text:
    BOB MASON v. STATE.
    No. A-9281.
    Nov. 12, 1937.
    (73 P. 2d 468.)

      J. G. Hughes, for plaintiff in error.
    Mac Q. Williamson, A tty. Gen., and Paul Y. Cunningham, County Atty., for the State.
   DOYLE, J.

The information in this case charged that in Kiowa county, on the 16th day of January, 1936, Bob Mason, Sr., did have in his possession 15 and one-fourth pints of whisky, with the unlawful intent to sell the same. 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 in the county jail for 60 days. Motion for new trial was duly filed, presented, and overruled.

To reverse the judgment rendered on the verdict appellant assigns as error the overruling of his motion to suppress evidence; the admission of evidence obtained by an unlawful search of his home; and that the verdict is contrary to the law and the evidence.

The evidence shows that Tom Howard, sheriff, accompanied by three deputy sheriffs and a constable, went to the colored town section of the city of Hobart to serve several search warrants, among which was one for the premises known as the Bob Mason Cafe, which was served by Deputy Ed Connor. Adjacent to the cafe building is the residence of defendant, which was being searched at the time by other officers.

This conviction rests npon .the testimony of Tom Howard, sheriff, and Ed Connor, deputy sheriff, and upon evidence procured by search and seizure in executing a search warrant.

Ed Connor testified that he had what is known as a “John Doe” search warrant when he entered the cafe building, which consisted of a big room in the front part, facing west, with a room in the southeast corner, used as a kitchen, and a bedroom in the northeast corner, with a hallway between; that he went into the cafe building through the kitchen, there found a colored woman ironing, then passed through the hallway to the bedroom, there found a trunk, turned it up on end, heard bottles rattling, and saw whisky seeping out; then he called sheriff Howard; they opened the trunk and found 10 full pints and five half pints of whisky and two broken pints. The same was produced and introduced in evidence. He further testified that when he was talking to the colored woman, defendant’s wife was in the kitchen and took a pint bottle, two-thirds full of whisky, out of her bosom and set it in the cupboard; then she saw him; that he walked over and seized the bottle. He identified the bottle, and over the defendant’s objections it was received in evidence.

Tom Howard, sheriff, testified that Ed Connor called him into the northeast room and asked what he reckoned was in the trunk; he tilted it and some whisky ran out; that he sent Tom Overstreet after defendant and when he came in asked him if he had a key to the trunk and defendant said he did not, and said the trunk belonged to a man in Texas; that they opened the trunk and found the whisky introduced in evidence as “State’s Exhibit A.”

As a witness in his own behalf, Bob Mason Sr., testified that officers searched his home; they then took him to the cafe building; that it had been two or three years since he had operated a cafe in the building; that his family used the southeast room as a kitchen; that Willie Leonard and his wife had been living in the northeast room since 1931; that there were two trunks in that room, one locked and the other unlocked; that the sheriff asked him for the trunk key and he told him he did not have any key; that the trunk belonged to Louis Coleman, of Pampa, Tex.; that Willie Leonard and his wife used the southeast room to cook and eat in; that both families used that room jointly.

At the close of the state’s evidence, and again at the close of all the evidence, the defendant moved for a directed verdict of not guilty “for the reason that the evidence introduced has been shown to have been procured by means of an illegal search and seizure in violation of the constitutional and statutory rights of the defendant, and for the further reason the evidence is insufficient to connect this defendant with the commission of the crime charged,” which motions were overruled. Exceptions allowed.

When the case was called for trial, counsel for defendant filed a motion to suppress the evidence, because the same was obtained by means of an illegal search and seizure, made in violation of the constitutional and statutory rights of the defendant. Thereupon it was stipulated and agreed that the compaint for the search warrant, and. the search warrant itself which was served upon Mrs. Willie Leonard, when the search was made and the whisky seized was obtained, also that the return of the officer thereon, may be admitted and considered in evidence, and that:

“It is stipulated and agreed herein that the records in the office of the county clerk of this county show that the property described in the search warrant and complaint is not in Wilhelm’s Addition, as so stated in said complaint, bnt it is> Lamb’s Railroad addition to the city of Hobart, Kiowa county, Oklahoma, and always has been.”

The search warrant describes the place to be searched as follows:

“That the premises of said John Doe, and private residence is described as follows, to wit: The same being known as the Bob Mason Cafe, and being immediately west of the residence of Bob Mason, Sr., the said residence being the first house on the west side of G-rant Street going south, and being approximately 75 feet south of the intersection of Grant street and Fifth street of the city of Hobart, and being situated in what is known as Colored Town in Wilhelm’s addition to the city of Hobart, the said house being a one story frame structure.” •

In support of his motion the defendant testified substantially as follows: That he has lived in Lamb’s Railroad addition to the city of Hobart about 27 years; had never lived in Wilhelm’s addition; that the Bob Mason Cafe building, immediately west of the defendant’s residence, is not the first house on the west side of Grant street, going south from Fifth street intersection; that the first house south of the intersection is Charley Hill’s house; that the Bob Mason Cafe building is immediately west of the house he lives in, and the southeast corner room is used by his family to cook and eat in there; that Willie Leonard and his wife have lived in the northeast corner room since 1931; that the officers searched the house he lives in, then took him into the cafe building and. asked for the key to a trunk there in Willie Leonard’s room, and he told them he didn’t have the key; Willie Leonard’s wife was there; that for more than two* years last past the building had not been used as a cafe; that he did not own the trunk or anything about it; that he was only occupying the kitchen part of the premises.

On cross-examination he was asked:

“Q. You mean you were living in a part of the premises? A. No, sir. Q. You were not using it as any place of residence were you? A. No, sir. By the Court: I don’t think the defendant can raise that question at this time, in regard to the property occupied by Leonard, for the reason the guarantee under the Constitution is personal, and the question of the validity of the search warrant cannot be raised by a third party, the property being occupied by Leonard and not under the control of the defendant.”

Exception allowed.

There was no testimony offered on the part of the state.

It is undisputed that at the time of the search of the premises in question, the defendant and his wife occupied the southeast corner room of the building as a kitchen, which was searched by Officer Connor and a pint bottle two-thirds full of whisky was there found and seized. The northeast comer room, occupied by Leonard and his wife, was then searched, where the trunk with whisky in it was found.

The stipulation and undisputed evidence is that the place described in the complaint for the search warrant and without naming the owner or occupant does not describe the place or premises searched.

It is elementary that a complaint for a search warrant must particularly describe the place to be searched for intoxicating liquor. The statute provides that the warrant shall command a search of the premises described and designated in such complaint and warrant. Section 2635, St. 1931 (37 Okla. St. Ann. § 84).

It is the general rule that laws authorizing invasion of private premises and the sanctity of the home by search and seizure proceedings are to be strictly construed. Mayberry v. State, 62 Okla. Cr. 183, 70 P. 2d 1106.

The complaint in this case does not name the owner, nor does it name any person occupying the place described.

In Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145, this court held that the name of owner or occupant of premises to be searched, if known, is one of the essentials to a particular description of the premises in complaint and search warrant.

