author: DAVENPORT, J.

text:
    GEORGE MORRISON et al. v. STATE.
    No. A-9022.
    May 8, 1936.
    (57 Pac. [2d] 882.)

      Welch & Cunningham, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error were by information jointly charged with murder; jointly tried, convicted of manslaughter in the first degree, and plaintiff in error George Morrison was sentenced to confinement in the state penitentiary for a term of 25 years; and defendant Felix Morrison was sentenced to confinement in the state penitentiary for a term of five years. From the judgment both plaintiffs in error, who will hereinafter be referred to as the defendants, appeal.

In summing up the testimony against the defendants, we will first present an abstract of the testimony introduced by the state and the defendants, as to the defendant Felix Morrison, as the record shows the defendant George Morrison is the one who fired the shot that took the life of the deceased, Sim Cook. At the time of the killing, the deceased was the town marshal of Woodville, and the defendant George Morrison was a constable.

Charley Strickland, testifying for the state, stated he was at a basket ball game at the school house the night of the killing; he saw the defendant George Morrison standing in front of the door of the school building, and deceased was there also; that both the deceased and George Morrison went away from the front of the building, and the shooting took place a little south of the little building, or just across the sidewalk; “immediately after the shot was fired I heard Felix Morrison say, ‘Give him another one.’ I do not know w;ho he was addressing.” Felix was about 35 feet down the sidewalk from George Morrison, the defendant, and Sim Cook, the deceased, at the time the shot was fired; “I do not know what Felix Morrison did after the shot was fired.”

J. W. Johnson, testifying for the state, stated:

“Just before the shot was fired I heard the deceased, Cook, tell Felix to stand back; at that time Felix was about ten feet down the road from George and deceased; I was about 18 feet away from all of them, hiding behind a bannister.”

Mrs. Jessie Taylor states she was very close to the scene at the time of the difficulty; she did not hear or mention seeing Felix or hearing the deceased or any one else say anything except George Morrison, the defendant.

George French stated:

“I was at the school house at the basket ball game the night the homicide occurred. After the shot I went up near where the body of the deceased was, and saw Felix Morrison there with the bunch, but did not hear Felix say anything or see him do anything.”

W. I, Lemons stated:

“I heard the shot and came up to the school house and saw Felix Morrison standing on the sidewalk in the crowd.”

The testimony of a witness by the name of Eeed, taken at the preliminary trial, was read to the jury, in which testimony it was stated he saw Felix going in the direction George and the deceased had gone, and he heard the deceased tell Felix to stand back; the deceased and defendant walked away before Felix went toward where they were. “At the time Felix was walking toward them nothing unusual attracted my attention.”

J. H. Dillon, a witness for the state, stated:

“After the shooting Felix Morrison, or some one, was standing right by me; he said pour it on him, he may not be dead.”

Carl Spence stated:

“I was about four blocks away when I heard the shot; when he came up to the crowd Felix was standing there, and stated he would not get any more halves; I do not know what Felix was referring to.”

The defendant George Morrison, testifying with reference to his brother Felix, stated that:

“After the deceased Cook had accosted him and the difficulty started, Cook said to Felix, ‘Stand back, Felix, or I will kill you, too.’ ”

Felix Morrison, testifying in his own behalf, denied making the statement, “Give him another, he may not be dead,” and that he would not get any more halves. Felix stated he did not have a gun the night of the trouble; that he was out looking for one of his boys when the trouble came up.

Joe B. Goff testified for the defense that just before George Morrison fell he was standing still:

“It was very dark excepting Sim Cook’s flashlight; after George fell I said to Felix, ‘Are you going, to let him do that to your brother?’ and he said, ‘Nothing I can do.’ Immediately a shot fired; Sim Cook was standing when George shot him; had a flashlight in his hand; I did not see George pull his gun; I did not hear Felix say to shoot again; Felix Morrison was standing near me when I saw him; I did not hear him tell his brother to give him another, he might not be dead yet.”

Boss McCarson, who was nearby, did not recall seeing Felix or hearing him say anything. The testimony shows that it was very dark and the deceased and the defendant were out some distance from the crowd; some time during the difficulty the deceased had a flashlight.

The foregoing is in substance the testimony of both the state and the defendants as to the presence of Felix Morrison at the difficulty, and the remarks made by him prior to the shooting as to what some of the witnesses claim to have heard the deceased tell Felix Morrison to stand back. The proof shows he was several feet from the deceased and the defendant at the time.

Charley .Strickland, a witness for the state, stated:

“I attended the basket ball game at the school house in Woodville the night of the difficulty; I saw George Morrison before the shooting, and I also saw the deceased standing up in front of the door of the school house; George Morrison and the deceased left and went a little south of the building across the sidewalk, a distance of about 30 feet; I was about 15 feet from defendant and the deceased at the time the shooting took place; I heard Cook tell, George,not to get his gun; Sim Cook fell at the time he was shot; before the shooting I heard a lick, or what I took to be a lick; I do not know whether the deceased had a gun or not.”

J. W. Johnson testified on behalf of the state:

“I was at the school house the night of the shooting; Sim Cook and George Morrison passed me going out of the school house to the street; Cook was the town marshal and George Morrison was constable; they went south from the school house; I heard the shot, I was in the school house behind a bannister; I did not see any portion of the difficulty; I saw a flashlight on the street where the parties were.”

John Ayres, a witness for the state, stated:

“I attended the basket ball game at Woodville the night of the trouble; I saw George Morrison, and the deceased, Sim Cook.”

