no appeal has been taken in said cause and that the time for appeal has expired. There is then submitted to this court this proposition: Has there been an observation of all the formalities of law essential to the taking of human life? That is, has the trial, conviction, and sentence of death been in accordance with the law of the land?

Upon a full examination and consideration of the record, testimony, and proceedings submitted, we find that the information sufficiently charges the crime of murder, and that the charge is clearly and conclusively proven by the evidence introduced upon the trial. And that in the light of the evidence there can be no reasonable doubt of the defendant’s guilt of murder; that the defendant, while engaged in a burglary in the nighttime, was accosted by an officer in the line of his duty, and, without warning, the defendant shot and killed such officer. The defendant had counsel appointed by the court, who fully protected all his legal rights. The proceedings of the trial were orderly, the instructions in the case correctly state the law applicable, and we find no error in the proceedings of the trial.

It further appears that for some reason, not apparent upon the record before us, but stated by the court in the proceedings of September 8, 1925, to have been through an inadvertence of the warden of the state penitentiary that the defendant was not electrocuted at the time fixed in the original sentence, and that the judgment has not been executed and remains in force.

Sections 2796, 2797, Comp. Stat. 1921, are as follows:

Sec. 2796: “If, for any reason, a judgment of death has not been executed, and remains in force, the court in which the conviction was had, on the application of the county attorney, must order the defendant to be brought before it, if he is at large, a warrant for his apprehension may be issued.”
Sec. 2797: “Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reason exists against the execution of the judgment, must make an order that the sheriff of the proper county execute the judgment at a specified time. The sheriff must execute the judgment accordingly.”

The latter section is modified by section 2799, Gomp. St. 1921, which provides that the execution of death shall be within the walls of the state prison at McAlester,.

Under these provisions of law, it was legal and valid that the defendant be returned to Jackson county, and sentence be ordered carried out as provided therein. We are of opinion that the defendant, Johnnie Washington, had a fair and impartial trial, and that all the formalities of law and proceedings, including those of September 8, 1925, essential to the infliction of the death penalty, have been observed.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY, P. J.

text:
    HARVE WORLEY v. STATE.
    No. A-4935.
    Opinion Filed Oct. 9, 1925.
    (239 Pac. 683.)
    John A. Goodall, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, defendant in the trial court, was convicted of the sale of one-half pint of whisky. His punishment was assessed at 90 days in jail and a fine of $300.

Felix Sanders testified that he purchased three pints of whisky from the defendant at a certain barn in Stil-well. There was no other direct testimony of the sale.

Upon the question of sale the defendant testified in his own behalf as follows:

“Q. Mr. Worley, you heard Felix Sanders testify about the alleged purchase from you on the 20th of December, last year. Did you sell Felix Sanders any whisky? A. No, sir.
“Q. Do you remember of seeing him on that day? A. Well, I think I did; yes.
“Q. What called your attention to this particular day? A. Well; he and some other fellows were drunk there in the barn, Mr. Harper’s barn, and I come through the barn, and Feroruson came and arrested some of the fellows. — one fellow named Thacker — and threw them in the city jail.”

The defendant offered no evidence as to his character or reputation. On rebuttal, over the objections of the defendant, the state was permitted to show by two deputy •sheriffs that the defendant had the general reputation throughout the county of' being a bootlegger. So well established that a citation of authorities is unnecessary fe the rule that the commission of a particular crime by an accused person cannot be shown by common rumor or general reputation. Furthermore, the state cannot attack the character or reputation of a defendant unless the latter first puts it in issue by introducing evidence of good character. Upton v. State, 12 Okla. Cr. 593, 160 P. 1134.

A defendant in a criminal case who testifies in his own behalf may, for purposes of impeachment, be cross-examined as other witnesses, but cross-examination as to separate and distinct transactions is not permissible.

Where one charged with the illegal sale of a half pint of whisky testifies that he did not make that particular sale, he waives the right to be immune from examination as to any matter that will shed light on that particular transaction, but this waiver does not extend to evidence concerning other distinct crimes of a similar nature. 28 R. C. L. 621.

In this regard there is a distinction between the evidence that may be elicited from any ordinary witness and a defendant testifying as a witness in his own behalf. Inquiries concerning character and reputation may tend to disgrace or discredit an ordinary witness without prejudice to the defendant except as they minimize the weight of the testimony on which the defendant relies; but where, as in this case, the accused takes the stand and testifies in his own behalf, but without putting his character in issue by introducing evidence of good character, proof of a bad reputation as being a bootlegger would iiave the inevitable effect of leading the jury to believe that he is probably guilty of the particular sale of liquor charged, based upon his general reputation. Grubbs v. State, 30 Okla. Cr. 256, 235 P. 1115; Upton v. State, supra; 28 R. C. L. 620.

Even where it is proper to inquire into the general moral character of a defendant witness for the purpose of impeachment, it is improper to inquire into the causes producing a reputation of bad character. The inquiry should be general and not specific. If specific it would amount to an investigation as to particular acts of misconduct not at issue in the prosecution. 28 R. C. L. 623.

It is clear that a witness in a larceny case should not be permitted to testify that the defendant had the reputation of being a thief; for the same reason a witness in a bootlegging case should not be permitted to testify that the defendant has a bad reputation as being a bootlegger. Where a defendant is charged with an offense based on one specific transaction, the question of character is not an element of the offense, and evidence of the general reputation of the defendant is inadmissible unless he himself puts it in issue. Upton v. State, supra; Grubbs v. State, supra; Thompson v. United States, 30 App. D. C. 352, 12 Ann. Cas. 1004; State v. Shockley, 29 Utah, 25, 80 P. 865, 110 Am. St. Rep. 639; State v. Gleim, 17 Mont. 17, 41 P. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655.

An ordinary witness may be impeached by showing his general reputation as a bootlegger, this being a business that involves moral turpitude, and affects his credibility as a witness only; but this is not true with the defendant where he is a witness, except where he himself puts his reputation in issue by offering evidence as to his good character. The dictum to the contrary in Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120, is condemned.

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

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    J. M. COOK v. STATE.
    No. A-4904.
    Opinion Filed Oct. 10, 1925.
    (239 Pac. 682.)

      Anglin & Stevenson, for plaintiff in error.
   EDWARDS, J.

From a conviction in the county court of Hughes county upon a charge of unlawful possession of intoxicating liquor, the plaintiff in error has appealed upon two assignments of error. First: The admitting of incompetent evidence prejudicial to the plaintiff in error; second, that, the judgment is not sustained by sufficient evidence.

The first assignment is predicated upon the admission of evidence obtained by a search warrant which plaintiff in error argues was not legal. This contention is not sustained by the record before us. The evidence is that the officers who made the search had a search warrant. There is nothing in the record to show that it was illegal and not properly obtained upon affidavit showing probable cause. Where the evidence is that a search warrant was issued and executed, the presumption is that the proper legal proceedings were observed, and the burden is on the plaintiff in error to overcome that presumption. This he has wholly failed to do, and his contention is untenable.