It has been repeatedly decided by this court that warrant for search of a private residence occupied by several people, issued upon complaint or affidavit which fails to name owner or any occupants of the residence, was void, search thereunder was unreasonable, and liquor obtained in search was inadmissible in prosecution for unlawful possession of intoxicating liquor. Wiese v. State, 32 Okla. Cr. 203, 240 Pac. 1075; Myer v. State, 34 Okla. Cr. 421, 246 Pac. 1105; Houchin v. State, 58 Okla. Cr. 329, 52 P. 2d 1085; Clanton v. State, 59 Okla. Cr. 365, 60 P. 2d 415; Mason v. State, 60 Okla. Cr. 392, 64 P. 2d 1238.

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

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

It follows from what has been said that the search and seizure in this case was an unlawful trespass, and that the evidence procured thereby inadmissible was improperly admitted over appellant’s objections in violation of his constitutional and statutory rights.

For the reasons stated, the judgment of the lower court is reversed, with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: DAYENPOET, P. J.

license: Public Domain

text:
    B. E. DAVIS v. STATE.
    No. A-9285.
    Nov. 12, 1937.
    (73 P. 2d 489.)

      David Taut, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAYENPOET, P. J.

The defendant, B. E. Davis, was by information jointly charged with A. F. Wolfe, alias Sims, with the crime of obtaining money under false pretense; was tried separately, convicted, and sentenced to imprisonment in the state penitentiary for a period of three years and a fine of $5,000. Motion for new trial was filed, considered, overruled, and defendant reserved an exception. From the judgment of the trial court the defendant lodged in this court what is designated and styled “case-made.”

Section 3198, O. S. 1931 (22 Okla. St. Ann. § 1060), is as follows:

“Instead of the appeal hereinbefore provided for any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in ‘Procedure, Civil,’ and the summons in error shall be served upon the Attorney-General, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.”

It is disclosed by the record that the defendant made no effort to appeal under the first provision of the statute providing for an appeal by petition in error with case-made attached. There is no signature of the judge attached to the purported record before this court, nor is there any certificate of the clerb. The record which purports to be the case-made fails to show it was ever filed in the office of the clerk of the district court of Kay county, Okla., where the defendant was tried, as provided by section 3197, O. S. 1931 (22 Okla. St. Ann. § 1059).

This case was filed in this court on March 25, 1937; no brief has been filed by the plaintiff in error. The case was regularly assigned for hearing on September 28, 1937, at which time no one appeared to argue the case for plaintiff in error, and the case was submitted on the record. Since the submission of the case on the record no further action has been taken by the plaintiff in error, and no reason shown why a brief was not filed.

The purported record in this case cannot be treated as an appeal by transcript, for the reason that the same is not certified as required by law when an appeal is taken by filing a petition in error with transcript of the record attached in this court. Mathis v. State, 18 Okla. Cr. 199, 194 Pac. 278.

For the reason therefore that the record fails to show1 an appeal by case-made or by a duly certified transcript of the record attached to the petition in error, this appeal must be dismissed. Appeal ordered dismissed.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J.

text:
    E. C. SMART v. STATE.
    No. A-9286.
    Nov. 12, 1937.
    (73 P. 2d 488.)

      Billingsley & Kennerly, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The appeal in this instance is taken by defendant from a judgment of the county court of Seminole county, rendered in accordance with the verdict of the jury, finding him guilty of unlawful possession of intoxicating liquor and fixing his punishment at a fine of $50 and 30 days in the county jail.

The specific charge was that in said county on June 29, 1935, he did have in his possession 29 pints of whisky and six pints of gin, with the unlaAvful intent to sell the same.

The overruling of his motion to suppress evidence is assigned as error.

When the case was called for trial, counsel for the defendant filed a motion to suppress evidence on the ground that the evidence which the state relies on for conviction was obtained on an unlawful search warrant, and illegal search, in violation of the constitutional rights of this defendant.

In support of Ms motion defendant testified substantially as follows:

That on June 29, 1935, the officers searched the house occupied by him and his wife as their home. Asked: “How would you go in order to get to where you lived, Mr. Smart?” He answered: “You go out here to the south end of Wewoka avenue, and go east to the section line there at the corner, turn south and go about a mile and a half, I guess it is, and then gu east about 600 feet, the third house on the south side of the road is where we lived; there is a tool house where you turn off, the sign on it is, ‘Eureka Tool Company.’ ”

The search warrant, in addition to designating the defendant by name, described the place as follows:

“Upon the following described premises, located as follows: From the south end of Wewoka St., Wewoka, Okla. one mile east, then south approximately one and one half mile to old Eureka Tool house, then east two hundred feet, third house on south side of road in Seminole county, Oklahoma.”

There was no testimony offered on the part of the state.

Under the constitutional (article 2, § 30) and statutory (St. 1931, § 2635 [37 Okla. St. Ann. § 84]) provisions, this court has repeatedly held that the complaint or affidavit must particularly describe the place to- be searched, so that it can be ascertained from an examination of the warrant, and with such reasonable particularity that no discretion as to the place to be searched is left to the searching officer. Bryson v. State, 59 Okla. Cr. 130, 56 P. 2d 1198; Shanks v. State, 59 Okla. Cr. 211, 56 P. 2d 1199; Clanton v. State, 59 Okla. Cr. 365, 60 P. 2d 415; Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145; Mayberry v. State 62 Okla. Cr. 183, 70 P. 2d 1106.

In our opinion tbe requirement of the Constitution and the statute was substantially met in the complaint and search warrant in this case.

It follows that the trial court did not commit error in overruling defendant’s motion to suppress evidence.

The undisputed proof is that the officers in searching the defendant’s house found 29 pints of whisky and six pints of gin in a clothes closet. The defendant did not testify, and no witness was called to testify in his behalf.

It is obvious that the casé was one for the consideration of the jury and we are unable, after careful examination, to find anything in the record to create a doubt as to the correctness of the result, or to warrant us in interfering with the verdict.

It appearing that the defendant had a fair and impartial trial, the judgment of the lower court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    GEO. MAY v. STATE.
    No. A-9302.
    Nov. 12, 1937.
    (73 P. 2d 875.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, for convenience hereinafter referred to as the defendant, was by information charged with the crime of possession of intoxicating liquor; was tried, convicted, and sentenced to serve a term of 60 days in the county jail of Tillman county, Okla., and to pay a fine of $150, and cost. Motion for a new trial was filed, considered, overruled, exceptions saved, and defendant has appealed.

The state has filed a motion to strike the case-made. No response has been filed to the motion of the state to strike the case-made. The judgment in his case was rendered on December 12,1936; at the time the court allowed defendant 40 days to malee and serve case-made; on the 13th day of January, 1937, the court granted a further extension of time of 30 days from the said 13th day of January, 1937, which 30 days expired on February 12, 1937. The case-made was not made or served within said time, nor was any further order entered until February 13. 1937.