Mrs. Jessie Taylor testified:

“I live at Woodville; I knew George Morrison and his brother Felix; in November, 1930, I was at the basket ball game at the school house; at the time of the trouble I was sitting in my car -directly opposite the front door of the school house, which building, faces west; I heard some scuffling across there behind the cars, and thought it was boys at the start; I heard Sim Cook say, ‘What you doing Avith that gun?’ and immediately thereafter the gun fired; I could not see the parties at the time I heard the scuffle; there was a string of cars between me and them; there was silence for some little time after the gun fired, then different parties came up to the place where I heard the scuffle seemingly to see if something had happened; I did not get out of my car. I came in contact with Mr. Cook in church work; I knew the sound of his voice; I think it was his voice I heard.”

On cross-examination the witness stated her car was on the west side of the street:

“I did not see the flash of the gun to tell which way it was pointed; I was not scared and did not pay much attention, I don’t remember which way I looked; I am positive I heai’d Sim Cook make some remark about a gun.”

George French, a witness for the state, stated:

“I was acquainted with the defendants George and Felix Morrison; I was at the Woodville school house attending the basket ball game; I saw Felix one time after the trouble was all over; Sim Cook had been shot before I saw his body, which was lying on the ground out a little bit from the school house; Í heard a shot, but do not know anything about who fired the shot.”

On cross-examination witness stated the shot was fired from the ground:

“I turned about, the time the shot was fired looking in the direction of where the parties were.”

W. I. Lemons, testifying for the state, stated:

“I was at the basket ball game at the school house in Woodville the night of November 21, 1930; as I was returning from the school-house to my home George Morrison overtook me; I heard a gun fire, or a car backfire— I did not know which it was at first — I thought it was a gun; a minute or two after I heard the shot George Morrison overtook me; he had something in his hand in his coat holding it; I could not tell what it was, it looked like a fruit jar; as he passed me I smelled the odor of whisky; I went back up to the school house and found the deceased dead; I smelled whisky when I got to the body of the deceased. Felix Morrison was on the sidewalk when I got up there, ten or fifteen feet, or a little further from the body; there were other parties there also; I am a constable a.t Woodville at this time.”

On cross-examination witness stated that:

“In 1928, George Morrison and I made the race for constable and George beat me; in the summer of 1980, we again made the race and I beat George; George Morrison was serving his last days as constable; the deceased passed my house that evening going toward the schoolhouse; I had not been to the schoolhouse and did not see him before the shooting; I did not see George Morrison at the schoolhouse; I could not say when I put my gun on, but it was before the trouble; when I returned home the second time I did not take my pistol off; when I went up to where Sim Cook’s body was, his pistol was on the ground; I asked Mr. Lacy Dillow to pick it up and take care of it; I knew it was ,Sim Cook’s gun, as I had seen it many times; his gun was near his feet; I am a member of the city council, and Sim Cook was the constable.”

Lacy Dillow stated:

“I live at Woodville; I am acquainted with W. F. Reed; the best I can learn W. F. Reed is in Texas; he has been gone from Woodville about three years. I knew Dee McCuen, have known him all his life; he is working for the Prairie in Oklahoma somewhere, maybe one day in Oklahoma City and from there to the Kansas line; I am a justice of the peace.”

On cross-examination witness stated:

“I made no effort to locate Dee McCuen; I made inquiry from his folks; he has been gone since February, working for the Prairie Company; I made no effort to learn from the pipe line company McCuen’s whereabouts; he is supposed to be between Oklahoma City and the Kansas line.”

T. Z. gplawn, called as a witness for the state, stated:

“I am the sheriff of Marshall county, Oklahoma; I received a subpoena for W. F. Reed; I tried to find him but I did not serve it; some said he was dead, and some said he had left the neighborhood; I received a subpoena for Dee McCuen; Ms folks said he left three or four months ago, that he was in Oklahoma or Kansas, they did not knew which .place.”

On cross-examination witness stated he had known the case was set for about two weeks; McCuen’s father and mother lived at Woodville:

“His brother told me he was supposed to be in Oklahoma or Kansas, they did not know, working for some oil company; McCuen was 18 years of age; I reported he was gone; that was my information; I did not ask his mother or father about him; I did not make any return on the subpoena.”

The record shows that Dillow and Splawn were called for the purpose of laying a predicate for the state so as to be able to use the testimony of the two witnesses taken in the preliminary trial. In addition to the two witnesses, the court clerk was called to show he issued subpoenas for the witnesses and Sam Y. Colby, testified as to being in the neighborhood of Woodville; that he did not see the mother of Dee McCuen, but asked some parties that lived in the house where the mother lived. Over the objections of the defendants, the court permitted the testimony of W. F. Reed, taken in the preliminary trial, to be read as part of the testimony in the trial of this case.

W. F. Reed stated in his testimony:

“I saw Mr. Cook and George Morrison go- off together; I saw Felix go in the direction they went, and I followed as far as the sidewalk; I could not see a thing in the world; I heard Mr. Cook tell Felix to stand back, not to come up; I did not hear any statement made by anyone relative to what are you going to do with that gun.”