The second assignment that the evidence is insufficient is, we think, well taken. The evidence on the part of the state is that, under the authority of a search warrant, certain officers went to the residence of defendant, searched his house and found a fruit jar which smelled like it had had whisky in it. In or near a cellar they found two other fruit jars that smelled like they had contained whisky. In a tow sack about 100 yards from the house, in a cane patch, were found three half-gallon fruit jars, one of which was broken by the officers in procuring it. The other two were filled with whisky. This was upon the premises occupied by the plaintiff in •error, but there was no path leading to the whisky and no proof that it had been in the actual possession of the plaintiff in error. There was another house in which some family lived about 50 yards farther from where the tow sack containing the whisky was found than did the plaintiff in error. This was the substance of the evidence for the state. To sustain a conviction, we must infer that the whisky found 100 yards from the house was in the possession of the plaintiff in error, and that he had it with the intent to violate the prohibitory law. If the possession were clearly shown, the evidence would be sufficient under the prima facie presumption rule, but to sustain the judgment in this case there must be a presumption of possession and of the intent to violate the law. The indications are that the defendant is guilty. We might even say that there is a strong suspicion of guilt, but the evidence falls short of that convincing character that is required to warrant a conviction of guilt.

The case is reversed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    Ex parte TOM COLLINS.
    No. A-5796.
    Opinion Filed Oct. 10, 1925.
    (239 Pac. 693.)

      White & Nichols, for petitioner.

      Edward M. Box, Freeling & Howard, and G. B. Fulton, Atty. Gen., for respondents.
   EDWARDS, J.

This is a proceeding in habeas corpus by petitioner, Tom Collins, who alleges that he is wrongfully and unlawfully deprived of his liberty and confined in the penitentiary by William S. Key, warden. Writ denied.

The petitioner alleges that the cause of his confinement is as follows: That on the 9th day of February, 1923, he was convicted in the district court of Tulsa county for larceny of an automobile and sentenced to a term of 5 years in the state penitentiary; that on the 13th day of October, 1923, he was paroled by J. C. Walton, Governor of the state; that thereafter the said J. C. Walton was impeached and the duties of his office devolved on M. E. Trapp, Lieutenant Governor; that on the 21st day of June, 1925, the said Lieutenant Governor, acting as Governor, unwittingly attempted to revoke said parole. He alleges that such attempt to revoke said parole was brought about by J. G. Duncan, acting as a member of what is termed a “state constabulary” and by Parker La Moore,, secretary to the acting Governor; that said Duncan and La Moore caused the summary arrest of the said petitioner and caused him to be delivered to William S. Key, warden. Among other allegations, it is then alleged that the revocation of said parole.and the continued incarceration of the petitioner is due to the connivance and procurement of the said Duncan and La Moore and other persons, in furtherance of the conspiracy to extort money from the petitioner, and was without a hearing to determiné whether petitioner had complied with the terms of his said parole, and that said attempted revocation was not the act of the said M. E. Trapp, acting Governor, that said Lieutenant Governor, acting as Governor, was without power to revoke said parole, and that said attempted revocation and confinement is unlawful.

W. S. Key, warden of the state penitentiary, represented by the Attorney General, filed his response, setting out that said petitioner was in his custody as warden of the penitentiary by virtue of a judgment and sentence from the district court of Tulsa county and the mandate of the Criminal Court of Appeals, affirming said judgment, and further pleading the parole and revocation thereof above mentioned.

J. G. Duncan, although not designated as a respondent, filed a response setting out that the application of petitioner has been called to his attention in which charges against the integrity of the said Duncan are made, and asks leave to refute same. He alleges that he is superintendent of the state bureau of criminal identification and investigation, appointed by the Adjutant - General. He denies all the allegations of conspiracy, connivance, and fraud alleged by petitioner. He further alleges that petitioner has a record of criminality running back for a number of years, reciting various criminal acts of which he alleges the petitioner is guilty, and that, by reason of the same being brought to his knowledge, he recommended the revocation of the parole of petitioner. He asks leave to substantiate the same and to contradict the allegation by petitioner against said respondents.

Parker La Moore, although not named as a respondent, has filed a response in the nature of an interplea, praying that, on account of the charges made in the petition against his integrity and private and public character, he be granted leave to defend against such charges. He alleges that he is private secretary of M. E. Trapp, acting Governor. He pleads further the record under which the petitioner is incarcerated, and pleads that the revocation of the parole was for good and sufficient reasons. He denies in its entirety all charges and allegations of misconduct charged against him, and asks that such charges be investigated by this court.

The allegation in the petition that the revocation of the parole was not the act of the chief executive gave a wide range to the evidence and1 the injection of matters which, without this allegation, would not have been admitted; but, under this allegation, and owing to the serious nature of the charges made in connection with this allegation, the evidence of both the petitioner and the respondent was permitted to be developed beyond the scope otherwise permissible.

The allegation that the revocation of the parole in question is not the act of the acting Governor, and was unwittingly made, is met by the flat contradiction of the acting Governor, who testified that the order of revocation was made advisedly, after due consideration, and for reasons by him deemed sufficient.

This evidence disposes of the allegation that the parole was unwittingly issued, and renders immaterial to the legal question before us all the evidence directed against J. G. Duncan and Parker La Moore, and renders immaterial their testimony in refutation of such evidence, and we do not give it any further consideration.

These collateral and extraneous matters out of the case, the contention of the petitioner is that the instrument designated a parole is a conditional pardon, and that the chief executive is without power to revoke the grant except after notice and hearing and proof that pe-titio'ner has violated the conditions of said grant of clemency. The question for determination, then, is: Did the acting Governor have the power, without notice and hearing, to revoke the grant of clemency to Tom Collins, and to order his arrest and return to the penitentiary to serve the term imposed by the district court of Tulsa county.

From the pleadings and record it appears that, on February 16, 1920, after trial before a jury, the petitioner, in the district court of Tulsa county, was sentenced to a term of 8 years in the state penitentiary for larceny of an automobile. From said judgment and sentence he appealed to this court, and the sentence modified by reducing the punishment to a term of 5 years, and, as so modified, was affirmed and mandate issued on September 20, 1923. On the 27th day of September, 1923, the petitioner, by the then Governor J. C. Walton, was granted a reprieve for a period of 90 days. On the 13th day of October, 1923, he was granted a parole by the said Governor, a part of which is as follows:

“Now, therefore, I, J. C. Walton, Governor of the state of Oklahoma, by virtue of the power and authority vested in me by the Constitution and laws of the state of Oklahoma, do hereby grant unto the said Tom Collins a parole from said imprisonment upon the following terms and conditions, to-wit:
“First. That the said Tom Collins shall abstain from the use or handling of intoxicating liquors in any form; that he shall not gamble nor in any manner indulge in or conduct a game of chance; that he shall not carry firearms or other dangerous or deadly weapons under any circumstances; that he shall faithfully and industriously follow some useful and lawful occupation, and aid and support those dependent upon him; that he shall avoid all evil associations, improper places of amusement, 'all pool and billard halls, obey all the laws, and in all ways conduct himself as an upright citizen. * * *
“Third. It is expressly understood by the said Tom Collins that the Governor may revoke this parole for violation of any one or more of the conditions hereof, or for any other cause by him deemed sufficient.
“Fourth. That, in the event this parole shall be revoked at any time and the said Tom Collins shall be out of the state of Oklahoma at the time of revocation of same, he waives all the rights and privileges allowed him under the Constitution and laws of the United States, or the laws of any foreign state, and expressly agrees to return to the state of Oklahoma, without the aid of requisition.
“And whereas, the said Tom Collins agrees to accept and comply with the said conditions, I extend unto him this parole under the above terms. * * *
“J. C. Walton,
“Governor of the State of Oklahoma.”
“I, Tom Collins, hereby declare that I have carefully read and do fully understand the contents and conditions of the above parole agreement and hereby accept the same and pledge myself honestly to> comply with the said terms.
“Dated at Tulsa, Oklahoma, on this the Í6th day of October, 1923. Tom Collins.”

On the 9th day of February, 1923, J. C. Walton, Governor of Oklahoma, having been impeached, and the duties of Governor having devolved on M. E. Trapp, Lieutenant Governor, an order revoking said parole was made in part as follows:

“Whereas, investigation by the bureau of investigation, made by Dr. J. G. Duncan and Charles McCloud, reveals that the said Tom Collins has been selling liquor and engaging in other illegal pursuits at Slick City, Oklahoma; and
“Whereas, Hon. John M. Goldsberry, county attorney of Tulsa county, Oklahoma, makes the following report to the Governor: ‘At the recent special January, 1924, term of the United States District Court for the Eastern District of Oklahoma, at Tulsa, Tom Collins was indicted by the grand jury for violation of the federal Interstate Automobile Larceny Act’:
“Now, therefore, I, M. E. Trapp, Governor of the state of Oklahoma, by virtue of the power and authority vested in me by law, do hereby revoke, cancel, and annul the parole heretofore granted the said Tom Collins, and do order and direct all sheriffs and other peace officers of the state of Oklahoma to apprehend him wherever he may be found, take him into safe custody, and convey him to the Oklahoma State Penitentiary, at McAlester, where he will serve out his sentence according to the original judgment of the court. * * * ”

The petitioner was thereupon apprehended, conveyed to and confined in the state penitentiary at McAlester, which confinement petitioner now challenges as illegal.

Touching the power of the chief executive to revoke a parole without notice and hearing, there are two lines of authorities — one line holding that notice and hearing is necessary in order to revoke a pardon or parole. Illustrative cases on this line are Ex parte Alvarez, 50 Fla. 24, 39 So. 481, 111 Am. St. Rep. 102, 7 Ann. Cas. 88; Ex parte Rice, 72 Tex. Cr. R. 587, 162 S. W. 901; State ex rel., etc., v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582; In re Dumford, 7 Kan. App. 89, 53 P. 93.

The other line, holding that, where a convict is granted and accepts a parole, or even in some instances a conditional pardon, upon a breach of the conditions of such parole or conditional pardon, the same may be revoked by executive order, and the convict summarily committed to the penitentiary to' serve the remainder of his sentence. Illustrative cases from numerous authorities supporting this line are as follows:

Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L. R. A. 502, 82 Am. St. Rep. 1, where it is said:

“ * * * The executive clemency under it is extended upon the conditions named in it, and he accepts it upon those conditions. One of these is that the Governor may withdraw his grace in a certain contingency, and another is that the Governor shall himself determine when that contingency has arisen. It is as if the convict, with full competency to bind himself in the premises, had expressly contracted and agreed that, whenever the Governor should conclude that he had violated the conditions of his parole, an executive order for his arrest and remandment to prison should be at once issued, and be conclusive upon him. * * * ”

Spencer v. Kees, 47 Wash. 276, 91 P. 963, where the court reasons as follows:

“ * * * This was a conditional pardon, such as the Governor had power to impose. He granted it as a matter of grace, and not of duty. He did not intend to completely exonerate the appellant or to release him from the force and effect of the sentence, but expressly provided that a failure to comply with-the conditions ‘shall cause the revocation of this pardon and the recommitment of the said Edward Spencer to the penitentiary to serve out the remainder of his term according to the sentence.’ This language manifests a plain intention on the part of the Governor to himself maintain control over the pardon and to revoke the same upon failure of the conditions. If the provision that the Governor may issue his warrant to carry the pardon into effect refers only to the release of the convict, as contended by the appellant, then the control of a conditional pardon passes from the Governor immediately upon release of the prisoner. We think such result was not intended by the language used. This result, of course, follows from unconditional pardons, because in such case the release is conclusive. There is no more to be done. But in case of a conditional pardon the enforcement of the conditions is carrying the pardon into effect, as much so as the release. We are therefore of the opinion that the Governor had power to enforce the performance of the conditions, and, when he became, satisfied that the conditions of the pardon were being violated, he was authorized to issue his warrant revoking the pardon under the express terms of the pardon and under the statute. * * * ”

Owen v. Smith, 89 Neb. 596, 131 N. W. 914, in which the court used this language:

“The only question to be considered is whether the Governor, after having granted a parole to a convict, may, without notice and hearing, revoke such parole and order the convict to be apprehended and reimprisoned for the remainder of his term of imprisonment. Appellant cites some authorities from other states which at first blush seem to sustain his contention; but an examination of those cases discloses the fact that they are based upon statutes essentially different from ours. As opposed to the cases cited by appellant, the Attorney General has cited authorities based upon statutes similar to ours, which amply sustain the action of the Governor. We do not deem it necessary to consider any of these cases, for the reason that we think the judgment of the district court must be affirmed under the very terms of the parole itself, and of section 570 of the Criminal Code, under which the Governor acted. The parole issued by Governor Shallenberger, after setting out certain conditions to be observed by the convict while at liberty, concludes thus: ‘(6) He shall, while on parole, remain in the legal custody and under the control of the Governor of the State of Nebraska. (7) He shall be liable to be retaken and again confined within the inclosure of the state penitentiary for any reason or reasons that shall be satisfactory to the Governor, and at his sole discretion, until he receives a copy of his final discharge through the warden.’ * * * Any other construction of the law would not be a kindness to the inmates of the penitentiary; for, if the Governor is given to understand that every time he grants a parole he thereby restores the convict to full citizenship to such an extent that he cannot revoke such parole except upon notice and a full hearing, he would be very loath to exercise the humane prerogative which the Code now confers upon him. We think the provisions of the Code were properly construed by the district court, Appellant was at all times, while on parole, in the legal custody of the Governor, and subject at any time, for any reason or reasons that should be satisfactory to the Governor, and at his sole discretion, to be reimprisoned. He accepted a parole containing the conditions prescribed by law and must abide by them. * * * 99