In the motion to strike the case-made the state further alleges that an order of the court made on February 13, 1937, was void, and the case-made served on March 16, 1937, was a nullity. The allowance of time to make and serve case-made expired February 12, 1937 (section 22, O. S. 1931 [12 Okla. St. Ann. § 73]; Hawkins v. State, 5 Okla. Cr. 276, 114 Pac. 356), without the case-made having been served and without an order of extension having been made. On February 13, 1937, the 3.1st day, an order of extension was made. No attempt was made to comply with the provisions of the latter part of section 538, O. S. 1931 (12 Okla. St. Ann. § 962), where in case of accident or misfortune which could not reasonably be avoided by the party appealing, the court or judge may make an order extending the time after expiration of the date fixed in the previous order. Unless this provision of the law is complied with, any order made after the expiration of the original time allowed is a. nullity, and the case-made served under the authority of such an invalid order will not give this court jurisdiction. The purported case-made does not show to have been filed in the court below. The motion to strike case-made is well taken.

It is, of course, clear that if the order of extension be made one day after the time originally allowed, it may be made any number of days after the time fixed by law for taking an appeal. Under our statute an appeal to the Criminal Court of Appeals may be taken by the defendant as a matter of right from any judgment rendered against him, but the manner or time in perfecting such an appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by the statute. A case-made not having been served within the time originally allowed, nor within the time fixed in any valid extension of time, was served too late. Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787.

The attempted appeal is dismissed.

DOYLE and BAREFOOT, JJ., concur.


text:
    EMMITT LONG v. STATE.
    No. A-9330.
    Nov. 12, 1937.
    (73 P. 2d 491.)
    Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

Emmitt Long was convicted in the district conrt of Jackson county of the crime of transporting 24 gallons of whisky and six gallons of gin from a certain point in Jackson county to another point in the city of Altus, said county, second offense, having previously been convicted in the county court of Tillman county of the crime of transporting intoxicating liquor and sentenced1 to serve a term of 30 days in the county jail and to pay a fine of $50. The jury fixed his punishment at confinement in the county jail for 30 days and a fine of $200. On November 12, 1936, an appeal bond Avas filed and approved by the clerk of said district court.

An appeal from the judgment rendered on the verdict was attempted to be taken by filing in this court a petition in error with what purports to be transcript of the record and case-made attached.

The Attorney General on October 21, 1937, filed a motion to dismiss the appeal herein, on grounds as follows:

“1. The purported case-made and record was not certified by the court clerk of Jackson county.
“2. Said purported record and case-made was not signed and settled by the trial judge.
“3. Said purported record and case-made was not filed in the office of the court clerk of said county.
“For the reasons above stated said purported record; and ease-made is a nullity and said appeal should be dismissed. Lyde v. State, 17 Okla. Cr. 365, 187 Pac. 252; Watt v. State, 16 Okla. Cr. 352, 183 Pac. 512; Shawler v. State, 5 Okla. Cr. 667, 115 Pac. 604; Duval v. State, 6 Okla. Cr. 605, 115 Pac. 1024; Cook v. State, 3 Okla. Cr. 426, 106 Pac. 558.
“The record shows that the defendant was sentenced on November 12, 1936, at which time defendant Avas granted 60 days extension of time in wbicb to make and! serve case-made. He subsequently secured two extensions of 60 days each mailing a total of 180 days though the record is a short one, only requiring 80 pages. The last order of extension was filed three days after the expiration of the time previously granted though dated as of the last day. The purported record was filed in this court on May 11, 1937, just one day before the expiration of the six months period. No brief was filed until more than five months later and was then served upon the county attorney instead of the Attorney General.”

No response to the motion to dismiss has been filed.

An appeal to this court may be taken by the defendant as a matter of right from any judgment rendered against him; but the manner of taking and perfecting such appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by law. Section 3189, St. 1931 (22 Okla. St. Ann. § 1051).

The statute authorizes two methods by which an appeal may be taken to' this court: First, after due notices by filing in this court a case-made with a petition in error attached. Section 3193 (22 Okla. St. Ann. § 1055). Second, by filing a transcript of the record duly certified, with the petition in error attached. Sections 3197, 3198 (22 Okla. St. Ann. §§ 1059, 1060).

Section 3197, Procedure Criminal (22 Okla. St. Ann. § 1059), provides:

“In all criminal cases appealable to the Criminal Court of Appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a case-made in all respects as in civil cases, and the case-made so settled, served and filed in the trial court may be sent to' the appellate court in lieu of all other records or bills of exception; or the proceeding, in the appellate court may be as provided in the next section.”

An examination of the record shows that the motion of the Attorney General to dismiss is well taken.

The purported case-made filed in this case discloses that the trial judge did not settle, sign, or certify the same, and the same was not filed in the court below.

In Watt v. State, 16 Okla. Cr. 352, 183 Pac. 512, this court held that:

“A purported case-made, not signed and certified by the trial judge within the time limited by the statute for filing it in this court, is a nullity.”

It also appears there is no certificate of the clerk of the court to a transcript of the record.

In Altizer v. State, 59 Okla. Cr. 456, 6 P. 2d 812, we said an appeal to this court by filing transcript of record! with petition in error attached will be dismissed if transcript of the record is not properly certified by the clerk of the court.

Upon the record before us, and for the reasons stated, we are of the opinion that this court has never acquired jurisdiction of this appeal.

It follows that this court is without jurisdiction to consider this attempted appeal, either as upon a case-made or a transcript of the record.

The attempted appeal in this case is therefore dismissed, and the cause remanded to the district court of Jackson county, with direction to enforce the judgment and sentence.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    OSCAR PHILLIPS v. STATE.
    No. A-9315.
    Nov. 19, 1937.
    (73 P. 2d 879.)
    Hatcher & Bond, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and :Sam H. Lattb more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The information charged Oscar Phillips, the defendant in the trial court, with the crime of forging a check for $6.50, by using the signature on the check of D. D. Walker. He was tried, convicted, and sentenced to serve a year in the state penitentiary. The record was properly preserved, and the defendant appeals.

In substance the testimony for the state is: E. E. Wegener stated: “I live at Mineo, Okla.; am engaged in the grain and hatchery business; I saw the defendant in this case in the month of April, 1986, at which time he ordered a hundred baby chicks, and gave his name as R. J. Sims.” The witness Wegener introduced his record showing the order for the 100 chicks in the name of R. J. Sims. The witness further testified after the defendant was placed in the G-rady county jail:

“I came down and identified him as the man who ordered the baby chicks from me, after which I marked; the order, No Sale.’ On the 15th of April, 1936, the defendant returned to my place of business and gave me the check involved in this case for a sack of bran and took the difference, between the value of the bran and the face of the check in cash. Oscar Phillips, the defendant here, is the person who' ordered the baby chicks, and who later purchased the bran with the check purported to be signed by D. D. Walker.”