J. H. Dillon, testifying for the state, stated:

“I was at the schoolhouse the night of the difficulty; I saw Sim Cook and George Morrison in front of the schoolhouse; George Morrison was talking and Sim Cook said something to him, to cut it out; I did not understand anything Morrison said. Cook and Morrison went west across the road in front of the school house, and George fell over something; he went down for some cause, I think he stepped on a piece of pipe; I think it was a pipe that threw him down, but anyway he went down; I can’t remember any conversation; Morrison shot before he got up; he shot immediately after he fell; Felix Morrison, or some one standing by me said, Tour it on him, he may not be dead’; Felix was standing across a ditch, probably eight or ten feet, at the time, I would not know positively about the distance. After Cook fell George picked something off the ground; it looked like.a fruit jar, or drug store bottle, something about that size. I did not hear any statement made by George or Felix prior to the shooting.”

Several other witnesses testifying for the state stated they were at the schoolhouse the night of the basket ball game, and saw the deceased and the defendants, George and Felix Morrison; that the defendant George Morrison and Sim Cook, the deceased, went off together out in the dark behind some cars; they heard a noise like some one had been struck, and they saw George Morrison fall or go down; the deceased had a flashlight and a pistol.

George Morrison fired a shot while on the ground that killed Sim Cook. Neither of the state’s witnesses saw the defendant Felix Morrison do anything prior to the shooting ; some of them claim they heard Sim Cook say, “.Stand back, Felix.” Other witnesses who were nearby did not hear him say anything. After the shooting, some of the witnesses claim they heard Felix say, “Pour it on him,” or “Give him another, he may not be dead,” and that he Avould not take any more halves. They did not know to Avhom he was talking. One of the other witnesses, testifying for the defendant, stated:

“When George was either knocked down or fell down, he asked his brother if he was going to let Cook do that, and Felix replied, ‘What can I do?’ and made no effort to advance toward where the deceased and the defendant George Morrison were.”

The defendant George Morrison, testifying in his own behalf, stated:

“At the time of the difficulty I was living at Wood-ville; I am now living at Cumberland; I was constable, and the deceased was town marshal at the time of the trouble; I had beaten Mr. Lemons in the election two years previous, and in November prior to the difficulty Mr. Lemons had defeated me for constable. J. W. Johnson was also town officer at the time of the difficulty.”

Defendant stated:

“I did not sell any whisky to Dee McCuen. I had some trouble with Sim Cook over the division of fees in á case; I went to the school house and put my little boy in the schoolhouse, and I stopped outside leaning against a pillar, talking and finishing a cigarette I was smoking; Sim Cook and Bill Johnson came to me, and stopped there a moment and then Sim said, ‘Come here’; I thought maybe he had something and he wanted me to help him; I Avent on ahead and southwest of the building behind the cars he stopped and said, ‘When are you going to pay me that sanitary bill?’ and I said, ‘I told you when I would pay it,’ and I could see he was getting mad, he commenced shaking, and his voice was shaking, and I said, ‘I walked away from you tAVO or three times to keep from having trouble,’ and then I said to him, ‘I will borrow the money and pay you,’ and he said, ‘You are going to pay me right now,’ and I said, ‘Just a minute — give me a few days to borrow it and I will pay it’ — and I said, ‘You or the city beat me out of four or five dollars; I will borrow the money and pay you.’ The deceased replied, ‘You are too dog gone smart, you are messing with my business,’ and I said, ‘If I knew what your business was I would quit rather than have any trouble Avith you.’ He had his gun. and rubbed me in the stomach, and grabbed me by the bib overalls with his left hand. Felix came up and the deceased said, ‘Stand back, Felix, stand back’; he said, ‘Don’t move, I am going to kill you,’ and I said, ‘Don’t do that.’ I grabbed my gun and shot. I had it on the inside of my overalls in a scabbard; I pulled my gun and kept him from killing me.”

Testimony was introduced to show that after the killing George Morrison got in communication with the sheriff’s office and asked them to send some one out so he could surrender.

Tom Gresham, testifying for the defendant, said that:

“Shortly before the night of the difficulty I heard Sim Cook say he had his bluff in on George now, referring to George Morrison; it seems to me I told George about it but I am not positive I did.”

Pete Whitely, testifying for the defendant, stated he knew the parties, and shortly before the killing he was in conversation with Sim Cook, in Woodville:

“George Morrison went across to the bank and Cook said, ‘There goes a s — of—b— I am going to kill’; I said, ‘What are you going to do that for?’ and he said, ‘He is so smart,’' and I said, ‘You ought not to talk that way.’ ”

Joe G. Goff, called by defendants, stated:

“I was at the basket ball game the night of the trouble; I saw Sim Cook call George Morrison off from the front door of the building; Cook said, ‘Come here a minute’; if Cook said anything to George about talking too loud I did not hear Mm, and I think I would have heard it if he had said anything.”

Ross McCarson stated he was at the basket ball game the night of the trouble at the schoolhouse; his attention was called to a flashlight around behind the cars southwest of the school building:

“I started out there with Charley Strickland, and he went on, I took my time; I heard some kind of a thud sound; I was about 3d feet from the parties; just as I got near them I saw the fire of the gun and Sim Cook fell;;I- did not hear anything, said; as he fell I started back and saw George getting up; it looked like Cook fell on George and he rolled him off, and I went on and struck a match and. Cook was lying there. George went on off.”

Testimony was offered showing there was a bruise on ■the head of George Morrison, and the state asked some witnesses for the defendant if they had been convicted for a crime, and one or more of them admitted they had. Felix Morrison denied making the statements attributed •to him, and denied taking any part in the difficulty; he admitted he was in the yard at the time of the shooting, and he saw George on the ground about the time the shot was fired.

The foregoing is the substance of the testimony, both for the state and the defendants.