The Supreme Court of Oregon, in the case of In re Houghton, 49 Or. 232, 89 P. 801, 9 L. R. A. (N. S.) 737, 13 Ann. Cas. 1101, said:

“Some adjudications are cited as holding that a violation of a conditional pardon must be judicially determined, and that a convict cannot be rearrested or remanded to suffer his original sentence because of an, alleged nonperformance of the conditions upon a mere order of the Governor. Alvarez v. State, 50 Fla. 24, 39 So. 481, 111 Am. St. Rep. 102 (7 Ann. Cas. 88) ; State (ex rel. O’Connor) v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582; People v. Moore, 62 Mich. 496, 29 N. W. 80. But in neither of the cases referred to did the pardon provide that it might be revoked and the convict rearrested and remanded on order of the pardoning power for a violation of the condition. In the Alvarez Case, it is expressly stated that such a stipulation would be valid and enforceable in the manner provided, and it was so intimated in the Wolfer Case. * * * The prisoner accepted the pardon but violated its conditions. The Governor thereupon issued a warrant reciting the facts, and the prisoner was rearrested and re-confined in the penitentiary. He sought release by habeas corpus, but the court denied his application, holding that he was not entitled to a judicial determination of the fact of forfeiture and that the conditions were valid. The court said: Tt (the pardon) expressly provides that the Governor may by his warrant revoke it upon such showing of a violation of the conditions as he may deem sufficient. Upon this revocation the legal status of the petitioner must be regarded the same as it was before the pardon was granted. It must be remembered that the pardon was an act of grace. The petitioner had no right to demand it. It was founded on no right which he could enforce in any court. What he accepted was in the nature of a favor or gift. It was not such a contract as entitled him to have a judicial determination of forfeiture, in the face of his stipulation that the Governor might revoke it upon such showing as might be satisfactory to him.’ Arthur v. Craig, 48 Iowa 264, 30 Am. Rep. 395. * * * ”

See, also, Jamison v. Flanner, 116 Kan. 624, 228 P. 82, 35 A. L. R. 973, where the authorities are reviewed at some length.

In the case of Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L. R. A. 1915F, 548, in which a parole containing a condition substantially the same as paragraph No. 3' in the parole in this case, it was held:

“A convict was granted and accepted a parole which expressly provided that the Governor might revoke the same and remand the party to prison for a violation of the conditions, or ‘for any other reason by him deemed sufficient.’ Held, that the Governor may order the convict to be so remanded without notice to him, and without giving him an opportunity to be heard.”

A distinction is sought to be made between the conditions of the Horine parole, above mentioned, and the parole in this case. There is a difference in the wording, the conditions following a breach of the terms of the Horine parole being more fully expressed .than the parole in this case, but in legal significance there is no such distinction as changes the rule of law applicable.

The people of this state, in the Constitution, have granted to the chief executive the power to issue pardons and paroles. Section 10, of article 6 of the state Constitution is in part as follows:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. * * * ”

There being no limitation on the power of the Governor, he may grant an unconditional pardon which upon delivery to the offender completely exonerates him and releases him from the force and effect of the sentence, as was said in the case of Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L. R. A. (N. S.) 1036, a “pardon” is an act of grace and mercy bestowed by the state through its chief executive, upon offenders against its laws after conviction, and a full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender; it obliterates in legal contemplation the offense itself, and hence its effect is to make the offender a new man.

The power to grant pardons carries with it the power to grant a pardon upon conditions named, where the conditions are not illegal, immoral, or incapable of being performed. Said conditional pardon does not completely exonerate an offender or release him from the force and effect of the sentence except, upon a compliance with the conditions named and a failure to comply, such conditional pardon may be revoked and the recipient apprehended and returned to the penitentiary to serve the remainder of the sentence imposed upon him.

A parole as the term is used in criminal law may be defined as the release of the convict from imprisonment upon certain conditions to. be observed by him and his sentence thereby suspended during liberty thus granted. Ex parte Ridley, 3 Okla. Cr. 351, 106 P. 549, 26 L. R. A. (N. S.) 110; 29 Cyc. p. 1562, par. F.

The distinction between a conditional pardon and a parole is not wide. Both are grants of clemency. Both may be revoked. In the case of a conditional pardon, the convict is at liberty upon a condition, and in a case where the pardon does not become operative until the recipient has performed the condition, when the condition has been performed it becomes absolute, or where it •is conditioned that upon the transpiring of some event it becomes void, the convict is at liberty until the event transpires. In the case of a parole, the convict ¡has a mere suspension of sentence, and is still under constructive custody and supervision by the public authority.

The instrument upon which the petitioner is at large in this case is a parole and not a conditional pardon. By its terms petitioner is held in. constructive custody; certain rules of conduct are laid down. His association and occupation are limited, and he is required to report monthly to the sheriff of Tulsa county to give an account of his earnings and the amount applied to the support of his dependents. It is further specifically stipulated in said parole, as hereinbefore set out, that the Governor may revoke for violation of any of the conditions named or “for any other cause by him deemed sufficient.” It is further provided that, in case petitioner should be out of the state at the time of revocation, he waives all rights and privileges allowed him under the Constitution and laws of the United States or of any foreign state and expressly agrees to return without requisition; this condition clearly contemplating that it was the agreement and understanding that a revocation might be made without notice and hearing, and in the absence of the recipient.

We are clearly of the opinion that, when a parole is granted containing the conditions of the Collins parole, upon a violation of any of the conditions named, or for any other cause by the Governor deemed sufficient he has power, without notice and hearing, to revoke the parole and order the apprehension and confinement of the convict, and that the courts do not have the power to review the acts and discretion of the chief executive, though the legality of the confinement of a petitioner may be inquired into by habeas corpus, and if upon any such hearing it should appear that the person confined is not the convict charged or that the revocation of the parole is a forgery, or that the official attempting to revoke is without authority, he would be entitled to be released. But where there is no question of identity, and it is made to appear that the petitioner in such case is held upon a valid judgment and sentence, and that his parole has been revoked by the chief executive, his incarceration is legal.

As applied to the facts in this case, the petitioner was lawfully deprived of his liberty when he was convicted in the district court of Tulsa county for larceny of an automobile, he was subject to confinement upon the judgment and sentence in that case until his confinement was stayed by the parole extended to him. Upon the revocation of that parole he was a convict at large subject to summary arrest and imprisonment under the original sentence.

Counsel for petitioner further argue that, since the terms of the parole above quoted provided that the “Governor” may revoke the parole, that in no event could any official other than the real Governor of the state make an order of revocation, and that the order of revocation made being by the Lieutenant Governor, as acting Governor, it is invalid.