On cross-examination the following questions were propounded to the witness, and he gave the following answers:

“Q. Mr. Wegener, did this man Oscar Phillips, the defendant, endorse this check in your presence? A. I think he did; yes, sir, I think he did. Q. What is your usual custom as to requiring' endorsements on checks? Mr. Hatcher: That is objected to as improper, irrelevant, and immaterial. The Court: Sustained. Mr. Hatcher: Comes now the defendant and moves that the testimony about thinking this man endorsed the check be stricken from the record. The Court: Oh, yes, of course, what he thinks is not competent. What he thinks is not competent evidence. Q. What is your judgment about it? Mr. Hatcher: We object to him giving his judgment. The Court: Overruled as to what his best judgment is. Q. Now you say, first you testified a while ago that you think and now you testify that it is your best judgment, * * * A. Yes, sir. Q. That he endorsed the check on the scales? A. Yes, sir. Q. And yet you were right there, were you not? A. Yes, sir. Q. And you have come down here today to try this man, as the main prosecuting witness, on the proposition that he endorsed the check, have you not? A. Not on the endorsement of that check. Q. That is what you are trying to testify to? A. I am testifying that to the best of my judgment he endorsed it on my scales. Q. And you expect this jury to believe that testimony that you are giving that he endorsed it? A. I am pretty sure he did. Q. You are pretty sure? A. Yes, sir. Q. You don’t want the jury to believe you saw that man endorse it, do you? A. Yes, sir. Q. That is what you want them to believe? Then why don’t you testify to it? A. To the best of my judgment I saw him do it.”

Wegener further stated when the defendant placed the order for the baby chicks he gave his name as R. J. Sims. “The check was turned down by the Tuttle Bank, and I went over and took it up; the next time I saw the defendant after he passed the check was here in jail.”

D. D. Walker, testifying for the state, stated:

“I have resided at Tuttle for more than eleven years; during the month of April, 1936, 1 carried an account with the Bank of Tuttle; have carried an account with the bank for about 11 years; me and my wife are the only ones authorized to draw on that account; I did not authorize anyone to draw the check on the bank that is involved in this case; I have never written a check to anyone by the name of R. J. Sims. The check was written without my consent.”

•Mrs. D. D. Walker, testifying for the state, stated, she and her husband both drew on their account. The check was presented to her and she examined it and stated it was not her signature; she had never written a check for anyone named R. J. Sims, and signed it on her husband’s account.

“When I drew a check I signed it D. D. Walker. The signature on this check is not my signature. I know the defendant, Oscar Phillips, have known him for about four years, he worked for my husband a short while a year ago last fall; I do not know whether he paid him by check or cash.”

D. D. Walker was called for further examination and stated the defendant worked for him one time for a day or two.

“I usually pay all my bills by check, I seldom pay cash; I don’t know whether I paid the defendant for his work in cash or with a check.”

Floyd Kimball, testifying for the state, stated:

“I am engaged in the banking business in Tuttle, Okla.; I am cashier of the bank; D. D. Walker is one of our customers; in my judgment the check purported to be made payable to R. J. Sims, and endorsed by R. J. Sims, purported to be signed by D. D. Walker, is not the signature of D. D. Walker.”

The foregoing is the substance of the testimony introduced by the state. When the state rested, the defendant demurred to the evidence for the reason that the evidence is wholly insufficient to show that a public offense has been committed against the state of Oklahoma by the defendant, Oscar Phillips, which demurrer was overruled and exceptions saved.

Mrs. J. D. Phillips, testifying for the defendant, stated she lived at Tuttle, Okla., was the mother of Oscar Phillips:

“He is about 50 years old, single, and his occupation that of a carpenter. His father died last year. He is a good worker and helps make me a living.”

Oscar Phillips, testifying in his own behalf, stated:

“I am the defendant in this case; have made Tuttle my home for the last four and a half years; I was born in Cass County, Texas; have lived in Oklahoma since 1907; I was away part of the time, but that is my home; my father died and I live with my mother; I am a single man, have never been married. Have never been in any trouble until this came up. I gave the check to Mr. Wegener; the date of the check is the date as well as I remember, I don’t remember exactly; I delivered the check to Mr. Wegener at. his elevator in Mineo.
“I did not write the name of R. J. Sims on the back of the check, I did not write any number on the check, nor did I sign the name of D. D. Walker to the check. I had been to El Reno and stayed two days, came back to Mineo and was there one night; I started home, I was on foot; I came by bus from El Reno to Mineo; I had to get off there or go around by Chickasha, and it was not far from Mineo home, eight miles, that is the reason I stopped at Mineo; I was trying to- catch a ride to Tuttle, and ran across a man in an old ’28 model Chevrolet sedan; he had his wife and two children with him and had a flat; the man said if I was not in a hurry I could go with him; I told him I believed I would get a cup of coffee while I was waiting, and I did; when I came back to the highway the man handed me the check and asked me if I minded cashing it; I looked at it and asked if it was the D. D. Walker who- lived in my neighborhood, and asked him where he lived and he said south of Mineo; I started across to- a grocery store and he told me if I did not mind to go down to the elevator and cash it, that he wanted some chickens and a sack of bran. I took the check down to Mr. Wegener and asked him if it was good, and he said it ought to be. I told him he was the only man I knew of that was making any money. He knew me, but had forgotten my name; he called me George Cunningham, and I told him I was Phillips, and he then remembered me personally. I had bought chickens from him at different times for father and mother; and chicken medicine.
“I told him I did not know Sims, I took it for granted he knew Sims when he said the check was good; I did not know there was anything wrong with the check or I would not have taken it to' him; I got one sack of bran and told Mr. Wegener to put the sack of bran on the platform, and helped him put it out on the platform, as Mr. Y/egener might be closed when the man returned; Mr. Wegener gave me the difference in the price of the sack of bran and the amount of the check in cash, and I took it back and gave it to the man who- gave me the check. The man was a short dark complectioned man about 35 years of age; I rode with him to Tuttle. The man claimed to live south of Tuttle. Since I was arrested I have asked several different parties and I have never seen anyone who knew him; I rode with this man to Tuttle, and got out on Second street; I did not know anyone by the name of R. J. Sims; I did not go into' the Wegener place of business and make an order for baby chicks before I presented the check to him; I ordered the chickens the same day I cashed the check for this man Sims, the same time I presented the check.”

On cross-examination the defendant stated that when he presented the check to Mr. Wegener the name of R. J. Sims was indorsed on the back of the check. The defendant was then asked to write Oscar Phillips, R. J. Sims, the Bank of Tuttle, and six, which he did, and the writing was introduced in evidence and compared with the check purported to be signed by D. D. Walker.

“I could not say when those baby chicks were to' be delivered that I ordered that time; this man told me to order them for Ms wife, and I did just what he asked me to do. It was none of my business why the man did not go by and get the sack of bran; I just rode to Tuttle; I helped Mr. Wegener put the sack of bran on the platform ; I never gave it a thought as to why the man did not drive by and get the sack of bran; I met this man between the car and the cafe where I got the coffee, in the middle of the street, he handed me the check and asked me if I minded cashing it for him; I looked at it and asked him if it was the D. D. Walker out in my neighborhood; I may have seen Walker’s signature, but I don’t remember it; I had never heard of Troy Jarman in my life and R. J. Sims was a heavy set man; I have asked several different parties, that is all I could do, if they knew a man named R. J. Sims; if I knew who R. J. .Sims was I sure would tell the jury; I didn’t know the check wasn’t any good when I took it to Mr. Wegener. I heard Mr. Wegener testify in this preliminary trial about the baby chicks I had ordered; I do not think I gave any date at that time; I am pretty sure he said it was the same date I cashed' the check; I can read and write, I have not gone to school very much, I finished the eighth grade. I never carried an account in the Bank of Tuttle. The day I was in’ Mineo I had money, about $16 or $18 in my pocket.”