The defendants have presented seven errors upon which they rely for a reversal. The first, error discussed is that the verdict is contrary to the evidence, and against the weight of the evidence, and is insufficient as a matter of law to sustain the conviction. This assignment of error is discussed separately by counsel for the defendant Felix Morrison, and it is earnestly insisted by the defendant that the only evidence there was against him was the fact that he was present with many other parties at a public gathering at the schoolhouse where the homicide occurred. As shown by the record in this case, the de- ' ceased and George Morrison met in front of the school building, and went off together out in the dark behind some cars. The defendant Felix Morrison was fiot with George, nor was he present when the deceased and George Morrison went out in the street, or away from the school building.

There is no evidence in the record tending to show that Felix and George Morrison had communicated with each other, or that they had conspired together to do the deceased any harm. There was a number of parties at the schoolhouse and around in the school yard when the deceased and the defendant went out in the dark; what took place between them no one seems to know; some of the witnesses say they heard the; deceased say to Felix Morrison, ‘Stand back”; other parties say they heard a thud like some one had been struck; the next thing they saw was the defendant George Morrison on the ground with the deceased standing over him, bending over a little bit, and the defendant George Morrison fired the shot that killed the deceased, Sim Cook, while he was on the ground.

One of the witnesses testifying stated that he asked Felix Morrison, who was standing near him when the deceased knocked his brother down, if he was going to let Sim Cook ’treat his brother that way, and Felix said, “What can I do,” and took no part in the fight. Not a word except as stated herein was uttered by Felix Morrison, and no act of his indicated he had conspired with his brother or was aiding or abetting in the difficulty. The only remark any one claims to have heard was the remark from the deceased, saying, “stand back.”

It is contended by the state that after the shot was fired and Cook was dead that the defendant Felix Morrison stated, “Give him another, he may not be dead.” Several witnesses standing by say they did not hear that statement. He denies he made it. They claim he made another statement that he would not get any more halves off of anyone. The statement was not addressed to any particular person, and they did not know about whom he was speaking as no names were called.

This is a review of every word of the testimony that in any way whatever shows the presence of the defendant Felix Morrison at the schoolhouse, or near where the difficulty took place.

It is not contended by the state that the defendant. Felix Morrison took any part in the difficulty, or by any act or deed aided or encouraged his brother to commit the act, but, on the contrary, he kept away from them, and stated to one of the witnesses who asked him about the way the deceased was treating his brother, “What can I do about it?”

One witness testified he thought George stepped on a piece of pipe and it rolled and he fell, but there was a small bruise on his head and defendant stated he was struck with a pistol and fell.

In Moore et al. v. State, 4 Okla. Cr. 212, 111 Pac. 822, 824, this court in discussing the question stated:

“To constitute one a party to a crime under this statute, it is necessary that such person be concerned in the commission of the offense — that is, that he either commit it or aid or abet its commission — and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to-the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.”

. This question has been before this court many times since Moore et al. v. State, supra, was decided, and the court has followed the ruling laid down in the Moore Case. Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194.

In Baldock v. State, 16 Ókla. Cr. 203, 182 Pac. 265, this court in the body of the opinion stated, in substance, the following facts as presented by the state against the defendant: The defendant, talking to Logan Pool, said, “You can rely on us, I and my wife, being your friends; we always favored Cleo before you knew her; we will do anyhing to help you settle your trouble; we certainly are your friends; if you ever needed friends now is the time.” The defendant Baldock started to walk away and Pool started into the restaurant, turned around and said, “Wait-a minute,” and he then stepped into the restaurant, got his coat and hat, and rejoined the defendant; that he had no agreement with Pool to' kill Hurt; he did not know of Pool having a gun. The defendant did not have a gun, and had never owned a gun. In the conversation nothing was said about a gun; Pool said he was going to the Palace Theatre, and the defendant stopped in front of the Western Union to get the time; as they reached the corner of the court square Pool left him saying, “There goes Hurt, I am going to speak to him,” and the defendant said, “Come on and go home”; he was on Lincoln street Some distance from Pool when the pistol fired. After the pistol fired, the defendant went back to the drug store and from the drug store to Davis’ store. There was no understanding between him and Pool to assist him to find Hurt, or to kill him; he told Pool the best thing for Mrs. Pool to do1 was to quit work at his shop and that it would keep.her from coming in contact with those he was jealous of;, that he had- no intention at the time to cause any trouble for Hurt, or to do him any harm.

After reviewing the facts, the court held that the evidence was insufficient to support a verdict of guilty against the defendant Baldock.

In Evinger v. State, 57 Okla. Cr. 63, 45 Pac. (2d) 552, this court adhered to its holdings heretofore. upon the facts as presented, and held that the testimony was not sufficient to sustain a conviction, against Evinger, who was at the filling, station with the man who committed the crime, but outside of his presence there with him took no part in the shooting.

If all the evidence in the case except the evidence of the state be eliminated, the state’s evidence is insufficient to support the verdict rendered against the defendant Felix Morrison, and the court committed a fundamental error in overruling the motion for a new trial when the entire evidence is considered, which should be done upon a motion for a new trial, and it is remembered that the veracity of the defendant is not questioned by the state, said error of the trial court is emphasized. While.it is well settled that this court will not disturb the verdict on account of the evidence when there is any competent evidence to support it, the converse rule is equally well settled that it is not only the province but the duty of the court to set aside the verdict when it is. contrary to the evidence, or where there is no evidence to support it.