Sections 15 and 16, art. 6, of the Constitution, are as follows:

“Sec. 15. The Lieutenant Governor shall possess the same qualifications of eligibility for office as the Governor. He shall be president of the Senate, but shall have only a casting vote therein, and also in joint vote of both houses. If, during a vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die or be absent from the state, or become incapable of performing the duties of the office, the president, pro tempore, of the Senate, shall act as Governor until the vacancy be filled or the disability shall cease; and if the president, pro tempore, of the Senate, for any of the above enumerated causes, shall become incapable of performing the duties pertaining to the office of Governor, the Speaker of the House of Representatives shall act as Governor until the vacancy be filled or the disability shall cease. Further provisions for succession to the office of Governor shall be prescribed by law.
“Sec. 16. In case of impeachment of the Governor, or of his death, failure to qualify, resignation, removal from the state, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed.”

These sections of the Constitution have had consideration by this court in the following cases: Ex parte Crump, supra; Ex parte Hawkins, 10 Okla. Cr. 396, 136 P. 991; Ex parte Cullens, 11 Okla. Cr. 644, 150 P. 90.

The Crump Case involved the validity of a pardon granted by J. J. McAlester, Lieutenant Governor, during the absence from the state of Governor Cruce, and which, upon the return to the state the Governor attempted to revoke, and this court there said:

“* * * Impeachment of the Governor, his death, failure to qualify, or resignation, involves necessarily a vacancy in the office, and, if any one of said events occur, the right of the Lieutenant Governor to act is not onen to question or doubt; and if, during a vacancy in the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, or die, then the right of the president pro tempore of the Senate to act as Governor is unquestionable. * * * ”

The Hawkins Case, supra, rested upon a similar state of facts, but in that case it was shown that Governor Cruce was within the boundaries of the state when the parole was signed by the Lieutenant Governor, and he was therefore without power to act, and, in deciding the case, the court said:

“The office of Governor of Oklahoma was not created for the benefit of the man who temporarily holds this position. It is in no sense his private property; but it is alone for the people of Oklahoma, and must be confined to Oklahoma, and cannot be placed upon wheels and hauled all over the face of the universe. The Governor may go to other states, and travel in foreign countries, with all the military pomp and glory of the Commander in Chief of the Oklahoma Militia, as he pleases, without forfeiting his office, and may carry his title with him; but his powers as Governor become dormant the very moment he crosses the state line, and they revive again as soon as he returns and is within the borders of the state. During his absence, or inability to act, the Lieutenant Governor is vested with all of the powers of Governor. The business of the people requires that a Governor should always be in the state to approve bonds, honor requisitions, make appointments, quell riots, fill vacancies, and transact all other business which pertains to this office, without expense or delay to the people, or interruptions in the administration of justice. An emergency may arise at any moment requiring the presence of Governor within the state. The Constitution provides that there shall always be some one within the state clothed with power to perform the duties of chief executive. * * * ”

The Cullens Case, supra, reaffirms the holdings of the Crump Case.

It is our view of the law that the condition in the parole under consideration providing that the “Governor” may revoke the parole is not to be construed in a technical sense as applying to the individual then holding the office of Governor, or to a successor who' must in strict and technical sense be designated by the term “Governor,” but that, in the contemplation of the parties as expressed in the parole, and in contemplation of law, the parole might be revoked by any person legally discharging and exercising the functions of Governor, whether he be designated as Governor, Lieutenant Governor, acting Governor, or otherwise. It is the function of the office and not the official designation of the person exercising the function that determines the authority to revoke.

For the reasons assigned, the writ is denied, and the petitioner remanded to serve the sentence of the district court of Tulsa county.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY, P. J.,

text:
    SAM ELLISON v. STATE.
    No. A-4938.
    Opinion Filed Oct. 10. 1925.
    (239 Pac. 678.)
    Mathers & Coakley, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.,

Sam Ellison, plaintiff in error, defendant in the trial court, was convicted of having illegal possession of 45 gallons of whisky. By verdict of a jury, his punishment was fixed at imprisonment in the county jail for a period of 30 days and to pay a fine of $200.

A part of the information states that—

. “He (the said Sam Ellison) did then and there willfully and unlawfully have in his possession certain intoxicating liquor, to-wit, 45 gallons of whisky, with the willful and unlawful intent then and there to sell, barter, give away, and otherwise dispose of; contrary to the form of the statutes,” etc.

The defendant claims that this information did not state an offense, citing in support of his contention the case of Buffo v. State, 4 Okla. Cr. 516, 113 P. 233, wherein an almost identical information was held insufficient.

Subsequent to the decision in the Buffo Case, the statute commonly known as our “harmless error” statute (section 2822, C. O. S. 1921) became effective. Construing the information in the instant case in conformity with this statute, we hold that the information was sufficient to apprise the accused of the nature of the accusation which he was required to meet.

It is next contended that part of the evidence introduced by the state was procured by an illegal search and seizure.

The record shows that a deputy sheriff stated that he made the seizure under authority of a search warrant. When interrogated as to where the search warrant was, he replied: “I don’t know; Jess (probably another deputy) has it — the search warrant. I reckon he madq the return on it.” Upon such a showing the presumption is that the officers made the search with authority, and the burden was on the defendant to show that such was not the case.

The evidence is conclusive that the defendant- had a still and a large quantity of whisky on different parts of his premises; that, so soon as he saw the officers, he and his son attempted to conceal and destroy some of the liquor.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    HENRY WOFFORD v. STATE.
    No. A-5064.
    Opinion Filed Oct. 14, 1925.
    (239 Pac. 938.)
    T. H. Davidson, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon an indictment duly returned by a grand jury in the district court of Muskogee county, charging that in said county on January 14, 1928', Henry Wofford did “commit the crime of manufacturing intoxicating liquor,” and further charging that previously thereto said defendant was duly tried and convicted in the superior court of said county on an information charging the unlawful possession of intoxicating liquor, and on the 6th day of May, 1916, was sentenced to serve a term of 30 days in the county jail of Muskogee county and pay a fine of $50; “that the said Henry Wofford, having been duly convicted as aforesaid, did then and there on the 14th day of January, 1923, knowingly, willfully, unlawfully, and feloniously manufacture certain intoxicating liquor, to-wit, whisky.” He was tried and convicted and his punishment fixed at confinement for 30 days in the county jail and a fine of $50.

To reverse the judgment rendered on the verdict he appeals.

R. D. Jones, deputy sheriff, testified that he saw the defendant go into a house at 828 North Seventeenth street, in Muskogee; that he saw a number of negroes close tó and around the house; that he secured a search warrant for the premises and raided the place, and found 15 or 20 gallons of whisky and a still set up; that the defendant was not there when the house was searched; that he had not seen the defendant about the house except on that morning.

Robert Ward testified that he lived in a nearby house and that the place in question was supposed to be owned by one of the Woffords; that defendant, Henry Wofford, was a single man, and that he had not seen him going into the house in question or coming out of it.