The foregoing is the substance of the testimony offered by the defendant.

A number of witnesses testified to the defendant’s previous good character, and that they had never heard anything against him until this charge was filed.

At the close of all the testimony the defendant requested the court to instruct the jury to return a verdict of not guilty, for the reason there is no substantial evidence to show that the defendant had committed an offense against the laws of the state of Oklahoma, which was overruled and the defendant duly excepted.

The defendant has assigned six errors alleged to have been committed by the trial court upon which he relies for a reversal. Section 2125, O. S. 1931 (21 Okla. St. Ann. § 1577), is the section under which the defendant was tried and sentenced, which section reads as follows:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

The defendant has argued at length that the court erred in the admission of testimony over his objection when he permitted the prosecuting witness Wegener to testify “that my best judgment is the defendant endorsed' the check on my platform scales.”

It is insisted by the defendant that the court, in permitting the witness to state in his best judgment the defendant indorsed the name of B. J. Sims on the check at his scales, was prejudicial to the rights of the defendant. Let us review briefly the statement of the defendant as to how he happened to be in Mineo that evening and his accidental meeting with what seems to be a mythical man, who had a flat on his ear, and who told the defendant if he would wait he could ride to Tuttle with him in his car.

Next, the defendant says he left the man fixing the flat and went to a place to get a cup of coffee, as he had' the headache; as he returned the man met him in the street and asked him to get this $6.50 check purported to be indorsed by B. J. Sims cashed, and when he started to get it cashed at some store the man asked him to take the check to Mr. Wegener, and asked him to get a sack of bran. The defendant admits he took the check to Mr. Wegener, who cashed the check for him; that he got a sack of bran and put it out on the platform for fear Mr. Wegener would be closed when the man came to get the bran.

The defendant further states he took the money, the difference between the price of the sack of bran and the amount of the check, and delivered it to the man where he was fixing' the flat, and then rode to Tuttle with him.

Mr. Wegener testified some days prior to* the time he came to get the check cashed the defendant came and! put in an order for some baby chicks, in the name of R. J. Sims. The defendant denies this, and says he put in an order for this R. J. Sims the day he got the check cashed. The jury evidently did not believe the defendant’s testimony, and it is not reasonable, and we do not believe any unbiased, disinterested person would believe such a statement as the defendant gave.

The check was introduced in evidence, and the defendant was then asked to' write the name R. J. Sims, the words Oscar, six, and Tuttle on a slip of paper which was introduced in evidence. A comparison of the letter “r” in the words Walker and Oscar, and the last letter “s” in the word Sims, shows that the formation of the letters on the slip of paper where the defendant had written them are identical, and any one familiar with handwriting would be compelled to' say they were written' by one and the same person.

Many authorities are cited by the defendant to show that the court erred in permitting the witness Wegener to give his best judgment as to the defendant indorsing the name of R. J. ¡Sims on the back of the check at his scales, bnt a careful examination of these authorities shows they relate to a different statement of facts, and not to the question of handwriting on a check.

It is further shown by the record that this defendant is one and the same person who came to the place of business of the prosecuting witness several days before he presented the check to be cashed, and put in an order for some baby chicks in the name of R. J. Sims. The defendant says he could not find R. J. Sims after he was arrested; that Sims told him he lived south of Tuttle. The jury by its verdict did not believe the defendant’s testimony.

Section 3206, O. S. 1931 (22 Okla. St. Ann. § 1068), is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

As shown by the record, the testimony clearly shows the defendant in this case presented the check to the prosecuting witness to cash, and either indorsed it in the presence of the prosecuting witness, or wrote the name of R. J. ¡Sims on the check before it was presented by the defendant. Every circumstance surrounding the action of the defendant, and the presentation of the check to the prosecuting' witness to be cashed instead of taking it to some of the stores, conclusively shows that the defendant knew tlie check was a forgery and that he waited until late in the afternoon or evening to present the same to Mr. Wegener to have it cashed; and the circumstances further indicate that the defendant went to the prosecuting witness, Wegener, to cash the check for the reason he had heretofore placed the order for the chicks with the prosecuting witness to* assist him in securing cash on the check. Not one line of evidence, or one circumstance, tends to show the defendant acted honestly with the prosecuting witness, or that he believed the check was a valid check.

“Where a defendant is convicted and appeals to this court, the judgment should not be set aside or a new trial granted on account of the improper admission of evidence unless this court from an examination of the entire record is of the opinion that the error complained of has probably resulted in a miscarriage of justice, or that it constitutes a substantial violation of a constitutional or statutory right.” Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

There is nothing in the record to show that the admission of the testimony complained of resulted in a miscarriage of justice, or that it resulted in a violation of the constitutional or statutory right of the defendant.

The man he claims delivered the check to him was a stranger whom he had never seen before and has never seen since that evening. It does not stand to reason, and' the defendant could not expect honest jurors to release him from the forgery charge on such unreasonable, unsatisfactory, and false testimony as shown by the record.

In Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198, in the second paragraph of the syllabus, this court stated:

“When the sufficiency of the evidence is challenged, and the evidence as a whole does not satisfactorily or conclusively convince tbe appellate court of the guilt of the accused, the verdict will not be set aside on the ground of insufficiency of the evidence where, as in this case, there is some substantial evidence tending to support the verdict. The weight of the testimony and the credibility of the witnesses is for the jury.” Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746.

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or it appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Fred Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; A. G. Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789; and John Coppage v. State, 62 Okla. Cr. 325, 71 P. 2d 509.

There is nothing in the record to show that the verdict of the jury in this case is against the weight of the evidence, nor is there anything in the record to show that the jury was influenced by passion or prejudice. The evidence is sufficient to sustain the judgment.

The instructions of the court taken in their entirety correctly advised the jury as to the law applicable to the facts. The court did not err in permitting the prosecuting witness to tell all the facts and circumstances leading, up to the cashing of the check, and to state in his best judgment the defendant indorsed the check at his scales. The check was indorsed R. J. Sims, and the defendant gave his name a few days prior to the day he presented the check to the prosecuting witness as R. J. ;Sims, and the witness made a record of it.

The court did not err in overruling the demurrer of the defendant to the state’s evidence or denying his motion for an instructed verdict.

The defendant was fortunate he did not get a more severe punishment imposed on him, after the jury had returned a verdict of guilty. He was accorded a fair trial. There are no errors in the record warranting a reversal.

The judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    F. O. STRONG v. STATE.
    No. A-9311.
    Nov. 19, 1937.
    (73 P. 2d 876.)