The defendant George Morrison,, in support of ■ his motion .for a new trial, insists that the-court admitted improper testimony against him. .As. shown by the testimony, the defendant George Morrison and the deceased, Sim Cook, were both at the schoolhouse where the basket ball game was being played, and Cook spoke to the defendant, . and they walked away from the schoolhouse, and passed beyond some cars into the dark. The testimony does not disclose what passed between the defendant George Morrison and the deceased, except that witnesses say they heard a kind of a thnd, like some one had been struck with something, and discovered the defendant George Morrison was on the ground with the deceased standing over or near him leaning slightly forward; defendant says the deceased struck him with his pistol and knocked him down, and he feared the deceased was going to shoot him and he immediately drew his pistol and fired while lying on the ground.

All of the testimony for the state and the defendants admits the defendant George Morrison was on the ground with the deceased near him at the time the shot was fired, and that the deceased was armed, his pistol being found near his feet after a light was secured and the parties gathered around the scene of the difficulty.

The defendant urges that the admission, over his objection, of the testimony of the evidence taken at the preliminary trial of Dee McCuen was prejudicial error, for the reason that the testimony ivas not sufficient to show due diligence had been used by the state. McCuen’s home, as shown by the record, was at Woodville, but he was somewhere in the state working for the Prairie Pipe Line Company. The witness Dillow, who tried to serve him, was asked if he got in touch with the pipe line company, and answered, “No, sir, we had no authority to do that.” The sheriff also stated he made inquiry at Woodville as to where Dee McCuen was, and they said he left three or four months ago, and was in Oklahoma or Kansas; he did not talk with his father or mother, talked with his brother who said he was supposed to be in Oklahoma City or Kansas working for an oil company. Witness further stated, “I did not try to locate him through the company he was working for, I could not get service on him that way.”

They then showed by the court clerk that a subpoena had been issued. The county attorney testified he went to Woodville to look up his witnesses and was advised that Dee McCuen was working for the Prairie Pipe Line Company, and “I did not know where I could find him; he was in Oklahoma, or might be up in Kansas.” On cross-examination the county attorney stated he did not make any effort to locate him through the pipe line company.

This testimony fails to show diligence on the part of the officers of the state to locate the witness. This court will take judicial notice of the fact that if the witnesses were working for a pipe line company or an oil company, that the company would have a record of the witnesses’ whereabouts, and it would be no trouble to locate him, as all companies keep a list of employees and where they are assigned for work.

It is further contended that there was not sufficient-predicate laid for the admission of the evidence in the transcript, that it was not made to appear by competent evidence that the witness McCuen was absent from the state, sick, or unable to attend the trial, and no proper diligence to procure the attendance of the witness was used. Davis v. State, 20 Okla Cr. 203, 201 Pac. 1001; Golden v. State, 23 Okla. Cr. 243, 214 Pac. 946.

It has been held by this court in many cases that where a witness has testified at the preliminary against an accused, and has been cross-examined, or the privilege of cross-examination offered, if at a subsequent trial involving the same issue it is satisfactorily made to appear that the witness has died, has become insane, or has permanently left the state, without collusion or procurement, or .is sick and unable to attend, or his whereabouts cannot with due diligence be obtained, a transcript of the testi'-mony of such witness may be introduced as his evidence, and the use thereof will not be a violation of the constitutional right of the accused to be confronted with the, witnessés against him. Davis v. State, supra; Exleton v. State, 30 Okla. Cr. 224, 235 Pac. 627.

• Before the transcript of the evidence of a witness given: at a former trial is admitted, there should be a showing that the witness cannot be produced,- due to some one of the exceptions named. The admission of this class of evidence should be strictly observed since it is obvious that the privilege is subject to abuse and that the witness who is perfunctorily heard at the preliminary hearing might be purposely out of reach of the process of the court, where it might be of interest to the state to avoid further cross-examination by use of the transcript of their former testimony.

It is generally held that where the witness is temporarily absent from the state, or out of the jurisdiction of the court, and proper diligence has not been observed to procure his attendance, a transcript of the evidence' should be rejected. ■■ .

The rule admitting- a transcript of evidence' of an absent witness as his deposition on final trial grows out of circumstances of necessity, and such transcript or deposition should be excluded in all cases where the witness can be. produced in person. One of the reasons of this is the accused may desire to cross-examine the witness' further,.and the jury, if it is possible, should have the opportunity to observe the witness and his demeanor on the witness stand..

. - We do not think the state used due diligence in trying to secure the attendance of the witness McCuen, as the testimony- of the state clearly shows no effort was made to learn from the oil company for whom he was working his whereabouts in the state. We hold that the admission of the transcript of evidence of the witness McCuen, taken at the preliminary trial, was prejudicial to the rights of the defendant. Davis v. State, supra; Alexander et al. v. State, 51 Okla. Cr. 1, 299 Pac. 237; Golden v. State, 23 Okla. Cr. 243, 214 Pac. 946.

It is next contended by the defendant that the testimony of John Ayers and Dee McCuen was in the nature of hearsay evidence, and was not a part of the res gestae. The statements claimed to have been made by the deceased in the presence of John Ayers and Dee McCuen were statements made in the absence of the defendant George Morrison, and did not relate to the difficulty between the defendant and the deceased.