W. M. Parthring testified that he lived at 630 North Seventeenth street, and knew the house that was raided, but did not know who lived there; that he saw the defendant or his brother passing by before the officers raided the place; that he saw a man by the name of Asbury Jones at this house, and saw him going into the house and coming out of it, and knew that said Jones stayed at this place; that he saw the defendant and said Asbury Jones talking back of the house once or twice.

At the close of the state’s evidence there was a motion by the defendant for a directed verdict on the ground that the evidence was insufficient to connect him with the alleged offense, which was overruled and exception allowed.

The defendant, as a witness in his own behalf, testified that the house raided belonged to his father, who lived across the street; that the place was rented to one Asbury Jones, whom he had not seen since the Thursday before the raid; that he did not go into the house the day of the raid, and that he had never manufactured any liquor; that he was in Okmulgee at the time of the raid.

Two other witnesses testified that they had lived, one across the street, and another in a nearby house, and that they had never seen the defendant around the place.

Of the various assignments of error after a careful examination of the record, we think it is only necessary to consider the one that the verdict of the jury is contrary to the evidence.

The testimony, taken as a whole, and the facts presented by the proof, seems to fall below that degree of certainty as evidence of the guilt of defendant required to support a verdict and judgment of conviction.

To find a verdict of guilty the jury were required to find that the facts and circumstances in evidence were sufficient to show beyond a reasonable doubt the defendant’s guilt. It is not sufficient that he may have committed the act, but it must be established that he did. Direct evidence is not always available to establish a defendant’s guilt, and resort is necessarily had to circumstances showing his guilt, but to be sufficient they must do more than create a mere suspicion that the party charged is guilty. Outside of a few suspicious circumstances no proof was offered tending to connect the defendant with the alleged offense.

We are of opinion that the defendant’s motion for a directed verdict should have been sustained.

It follows that the conviction, should be and it is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JAKE POPP v. STATE.
    No. A-5102.
    Opinion Filed Oct. 14, 1925.
    (239 Pac. 945.)
    Robt. E. Smith, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Garfield county, August 3, 1923, “one Jake Popp ¡did then and there unlawfully and willfully barter and sell certain spirituous, vinous, and intoxicating liquors, to-wit, about one quart of corn whisky, which whisky then and there contained more than one-half of 1 per cent, of alcohol and capable of being used as a beverage, to one George Reddick.”

On the trial, the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at a fine of $100 and confinement for 60 ¡days in the county jail. To reverse the judgment rendered on the verdict, he appeals.

The petition contains 11 assignments of error, all of which are argued in his brief.

This conviction was had on the testimony of G. W. Reddick, who testified that he was engaged in the auto salvage business down in the hollow on East Broadway, in the city of Enid; that he had known Jake Popp, defendant, about a year and a half; that he knew Sheriff Lincoln and Bee De Monbrun, federal officer; that on the 3d day of August, 1923, he took a car and left his shop with W. H. Eisberg and drove out to Jake Popp’s place, about seven miles southwest of Enid; that they found defendant at home and also saw a lady there; that Mr. Eis-berg asked defendant if he had any whisky, and defendant said “Yes, I always have it.” Mr. Eisberg told defendant that he wanted a gallon; that witness then asked defendant what it was worth, and defendant said $12, but he would let it go for $10, then witness took from his pocket a 10-dollar bill and gave it to defendant, they all walked out to the barn and there defendant took a 2-gallon jug with a gallon of whisky in it and carried it to witness’ car; that defendant then asked if he could ride back with them and witness told him he could, and they started back to the city; that he let defendant out near the courthouse square, and then drove to Mr. Eis-berg’s garage, there Mr. Eisberg took the jug in the car and poured a part of the whisky into a jug he had there. Witness took the jug with what was left. Mr. Eisberg said he needed some parts for his car and he drove to witness’ shop, there witness poured out what was left in the jug and it filled two pint bottles, these he carried to the sheriff’s office and the sheriff put labels on the bottles and marked “G. W. R.” and the date “August Ed.” He identified two bottles that bore such labels.

On cross-examination he stated that Mr. Eisberg was a threshing machine man and left as near as he remembers in September some time for Kansas; that he knew that the defendant had not been arrested until after Mr. Eisberg left for Kansas; that he did not give the whisky to Eisberg, that he just took it; that he had sold defendant a part of an automobile, which afterwards it appeared had been stolen, and somebody told him that they took Jake’s car from him by reason of finding the stolen part thereqn; that he had never made that right with the defendant because the defendant had never asked him to make it right; that he had a sheriff’s commission at the time and had told Sheriff Lincoln that he was going to buy the whisky from Jake Popp.

Sheriff Lincoln testified that S. E. Campbell, H. L. McKee, and Bee De Monbrun .were in the office when Reddick brought in two pint bottles of whisky, and the bottles were labeled at the time; that previously George Reddick told him that he was going to buy or attempt to buy liquor from Jake Popp.

Bee De Monbrun, federal prohibition agent, testified that he was present when George Reddick brought to the sheriff’s office two pint bottles; that he tasted the contents of one and it contained corn whisky.

S. E. Campbell testified that he was present when the bottles were labeled, that he had heard Reddick talk about what he was going to do and knew Reddick was going to buy liquor from Jake Popp, and knew that he was going to take some fellow along.

At the close of the state’s evidence there was a motion by defendant for a directed verdict, which was overruled.

As a witness in his own behalf, defendant testified that he resides about seven miles southwest of Enid with his wife and five children; that he is afflicted with tuberculosis; that George Reddick and Mr. Eisberg came to his place on Sunday morning, the 22d of July, and Mr. Eisberg came to the house and asked him if he could do his threshing and he told him he had just finished stacking and didn’t want it threshed at that time; that George Reddick stayed in the car, that is about all that was said; that he never sold any whisky or other intoxicants to either Reddick or Eisberg; that his father lives 12 miles east of Enid, and 22 miles from the farm occupied by defendant; that he with his family went to his father’s home on July 26th to help his father thresh and on July 29th he became overheated and was sick and unable to do any work until August 7th; that he remained at his father’s home from July 26th to August 7th, and was not at his own home during that time; that his sister-in-law and her children stayed at his home while he was absent; that his brother went to Kansas with Mr. Eisberg; that he has not spoken to the witness Reddick since Reddick sold him an automobile crank case which afterwards proved to have been stolen.

J. H. Schroeder testified that he lives near defendant’s father and recalled the time when the defendant was sick at his father’s home, the latter part of July and the first part of August, and saw him at his. father’s home several times covering a time from one to eight days.

Henry Herber testified that he had known defendant for many years and commenced to work for him in April, 1923, and continued to work for him until September; that he went with defendant to his father’s home on July 26th, to help his father thresh and stayed there until the 7th or 8th of August; that while working there the defendant was taken sick and remained there until he returned to his own home August 7th.

Mr. Lowery testified that he was the owner of the farm occupied by defendant, frequently visited the place and was there when defendant finished stacking his wheat, about the 21st day of July, was there shortly afterwards on several occasions and defendant was not at home.