      E, Blumhagen, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon information filed in the district court of Blaine county charging that in said county on March 28, 1936, F. O. Strong did commit the crime of illegal possession of intoxicating liquor, and further charging that previously thereto said defendant was duly tried and convicted in the county court of said county on an information charging the crime of transporting intoxicating liquor, and on November 27, 1928, was sentenced to serve a term of 30 days in the county jail and pay a fine of $50, and that defendant appealed to this court, wherein the judgment was affirmed on July 29, 1930. Strong v. State, 48 Okla. Cr. 252, 290 Pac. 1119. He was tried and convicted and his punishment fixed at imprisonment in the penitentiary for one year and a fine of $100.

From the judgment rendered on the verdict he appeals and assigns as error certain rulings of the court in admitting alleged incompetent and prejudicial evidence.

The evidence shows that Sheriff .Scott, together with two deputies and two city officers, on the date alleged, raided the defendant’s home in the city of Geary; they found ten pint bottles full and a half-gallon jar about half full of whisky in a box under one of the steps of the upstairs stairway. There were several men in the house at the time. The sheriff took a pint bottle of whisky from off one of the men. The defendant and the man having the pint bottle of whisky were arrested. The liquor seized was introduced in evidence.

The evidence further shows that the place searched had been the defendant’s home for at least 14 years.

As a witness in his own behalf the defendant testified that until the officers found the whisky he did not know it was there; that it did not belong to him, and he did not know who put it there, or who it belonged to.

It further appears from his testimony that he had not only been previously convicted of transporting intoxicating' liquor as shown by the evidence, but also of second degree forgery in the district court of Blaine county, and of automobile larceny in the district court of Canadian county.

Roy Chase testified that he was at the place when the raid was made and the officers took a part of a pint of whisky from him; that he did not buy the whisky from the defendant.

Counsel for appellant in his brief says:

“The defendant relies for a reversal herein upon the assignment of error that the trial court erred in permitting the introduction of testimony as to the reputation of the home of the defendant as a place where intoxicating liquor was kept for sale without there having been laid the proper predicate as required by law for the introduction of such testimony.”

Citing the following cases: Williams v. State, 25 Okla. Cr. 284, 220 Pac. 667, Severns v. State, 31 Okla. Cr. 281, 238 Pac. 217; Lumpkins v. State, 36 Okla. Cr. 256, 258, 253 Pac. 909; Millett v. State, 36 Okla. Cr. 309, 253 Pac. 1039; Parnell v. State, 37 Okla. Cr. 413, 259 Pac. 151; Fitzgerald v. State, 39 Okla. Cr. 320, 264 Pac. 929; Conley v. State, 40 Okla. Cr. 128, 267 Pac. 491.

It appears that W. I. Grant, city marshal, testified in part as follows:

“Q. Mr. Grant, in regard to the home of F. O. Strong, have you ever seen any one go there? Defendant’s objection sustained. Q. I will ask this question, do you know1 whether or not the public resort to that place? A. Yes, sir. Counsel for the defendant: I want to object to that until it is shown to be a public resort. By the Court: Sustained, I don’t think the question of public resort is in issue. I don’t' believe I would go into the reputation, of the place.”

The jury is admonished, placed in charge of bailiff. In the absence of the jury, the foregoing objection is argued.

“By the Court: Let the record show that the court is going to permit the state to offer testimony whether or not the place is a place of public resort. Objection overruled. Exception allowed.”

W. I. Grant, recalled, was asked:

“Q. Now, Mr. Grant, having served as city officer in the city of Geary, I will ask you to state whether or not to your personal knowledge his residence is a place where the public generally resort at all hours of the day or night? And answered: 'Yes.’ Counsel for the defendant: We object and move that the answer be stricken as incompetent, irrelevant and immaterial. Overruled. Exception.”

Cross-examination:

“Q. You think this place has the reputation of being a place where liquor is bought and sold, upon what do you base that, do you know that of your own personal knowledge or just wbat you have heard somebody say? A. Well, most of it is what I have heard people say, and I have seen people coming and going from there and some of them were drunk, and some of them had whisky on them and I have taken it off them.”

Colonel McManus, night watchman, city of Geary, testified that he went with officers Scott, Baskins, Autry, and Grant to the defendant’s home to make a raid in serving a search warrant.

Over the defendant’s objection he was permitted to testify that “the defendant’s home had the reputation of being a place in Geary where liquor can be bought.”

It also appears that the cross-examination of the state’s second witness, Clyde Autry, deputy sheriff, brought out testimony that the officers had been receiving numerous complaints as to intoxicating liquor being kept and sold at the defendant’s residence. However, the fact of complaints having been made to officers does not establish general reputation, and is not equivalent to it. Tarbutton v. State, 57 Okla. Cr. 442, 48 P. 2d 877.

It follows from the foregoing review that the objections to the sufficiency of the evidence to show that the defendant’s home was a place of public resort is not tenable.

In Lumpkins v. State, supra, we said:

“This court has repeatedly held that evidence of the general reputation of defendant’s home as being a place where intoxicating liquors are sold is admissible only upon the laying of the proper predicate, showing that his home was a place of general resort. Lotta v. State, 30 Okla. Cr. 105, 235 Pac. 245; Yakum v. State, 30 Okla. Cr. 184, 235 Pac. 253; Mockabee v. State, 28 Okla. Cr. 167, 229 Pac. 1094; Welch v. State, 35 Okla. Cr. 2, 246 Pac. 1113.”

We have also repeatedly held that, in a prosecution for possession of intoxicating liquors, with intent to sell, the reputation of the defendant’s home or premises is generally inadmissible, unless the place be one resorted to by the public; such evidence is then admissible on the question of intent. Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699; Caffee v. State, 11 Okla. Cr. 263, 145 Pac. 499; Felas v. State, 16 Okla. Cr. 631, 185 Pac. 839; Friedman v. State, 19 Okla. Cr. 124, 198 Pac. 350.

Upon the record before us we are of the opinion that the proof was sufficient to show a proper predicate, and that the court did not err in overruling the defendant’s objections to the admission of evidence tending, to show the general reputation, of the place where the liquor was seized.

Upon the whole case we are of the opinion that the defendant had a fair trial, and, finding no reversible error in the record, the judgment of the trial court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BABEFOOT, J.

text:
    BYNUM RAMBO v. STATE.
    No. A-9300.
    Nov. 19, 1937.
    (73 P. 2d 873.)

      Wise & Ivester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. G. Brewer, Acting Co. Atty., for the State.
   BABEFOOT, J.

The defendant was charged by information with the crime of grand larceny, was tried and convicted, and the jury assessed his punishment at two years in the penitentiary. From this judgment and sentence he has appealed.

The facts revealed by the record disclose that Dr. C. F. Jones lived in Erick, Beckham county, Okla., and that on the afternoon of May 31, 1936, he left his office for a short while, and when he returned some one had taken a typewriter and a camera, over the value of $20, from his office without his knowledge or consent. He gave no testimony to connect the defendant in any way with the crime.