The statements claimed to have been made by the witnesses in their testimony being as follows (John Ayers stated) :

“I Avas at the basket ball game and saw Sim Cook a short while- before he was killed; neither George or Felix .Morrison was present at the time of the conversation. Cook came up and asked me if I had seen Dee McCuen, and I told him I did not think I had; he asked me if McCuen was going to play that night, and I said, No’; he said, ‘Have you seen McCuen?’ and I replied, ‘No’; he kindly looked at me and I look at him, and he said, ‘The reason I am asking the question I have information that George Morrison is going to deliver Dee McCuen some whisky tonight, and I am going tó try to catch him if he does.’ ”

Dee McCuen’s testimony taken at the - preliminary trial, complained of as being hearsay evidence, stated he was at the schoolhouse the night Sim Cook was killed :

“I had seen George Morrison that evening; I went to see him looking for some whisky; he told me he did not have any whisky; he told me he would see me that night; we were both at the meeting that, night.”
“Question by County Attorney: With that you understood he would deliver it that night, that is what he said he would do? A. He said he would see me that night. Q. You understood that is what he meant?”

Witness further stated he had bought whisky from George Morrison one time about two months prior to the night of the difficulty. The testimony of both McCuen and Ayers was hearsay.

Hearsay evidence is not admissible. It tends to prejudice the jury against a defendant and leaves the defendant in a position where he cannot contradict the hearsay statements made by the witness. In this case the hearsay statements made by the witnesses are highly prejudicial to the rights of the defendant George Morrison, for the reason that the facts in this case show that the defendant, at the time the shot was fired, fired from the ground and while the deceased was standing over him with his pistol, and there is a total failure of testimony in the record showing that the trouble between the deceased and the defendant arose from any attempt to arrest George or to try to find whisky. The defendant George Morrison testified that the only difficulty between him and the deceased was a small debt the deceased claimed he owed him.

This court has repeatedly held that hearsay evidence which has been admitted, which contributes to the verdict of guilty, the reception of such evidence does not constitute harmless error, but is grounds for reversal. McRae v. State, 8 Okla. Cr. 483, 129 Pac. 71; Bohannon v. State, 24 Okla. Cr. 103, 215 Pac. 1078; Ward v. State, 17 Okla. Cr. 713, 188 Pac. 894.

The statement of the witnesses Ayers and McCuen was hearsay and inflammatory, and prejudiced the rights of this defendant.

We hold that the testimony in the case as to Felix Morrison is wholly insufficient to sustain the verdict and judgment, and the case is remanded, and as the conviction of Felix Morrison of any offense cannot be legally had under the evidence in the case, the trial court is directed to enter an order discharging the defendant Felix Morrison in said case.

We further hold that the admission of the testimony of Dee McCuen, taken at the preliminary trial, was inadmissible and inflammatory, and contributed largely to the conviction of George Morrison; and that the evidence of John Ayers was incompetent and inadmissible. For the reasons herein stated, the case as to George Morrison is reversed and remanded, with directions to proceed further according to law.

EDWARDS, P. J., not participating.

DOYLE, J., concurs.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    MRS. O. L. HARMAN v. STATE.
    No. A-8955.
    March 20, 1936.
    Rehearing Denied April 24, 1936.
    (60 Pac. [2d] 404.)

      Hickman & Ungerman and W. A. Chase, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Carl D. McGee, Co. Atty., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was adjudged guilty of a direct contempt by the district court of Pawnee county and was sentenced to pay a fine of $250 find to'serve 30 days in the county jail.

Defendant was .a witness'for- the state in State v. Kennamer in the district court, wherein defendant in that case was being tried on a charge of murder. Kennamer v. State 59 Okla. Cr. 146, 57 Pac. (2d) 646. The conduct of defendant, when called as a witness, is the basis for this contempt proceeding. When sworn as a witness, she refused to testify; further, while on the stand, when counsel for defendant in the case then on trial was addressing the court, she interrupted in a loud and insolent manner, saying: “Mr. Moss, you are a liar.” This conduct interrupted the decorum of the court and probably would have resulted in a mistrial except for the fact that defendant’s counsel in the case then on trial expressly waived the right to a mistrial and agreed the case might proceed. The court, thereupon, ordered this defendant be held in jail to enable counsel for the state to investigate her connection with the matter and for. further proceedings in contempt. On the following day the county attorney filed a complaint as for a direct contempt, which was by the court set for hearing for a later date and bail was fixed and made. The contempt matter was by agreement argued before the judge on questions of law, at Tulsa, who, at that time, informed counsel a demurrer to the complaint then presented might be filed, but that the contempt proceedings would not be based on the complaint. On the convening of the court in Pawnee county for consideration of the contempt, no consideration was given to the complaint or the demurrer thereto, but the court made a statement in the record of the conduct of defendant constituting the contempt, in part as follows:

It appearing to the court that on February 13, 1935, while the court was in session and a jury was in the box and the trial of Phil Kennamer on a charge of murder was in progress, Mrs. O. L. Harman having been duly sworn, was on the witness stand, and after having answered a number of preliminary questions, the following proceedings were had, to wit: ‘Q. (By the County Attorney) : Do you know the defendant, Phil Kennamer?’ The witness answered: ‘Honorable Judge, I am afraid to testify in this case; my life has been threatened, and my family — I am afraid to testify in this case and I want to be excused from it. My family has been threatened time and time again in the last 24 hours, they have been threatened with death, and that they would get me if I get up and testify; they have had that threat put to them time and — ’ ”

Whereupon the court admonished her as follows:

“Mrs. Harman, you have been subpoenaed here and you must answer the questions now as they are asked.’7

Whereupon the witness answered:

“I am sorry I will have to refuse. My children mean more to me than anything on earth and I will have to take whatever the penalty is. But when my little girl says to me, ‘Mother, don’t testify in this case.’ They have called and told them, they have told my children they would kill them and kill me.”