The judgment of the trial court, overruling defendant’s demurrer to the information, was excepted to and is here assigned as error.

Counsel contends that the allegation, “certain spirituous, vinous, and intoxicating liquors,” together with the allegation “containing more than one-half of 1 per cent, of alcohol and capable of being used as a beverage” makes the information duplicitous. We think these allegations may be treated as mere redundance. It follows that the demurrer was properly overruled.

A motion for a new trial was filed on the ground that the verdict is contrary to the evidence, newly discovered evidence, and surprise which by ordinary diligence and prudence defendant could not anticipate and guard against, which motion was duly verified by defendant, and is supported by the affidavit of Bert Ather-ton, in substance, as follows:

That he was present in the courtroom and heard George Reddick testify that he purchased liquor from said defendant on August 3, 1923, and after looking up dates and checks affiant states that he finished threshing July 14, 1923, and thereafter he kept cattle in the pasture on the farm occupied by said defendant; that on July 28, 1923, he sold some lambs and he recalls that on this date and thereafter for 10 days he was compelled to water the cattle on said premises at Jake Popp’s well; that the well was in bad condition and it was his desire to have said defendant fix said well; that he went to the home of Jake Popp from day to day, trying to find said defendant; and said defendant and his family were not at home during said time; that from inquiry he learned that defendant was at his father’s place; that he lives only about half a mile from the residence of said defendant and was watching for his return and said defendant could not have been at his residence on August 3, 1923, without affiant’s knowledge; that he never gave this information to said defendant or anyone else until after the trial of said defendant; at which time he told defendant that he had heard Red-dick’s testimony and knew of his own knowledge that this transaction could not have happened as testified to by said Reddick.

Jake Popp, defendant, on oath, states that he had no knowledge before said trial that said Eisberg would figure in said cause; that he has made inquiry as to the time said Eisberg left the state and has been informed that he went to Kansas before August 3, 1923; that said Eisberg will testify that he was never present at the home of this defendant when said George Reddick bought liquor, and that no liquor was sold by defendant in his presence.

Affiant further states that he had no knowledge as to who called at his home during his absence, and he used every effort in talking to men whom he thought had been there, and unfortunately did not talk to Bert Atherton before said trial; that if he is granted a new trial in said cause the said Atherton will be present and testify as set forth in his affidavit.

Upon a review of the testimony and the undisputed facts and taking into account the ill will of the prosecuting witness by reason of his sale to defendant of a stolen crank case, and his voluntary statement on the witness stand that “he did not think that Eisberg, if present, would tell the truth about the sale, because he was a boozer,” also taking into account the fact that the sheriff and undersheriff were permitted to testify to previous conversations had with the prosecuting witness wherein he stated he was going to buy or attempt to buy whisky from the defendant, and that this was hearsay testimony, is not open to question, we are of opinion that upon the showing made of surprise and newly discovered evidence, the motion for a new trial should have been granted:

The judgment appealed from herein is therefore reversed, and a new trial awarded.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    W. C. GACHET v. STATE.
    No. A-5120.
    Opinion Filed Oct. 14, 1925.
    (239 Pac. 943.)
    J. Q. A. Harrod, W. C. Madison, and S. A. Byers, for plaintiff in error.

      George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction in the county court of Oklahoma county, December 17, 1923, in which defendant, W. C. Gachet, was found guilty of the offense of having unlawful possession of intoxicating liquor with intent to sell the same, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $200 and confinement for 90 days in the county jail.

The evidence shows that between 7 and 8 o’clock in the evening of November 2, 1923', defendant was driving a Ford coupe east on Grand avenue, Oklahoma City, and turned north into Walnut street, towards the viaduct over the Rock Island tracks; the car was running without any lights, and at the foot of the viaduct ran into the concrete wall on the east side; the officers found two gallons of corn whisky in the "car and a broken gallon bottle that had contained whisky.

W. M. Washington, police officer, testified that he was on that beat after dark and saw the car running without lights; that he blew his whistle to stop defendant to find out why he was running his car without lights; the defendant refused to recognize the whistle or stop the car, but kept on going towards the viaduct; when he reached the viaduct he ran into the concrete wall on the east side; that witness ran up to the car and noticed something running out the back end which smelled like corn whisky, and phoned a call to the police station for other officers to be sent to aid him in arresting the defendant.

J. B. Ryan, police captain, and F. J. Cissne, policeman, answered the call, and when they arrived on the scene they found two one-gallon jugs of corn whisky and a broken gallon jug, the contents of which had •spilled out on the ground. The defendant was arrested, and the whisky was turned over to the sheriff’s office, where it was labeled and kept by the sheriff for evidence in the case.

J. B. Ryan, captain of police, and F. J. Cissne, policeman, testified, in substance, to the same facts as did the witness Washington.

At the close of the state’s evidence, defendant moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled.

The defendant did not testify.

Several assignments of error are directed to the admission of testimony. We have carefully examined them, and find no error in the .rulings of the court in this regard. A discussion of them would not be of value as a precedent or as a guide in future cases. The evidence of the defendant’s guilt was conclusive and is undisputed. The trial was in all respects fair, and we are unable, after a careful examination, to find anything in the record to warrant us in interfering with the verdict and judgment of conviction.

The judgment appealed from is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    ART DAVIS et al. v. STATE.
    No. A-5154.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 940.)

      Roland & Robinson, for plaintiffs in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were convicted on an information charging that in Carter county, 'October 17, 1923, they did unlawfully manufacture certain intoxicating liquors, to-wit, corn whisky, and in accordance with the verdicts returned by the jury they were, each sentenced to pay a fine of $100 and to be confined in the county jail for 60 days. From the judgments rendered on the verdicts they appeal and assign as error that the verdicts of the jury were contrary to both the law and the evidence and are not sustained by sufficient evidence.

The state relied for this conviction upon the testimony of two witnesses.

John W. Ginn, deputy sheriff, testified that with Mr. Dunn he went northeast of Old Durwood between 1 and 2 o’clock in the afternoon on the 17th day of October to a point about a mile east of where the defendants Davis lived, and about half a mile from where the defendant Hughey lived. That they saw smoke on a branch coming from the place where the still was. When they were about 20 feet from the still the defendants Doss Davis and Wayne Hughey ran. That they called to them to stop. The defendant Art Davis stood at the still. That the still was in operation, and whisky was. running out of it.

Jesse Dunn, deputy sheriff, testified in substance to the same facts as did the witness Ginn, and further testified that when he arrested the three defendants they each stated that the still and whisky belonged to them.

On the part of the defense the testimony of several witnesses showed that there was a wolf hunt that forenoon on Wolf creek, in which a dozen, or more persons participated, including the defendants, and that a wolf was killed. The defendants, testifying, each stated that in returning from the wolf hunt to their homes they found this still, and were there but a few minutes before the officers appeared. They also denied that they had admitted ownership of the still or the whisky. This conflict in the evidence presented a question as to the credibility of the witnesses and the weight to be given to their testimony, and of this the jury were the sole judges. The other assignments of error are not sustained by the record, and need not therefore be noticed.