A young man by the name of Hare testified that he was working at an ice plant directly across the street east of Dr. Jones’ office, and that on the afternoon of May 31, 1936, lie saw the defendant, whom he knew and identified, sitting in a Ford automobile near the office of Dr. Jones. Some other person was in the car with him. That he saw some one whom he could not identify, and whom he did not know, in Dr. Jones’ office. In a few minutes he saw this party come toward the car where defendant was sitting, and that he appeared to have something large under his coat. He did not see what it was, and could not in any way identify it. This unknown party got into the car in which defendant was at the wheel, and he saw them drive down the street.

Charles Rogers testified that he was the city marshal of • Erick and also a deputy sheriff; that he saw three parties driving down the streets of Erick on the afternoon of May 31, 1936, one of whom he identified as Claud Richerson; that they were in what he believed to be a Ford car. He testified that on the following day he talked to Dr. Jones in reference to the loss of a. typewriter and camera; that he afterwards found the typewriter in a sack in some bushes about three miles south and one-half mile west of Sayre, in Beckham county, and found the camera in the town of Sayre; but does not testify where he found it or in whose possession; and that Claud Richerson told him: “We got it.” He did not tell him who “we” was, but he said, “If you will get those charges dismissed against me I will go and get the stuff,” and “we drove out there and got it out of the sliinnery thicket in a toesack.” This evidence was incompetent as against this defendant. The above was the only testimony introduced, and was all that was shown to connect the defendant with the theft of this property.

The defendant demurred to the evidence and made a motion for a directed verdict of not guilty, which was overruled by the court, and the'defendant excepted. He did. not take the witness stand, as he had a right not to do nnder the law.

From the above statement we are of the opinion that the court erred in failing to sustain the motion for a directed verdict, of not guilty. In this case the state relied upon circumstantial evidence for the conviction of the defendant. Under the law where circumstantial evidence alone is relied upon, the circumstances must be such as to preclude every reasonable hypothesis other than the guilt of the defendant of the offense charged before he may be convicted. In the case at bar, the court did not charge the jury upon the question of circumstantial evidence at all. We think an instruction upon circumstantial evidence should have been given; but no- exception was reserved to the action of the trial court in failing to give such an instruction. We would not, therefore, reverse this case for this reason if that was the only error; but there was nothing shown by the state to connect the defendant with the property that was stolen; nothing to show he took it to- where it was afterwards found, or that he had possession of it in any way. There might be many reasonable hypotheses as to why he was seen in the car with defendant. We are of the opinion that the evidence was wholly insufficient to connect the defendant with the crime of larceny. Matthews v. State, 8 Okla. Cr. 676, 130 Pac. 125; Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; Bryan v. State, 11 Okla. Cr. 180, 144 Pac. 392, 393; Adams v. State, 38 Okla. Cr. 173, 259 Pac. 665; Lynn v. State, 63 Okla. Cr. 55, 72 P. 2d 846; Williams v. State, 38 Okla. Cr. 370, 261 Pac. 977; McLaughlin v. State, 18 Okla. Cr. 137, 193 Pac. 1010, 1012. In the McLaughlin Case, supra, the court says:

“It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.
“If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal. * * *
“It appears from the record that the sole ground upon which the case was submitted to the jury was that the defendant was found in the stolen car with one of the confessed thieves. It also appears that the charge of the court did not contain an instruction on circumstantial evidence. However, the defendant did not object to the instructions given by the court and did not request any instructions. It is undisputed that the defendant was not in the town of Mannford when his codefendant stole the car in question, or that he had hired Staley and Wilcox to drive him to Tulsa, and there is an entire absence of testimony tending to show that this defendant aided and abetted his codefendants in any way.
“It is unquestionably the law that crime may be established by circumstantial evidence, otherwise society would be at the mercy of the criminal classes, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and where circumstantial evidence solely is relied on for a conviction the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant as to exclude every other reasonable hypothesis except that of guilt. Can it reasonably be said that the fact that this defendant was riding in the stolen car Avith one who was confessedly the thief was sufficient to show his complicity in the crime charged? It -seems to us clearly that it was not, and, for this reason, when the state closed its case in chief, the instruction asked by the defendant directing the jury to return a verdict of acquittal should have been given at that time.”

In the instructions to- the jury, the court on several occasions referred to the defendants, Bynum Rambo, Claud Richerson, and Jerry Lauderdale, and said:

“In case you find that said defendants did so take said property, etc., then you will find the defendant, By-num Rambo, guilty.”

The defendant had taken a severance, as he had a right to do under the law. His name should not have been used in the instructions in connection with the other defendants, other than to inform the jury that he alone was on trial.

The contention that the statement of the acting county attorney in his closing argument to the jury was error, is well taken. This statement was:

“This is the last defendant in this case to come before this court and this defendant is just as guilty as the other two.”

There was no proof that there were two other defendants, or as to what disposition had been made of their cases. We think that, under all the circumstances, and the weakness of the testimony of the state, it was error for the acting county attorney to state:

“This is the last defendant in this case to come before this court and this defendant is just as guilty as the other two.” Zedda v. State, 30 Okla. Cr. 348, 235 Pac. 939; Cline et al. v. State, 57 Okla. Cr. 206, 47 P. 2d 191.

Por the reasons above stated, the judgment of the district court of Beckham county is reversed.

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


text:
    Ex parte M. T. STARK.
    No. A-9420.
    Nov. 27, 1937.
    (73 P. 2d 1162.)
    Clay Snodgrass and D. R. Rutherford, for plaintiff in error.
    Mac Q. Williamson,' Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

This is an original petition in which petitioner alleges he is unlawfully and illegally restrained of his liberty by H. T. Kimbell, sheriff of Jackson county, Okla.; that the cause of his restraint to his best knowledge, information and belief is as follows: On the 20th day of September, 1937, the defendant was held to bail, and is now in the county jail of Jackson county, in default of making bond fixed by the district court at 13,500.

Petitioner alleges that the amount of bond is excessive and he is unable to make it; and the district court refuses to make a reduction in the amount of said appearance bond; that the fixing of the bond at $3,500 is unwarranted, arbitrary, oppressive, and contrary to the general practice of the district court of Jackson county, and the rules of law and justice.

An alternative writ was issued, served, and a response was filed admitting the petitioner was in custody. A hearing was had and, after hearing the facts, the court is of the opinion that the petitioner is not entitled to the relief prayed for.

The writ is denied, and the court refuses to reduce the amount of bond as fixed by the trial court at $3,500.

DOYLE and BAREFOOT, JJ., concur.


text:
    ARTHUR YOUNG et al. v. STATE.
    No. A-9294.
    Dec. 2, 1937.
    (74 P. 2d 392.)
    Ernest F. Jenkins, for plaintiffs in error.

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

The information in this case charged that Arthur Young and O. D. Barnes, in the county of Payne, on the 5th day of August, 1936, did unlawfully keep and maintain a place, to wit, lots 17 and 18, block 1, Lynn addition to the city of Stillwater, wherein intoxicating liquors were received and kept for the purpose of bartering, selling, and otherwise furnishing the same to-others unlawfully. The defendants were jointly tried. ■The jury returned a verdict finding both defendants guilty of maintaining a place and fixing the punishment of each at a fine of $50 and confinement in the county jail for 30 days.