Thereafter, and after the jury had retired from the courtroom, in charge of the bailiffs, and while said witness was still on the stand, Mr. Moss, attorney for the defendant, referring to the witness, stated to the court: “She endeavored to sell her testimony to the defendant in this lawsuit.” Whereupon the witness, without being requested to make any statement, stated in a loud voice: “Mr. Moss, you are a liar.” The court then stated in substance that he adjudged the said defendant to be guilty of direct contempt. The court, by reason of the foregoing facts, then stated that she was given an opportunity to be heard and show cause why she should not be punished for contempt.

Then follows a lengthy hearing, in which numerous witnesses testified for the purpose of excusing or mitigating the contemptuous conduct of defendant, and at the conclusion thereof the court in his judgment recited fully the facts upon which the contempt was based, and assessed the punishment as stated.

Two assignments of error are argued: First, that the court erred in not proceeding on the written complaint. Second, that the punishment is excessive. These assignments will be discussed in the order presented.

Under the first assignment defendant’s counsel contend the written complaint is insufficient and does not state a contempt under section 1956, O. S. 1931, and further that when a written complaint had been filed the court could not then proceed as for a direct contempt, but was limited to the written complaint and must proceed as for an indirect contempt. They admit, however, that the court had the power, at the time of the contempt, to adjudge defendant guilty and to assess punishment after an opportunity had been granted her to be heard; and further, that no formal written accusation was necessary if the court had proceeded summarily at the time. Counsel frankly state they are unable to support their contention by any authority other than the wording of section 1956, O. S. 1931, which, among other things, provides that a direct contempt “may be summarily punished as hereinafter provided for.” It is argued that unless the court summarily punishes for a direct contempt it is condoned and that a “summary punishment” means an immediate and instantaneous punishment as distinguished from the ordinary course, citing Gaines v. Travis, 8 N. Y. Leg. Obs. 45, 49. Upon this point counsel insist that the court, by ordering defendant committed at the time of the alleged contempt, in fact assessed punishment and had no power to further punish after hearing. People v. O’Brien, 196 Ill. 250, 63 N. E. 667.

Section 1956, O. S. 1931, defines “contempt.”

Section 1957 is:

“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court.”

Section 1958 provides:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”.

In Blanton v. State, 31 Okla. Cr. 419, 239 Pac. 698, 700, this court held:

“Contempts are classified and divided as ‘civil’ con-tempts and ‘criminal’ contempts. The distinction between ‘civil’ and ‘criminal’ contempts is this: The former consists in disobeying some judicial order made in the interest of another party to a proceeding. The latter consists of acts disrespectful to the court, or obstructive to the administration of justice, or calculated to bring the court into disrepute. In the case at bar, the order violated not being made for the benefit of any party to any litigation or matter pending in the court is not a ‘civil’ contempt, but is an act obstructive to the administration of justice, and is a criminal contempt. Gudenoge v. State, 2 Okla. Cr. 110, 100 Pac. 39.”

Contempts are further classified as direct and indirect contempts. Section 1697, Comp. St. 1921 (section 1956, O. S. 1931), is as follows:

“Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, * * * and the refusal to answer any legal or proper question.”

The refusal of the defendant to answer a proper and legal question was a direct contempt. Her further statement made while Mr. Moss was addressing the court, “Mr. Moss, you are a liar,” in a loud and offensive and insulting manner, was also a direct contempt. The word “insolent” is defined to he, anything said or done rudely; saucy; insulting; abusive; offensive. The refusal of a witness to testify is an act obstructive to the administration of justice and therefore a criminal contempt. It then follows that the acts, conduct, and manner of the defendant in this case constitute a direct criminal contempt.

The proceeding in a case of direct contempt is not specifically provided for in either the Constitution or the statutes. In several cases this court has set out the proper practice. - In Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, 821, Ann. Cas. 1916A, 719, it was said:

“That clause of section 25 of the Bill of Rights in question does not prescribe any form, nor require any characterization of the act charged as a contempt in order to confer jurisdiction, hut it does require that an opportunity to be heard must be given before a penalty or punishment is imposed for contempt. In the absence of some requirement of the statute prescribing the manner or mode of hearing, in order to. confer jurisdiction on the court to punish for contempts, committed in the presence of the court, we think that it would be sufficient if the contemner be arraigned and asked whether he has any legal cause to show why he should not be adjudged guilty of contempt of court.”

In Ex parte Murray, 54 Okla. Cr. 437, 23 Pac. (2d) 220, 221, it was held:

“A direct contempt requires no formal charge, since the act constituting the contempt is in the immediate view, hearing, and presence of the court.”

See, further, Moore v. State, 41 Okla. Cr. 310, 272 Pac. 1032; Lynn v. State, 38 Okla. Cr. 313, 260 Pac. 1069; Ex parte Dawes, 31 Okla. Cr. 397, 239 Pac. 689; Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719.

There is no merit in the contention that a direct contempt shall he finally disposed of by a finding of contempt, the hearing of the contemnor, and the assessing of punishment at the time it is committed. The power to punish summarily (section 1956, O. S. 1931) is permissive and not mandatory. A court is not required to suspend the trial of a case and conduct a hearing in contempt, but may postpone such hearing reasonably, and by so doing it does not lose jurisdiction. Ex parte Murray, supra; 13 C. J. p. 61, § 84; Id., p. 79, § 114; People ex rel. Platt v. Rice, 74 Hun. 179, 26 N. Y. S. 345; Gompers v. U. S., 233 U. S. 604, 34 S. Ct. 693, 58 L. Ed. 1115.