We are- unable, after a careful examination, to find anything in the record to create a doubt as to the correctness of the result, and, it appearing that the defendants had a fair trial, the judgments appealed from herein are affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    C. S. DUVALL v. FREEMAN, District Judge.
    No. A-5832.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 939.)
    John B. Ogden, for petitioner.
    The Attorney General, for respondent.
   BESSEY, P. J.

The petitioner stands charged in the district court of Carter county with the crime of embezzlement, and claims in this application that the judge of said court, the respondent herein, has arbitrarily refused the accused a speedy trial, as provided by law; and that said judge has refused to make and enter an order of dismissal of the embezzlement charge, under the provisions of section 2913, C. O. S. 1921, which provides that:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The petitioner asks for a peremptory writ of mandamus requiring the district judge of Carter county to dismiss the action against petitioner, under the provisions of the statute quoted

The application and the evidence attached thereto, filed in this court, do not show facts sufficient to authorize the issuance of the writ. The record in the embezzlement case is not before us. No showing is made of the time when the information was filed in the district court. By secondary evidence it appears that for a time the accused was, or may have been, a fugitive from justice; that he filed an application for a continuance at the April term of district court, but no showing is made as to what if any order was made thereupon; that over the protest of the petitioner an informal order of continuance was made two days after the petitioner’s motion for a continuance was filed.

Under such circumstances, in the absence of the record in the embezzlement case showing what was actually done, the showing made is insufficient.

The application for the writ is denied.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    Ex parte A. P. HICKMAN.
    No. A-5359.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 1118.)
    Sigler & Jackson, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

In the year 1921 the petitioner was sentenced to the state penitentiary for a term of one year and three months, said sentence based upon a judgment of conviction for an assault with intent to kill. The petitioner gave notice of appeal from this judgment to this court, and was thereupon given his liberty on a supersedeas bond, pending the appeal, which was never perfected. In December, 1924, petitioner surrendered to the sheriff of Carter county and instituted this action for a writ of habeas corpus, claiming that there was in fact no judgment of conviction in the trial court in ■1921, and that his incarceration in the jail was without authority of law. On presentation of this application in this court, a rule was issued to show cause why the writ should not issue, and a day fixed for final hearing. Upon the return day of the rule, no showing was made by either party, petitioner or respondent, and the hearing has since been many times postponed. On July 14, 1925, an appeal, or purported appeal, was filed here; said appeal being from an order made by the district court of Carter county, denying a motion to strike the judgment record from the files of the case originally tried, and denying a motion requesting the court to rule upon a motion for a new trial theretofore filed in said original action. This appeal, or purported appeal, is No. A-569'5, now pending in this court. From the record in case A-5695 and from the correspondence of the petitioner and the history of the case as disclosed by both records, it appears that there is no merit in the application for the writ of habeas corpus. The application for the writ is therefore denied, and it is ordered further that the petitioner be remanded to the custody of the sheriff of Carter county, to be held to abide the terms of the judgment of conviction rendered in the district court of said county on March 5, 1921. A duly attested copy of this opinion shall constitute authority for the sheriff to arrest the petitioner, A. P. Hickman, and hold him in custody to satisfy the mandates of said judgment.


text:
    Ex parte LOREN BARTON et al.
    No. A-5532.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 944.)

      J. Bailey Allen, for petitioners.
    The Attorney General and .Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The petitioners at this time are each serving sentences of 5 years in the Oklahoma state reformatory at Granite for automobile larceny. '

In this application petitioners attack the jurisdiction of the district court of Woodward county to impose the sentences of conviction. The petitioners were each 18 years of age, and say that on the 27th day of August, 1924, an information was filed in the district court charging them with larceny; that on the same day they were taken before the district court, where they waived their right to counsel and entered their separate pleas of guilty to the charge. At this point the record shows the following:

“And now, the time having arrived for the court to announce judgment and sentence against the defendants, the court asks the defendants if they have any legal cause to show why judgment and sentence should not be pronounced against them.”

The defendants offered no objections, and judgment was thereupon pronounced; this being on the same day on which their pleas of guilty were received.

In this state a minor over the age of 16 years is presumed to be responsible for his criminal acts. The time of infancy is usually divided into three parts, during each of which a different presumption as to criminal responsibility prevails. Children under the age of 7 years are conclusively presumed to be incapable of committing crime; children over the age of 7 years and under the age of 16 years are presumed to be incapable of committing crime, except where it is affirmatively shown in a juvenile proceeding that the child knew or comprehended the wrongfulness of his act or acts. Over the age of 16 the infant is presumed to know the consequences and import of his criminal acts, and to be responsible therefor. In some cases this may be a rebut-table presumption, but the burden of proving incapacity during this period is on the infant defendant. State v. Di Guglielmo, 4 Pennewill, 336, 55 A. 350; State v. Kavanaugh, 3 Pennewill, 131, 53 A. 335.

It follows, therefore, that there is no difference in the mode of procedure in a criminal case against a defendant 18 years of age and a defendant who has reached his majority. An 18-year-old defendant may waive his right to counsel, may plead guilty, and may waive the statutory time to pronounce judgment. The record here ¡shows that these defendants did waive {the right to counsel, and did plead guilty. It has been held by this and other courts that, in the absence of a record to the contrary, a waiver of the time to pronounce judgment will be presumed. Jones v. Ter., 4 Okla. 45, 43 P. 1072. Williams v. State, 17 Okla. Cr. 452, 190 P. 892.

Courts in dealing with minors of the age of 18 years charged with a felony, where such minors appear without counsel, parent, or friend, should carefully guard their constitutional and statutory rights in all matters of procedure. Under such circumstances it would seem appropriate for the court to exercise the duties in the nature of a guardian for minor defendants in order that no injustice may inadvertently result. But a failure to so safeguard the rights of accused minors, while it might amount to reversible error on an appeal, will not be sufficient to deprive the trial court of its jurisdiction over such minors so as to give the accused a remedy by habeas corpus in this court.

To determine whether these petitioners have a right to relief by habeas corpus this court must first consider whether the court which rendered the judgment had jurisdiction of the subject-matter and of the persons, and whether during the course of the proceedings the trial court lost jurisdiction of either. Ex parte Hill, 12 Okla. Cr. 335, 156 P. 686; Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606.

We hold that a minor 18 years of age may waive his right to counsel, plead guilty, and be proceeded against subsequently as in other cases. Ex parte White, 50 Tex. Cr. R. 473, 98 S. W. 850; People v. Wandell, 21 Hun (N. Y.) 515. Here the trial court had jurisdiction of the person and the subject-matter, and there is no showing that such jurisdiction was- lost in the course of the proceedings.

The application for the writ is denied.

DOY'LE and EDWAEDS, JJ., concur.