To reverse the judgment rendered on the verdict, December 31, 1936, the defendants appeal.

Of the various assignments of error, the only questions which require consideration relate to the action of the court in overruling the motion to suppress the evidence, and that the evidence was not legally sufficient to sustain the verdict.

It appears that appellant Young and his wife lived in a four-room house on the lots described; adjoining the house was a room in Avhich appellant Young had a restaurant; there was also a house on said lots occupied by another family. That on the day alleged, Allen Humphrey, undersheriff, W. K. Belknap, deputy sheriff, Bob' Sparkman, chief of police, and John Black, policeman, in executing a search warrant, searched the premises, and in the home of Arthur Young found about a half gallon of whisky and a small jug of wine.

The officers each testified that the reputation of being a place where intoxicating liquors were kept and sold was bad. Sparkman, chief of police, on cross-examination stated that all investigations he had made revealed nothing out of line; that he visits the place three to four times a week, without a search warrant, and never notices anything unlawful.

As a witness in his own behalf, Arthur Young testified that he owned his home and the restaurant; that he knew nothing about the whisky found there by the officers; that his boys made the wine by putting mulberries and! some water in the little jug.

The defendant O. D. Barnes, as a witness on his own behalf, testified that he had been living with Arthur Young; that he was the owner of the whisky found there by the officers that day; that he had been using the whisky for medicine, as prescribed by his doctor; that he had never sold any whisky.

At the close of the state’s evidence, and again at the close of all the evidence, counsel for appellants demurred to the evidence and moved for a directed verdict of not guilty, for the reason that the same wholly fails to show the defendants guilty of the crime charged. Which motions were denied. Exceptions reserved.

When the case was called for trial, counsel for defendant Young filed a motion to suppress the evidence of the finding of the whisky, because the officers invaded the home of defendant and his place of business without a valid search warrant in violation of his constitutional rights.

In support of his motion, Arthur Young testified that a copy of the search warrant was served on him by Mr. Belknap, and the copy was admitted in evidence. In the warrant the place to be searched is described as follows :

“On the following described premises located and situated in Payne County, Oklahoma, to wit: The person of Arthur Young and the private dwelling, buildings and premises located lots 17 and 18, block 1, Lynn addition, to the city of Stillwater.”

Alice Young, wife of the defendant, testified that when the raid was made, there were two residences on these two lots, their four-room dwelling house and the restaurant-on the north side, under a, different roof and not connected with the dwelling house by a door, each having a front door and a back door; that back of the restaurant is a club room, organized and operated by club members, and it has a pool table, also their garage and chicken house; that the rented house is located 14 feet behind her dwelling house, and has been occupied and used as a residence for about a year before the raid by a man, his wife and daughter; that they paid her the rent for the house.

In rebuttal, W. K. Belknap, deputy sheriff, testified that he participated in the raid and served the search warrant; that he found about a half gallon of whisky in a room in the dwelling house, which was claimed by the defendant O. D. Barnes, and he arrested him; that his search was confined mostly to the store and house in which they lived; that he did not pay any attention to the other buildings; that the other officers searched that part of the premises.

At the conclusion of the hearing the court overruled the motion to suppress. Exception allowed.

It is urged that the search warrant was insufficient in that it does not describe the place where the officers searched, and did not conform to the provisions of section 2638, Okla. St. 1931 (37 Okla. St. Ann. § 87) which reads:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

In conformity to this statute and to the authorities generally, it has been many times held by this court that a search warrant must so particularly describe the place to be searched that the officer to- whom it is directed may determine it from the warrant, and that no discretion as to' the place to be searched is left to the officer. Bryson v. State, 59 Okla. Cr. 130, 56 P. 2d 1198; Clanton v. State, 59 Okla. Cr. 365, 60 P. 2d 415; Smith v. State, 40 Okla. Cr. 366, 269 Pac. 376; Shanafelt v. State, 38 Okla. Cr. 345, 261 Pac. 380; Mayberry v. State, 62 Okla. Cr. 183, 70 P. 2d 1106; Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145.

It was undisputed that upon the premises described in the search warrant there were two separate residences occupied by different families.

It would seem that the warrant was intended to operate, and did operate, as a blanket search warrant, governing the homes of two separate families, and was therefore void.

Upon the whole case we find that the evidence is insufficient to show the essential elements of the offense charged.

It appears that the information is based upon that part of section 2616, Okla. St. 1931 (37 Okla. St. Ann. §73), which declares:

“And all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resold- for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

In Tarbutton v. State, 57 Okla. Cr. 442, 48 P. 2d 877, 878, it is said:

“It is true that the word ‘reputation/ when unqualified, in common parlance means general reputation. What peace officers say to one another about a man’s place is not reputation. Reputation is what people generally in a community say of a place.
“ ‘ “Reputation” is said to be the common knowledge of a community.’ and ‘ “Reputation” is defined to be concurrence of many voices to the same fact.’ 7 Words and Phrases, First Series, p. 6119.”

In the case of Bunch v. State, 53 Okla. Cr. 430, 12 P. 2d 704, this court held:

“Where one is charged with keeping a place in such manner as to constitute a public nuisance, its general reputation as such may be shown; but evidence of reputation alone will not support a conviction.”

It follows from what has been said that the evidence procured by the search and seizure was improperly admitted over the defendants’ objections and the evidence was not sufficient to sustain the verdict.

For the reasons stated the judgment of the lower court is reversed; the cause remanded, with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    STATE v. WILLIAM FELTS.
    No. A-8338.
    Dec. 2, 1937.
    (74 P. 2d 125.)

      Dixie Gilmer, Co. Atty., and M. S. Simms, Asst. Co. Atty., for the State.
   DOYLE, J.

The defendant in error, William Felts, and his codefendant, Forest Groves, on the 8th day of March, 1937, entered pleas of guilty in the district court of Tulsa county to a charge of conjoint robbery, and by said court were each sentenced to- serve a 5-year term in the reformatory at Granite, Leslie Webb, judge of said district court, presiding. On March 18, 1937, Judge Webb granted a parole to defendant William Felts, under the provisions of section 3148, O. ;S. Í931 (22 Okla. St. Ann. § 991), which gives to the court the right to' parole a defendant under 21 years of age. The ’ county attorney thereupon filed a motion to set aside the order paroling defendant, a minor.

Said motion was heard and evidence introduced in support of the same. After which hearing the court overruled the motion to set aside the parole. To which ruling of the court plaintiff in error excepted, and the state appealed on questions reserved.

The original case-made, duly signed, attested and filed in the court below was with petition in error attached, filed in this court on May 24, 1937.

Since the appeal was taken, the defendant in error departed this life as shown by the motion of the county attorney, suggesting the death of William Felts, defendant in error, having been killed November 21 in an automobile accident.

In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially on the judgment of conviction therein rendered against the defendant William Felts, do abate. It is so ordered, and! the cause remanded to the district court of Tulsa county, with direction to enter its appropriate order to that effect.

DAVENPORT, P. J., and BAREFOOT, J., concur.