Upon the second assignment, that the punishment is excessive, counsel merely refer us to the record and state that inasmuch as the trial of the case then pending was not affected, the interests of justice would be served by a less severe punishment. The voluminous record in this contempt proceeding, which comprises upward of 300 pages, discloses that an important murder case was being tried in a county to which it had been moved by change of venue; that both the state and the defendant in that case had proceeded at great effort and expense to prepare for trial; that after a prolonged examination a jury had been selected. It was then a matter of grave import and concern, both to the state and the defendant, that the trial proceed in an orderly manner and without any misconduct on the part of witnesses or others that might result in a mistrial or in the committing of error which might necessitate the granting of a new trial, or require a reversal after trial. No credit is due defendant that her contemptuous conduct did not bring about such result. Orderly trials and proceedings in court are not to be obstructed and nullified by whims or temperamental outbursts of witnesses or others. The administration of justice requires decorum and order. Contempt and disorder calls for severe punishment. We are satisfied the punishment assessed is not excessive, but, on the contrary, is reasonable and humane.

The case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


text:
    TED CROWDIS v. STATE.
    No. A-8986.
    May 15, 1936.
    (57 Pac. [2d] 1200.)
    Meacham, Meacham & Meacham, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of possession of intoxicating liqnor with intent to sell, and was sentenced to pay a fine of $50 and be incarcerated in the county jail for a period of 30 days.

The testimony on behalf of the state shows that the officers went to the home of the defendant and searched it and found ten pints of bottled in bond whisky, a gallon and a half of what was classed as com whisky, and 133 pints of home-brew. Some of the whisky and home-brew was found in the cellar under the house, and the other in different places in the home.

The defendant, testifying in his own behalf, stated the ten pints of bottled in bond whisky had been left at his place for Houston Dickey. The defendant did not know the name of the man he claims brought the whisky to his home and left it for Houston Dickey.

Houston Dickey, testifying in behalf of the defendant, stated he had arranged with the man and paid him $8 for the ten pints of whisky to be delivered at the defendant’s home; he did not know the man’s name from whom he bought the whisky, and could not give a definite description of the man, nor could the defendant describe the man with any accuracy who he claims brought the whisky to his home for Dickey. The corn whisky and home-brew the defendant stated he had for the use of himself and family. This is in substance the testimony.

The defendant has assigned thirteen errors which he insists were committed by the trial court, and are such erros as the defendant believes entitles him to a reversal. His first assignment of error is that the evidence is wholly insufficient to sustain the verdict. With this contention we cannot agree.

If the witnesses for the state are to be believed, the defendant had more whisky in his possession than he was entitled to have under the law, and a sufficient quantity to raise the presumption of intent to sell.

It is next urged by the defendant that the court erred in admitting incompetent, irrelevant, and immaterial testimony which was prejudicial to his rights. The incompetent, irrelevant, and immaterial evidence alleged to have been admitted to his prejudice was the five cartons of home-brew. The state witnesses admitted they did not know the alcoholic contents of the home-brew, and that it had not been analyzed. The court instructed the jury to disregard the question of the home-brew, as there was no proof that the purported home-brew contained more than 3.2 alcohol, and they should not consider the same for any purpose. The defendant insists that, notwithstanding the court directed the jury to disregard any evidence as to the possession of the home-brew, the county attorney in his closing argument committed reversible error when he argued to the jury that he did not have the beer analyzed to prove the alcoholic contents because he wanted to save the county the expense of analyzing the brew, and that the defendant had, in addition to the beer, two and one-half gallons of whisky.

It is further argued by the defendant that, notwithstanding the court admonished the jury not to consider the home-brew, after the county attorney had argued the question of the admitting of the evidence of the home-brew to the court, in the presence of the jury, the court withdrew said admonition to the jury and approved the argument of the county attorney. This action of the court, in the absence of any testimony as to the alcoholic content of the home-brew, the defendant insists was reversible error, and was an .improper argument for the county attorney to make, and prevented the defendant from having an impartial trial.

The defendant in presenting his argument as to the statements made by the county attorney in the trial of the case fails to show the closing argument of the county attorney was not in reply to the argument made by the attorney for the defendant, and does not show any of the argument made by the attorney for the defendant, which the county attorney insists his argument was in reply to.

In Sanders v. State, 46 Okla. Cr. 298, 287 Pac. 842, in the fourth paragraph of the syllabus, this court said:

“When the entire argument on both sides is not before the court, and the county attorney, commenting on the testimony, contends that his argument is based on the argument of defendant’s counsel, and is in line with the testimony in the case, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstances, the presumption is that the trial judge ruled that such argument was permissible, and the burden is upon the defendant to affirmatively show error in the ruling of the trial court.”

Carefully considering the record before this court, we hold that the argument of the county attorney, based upon the facts in this case, was not prejudicial to, the rights of this defendant. Payne et al. v. State, 21 Okla. Cr. 416, 209 Pac. 334; Wilson v. State, 24 Okla. Cr. 332, 217 Pac. 885.

Some of the argument of the county attorney was improper, and, as the court had directed the jury to disregard any statement made with reference to the home-brew found at the defendant’s home, the court should have admonished the county attorney to refrain from any argument on the question of home-brew.

In the trial of lawsuits it is the duty of the county attorney to confine himself to the competent testimony admitted, and, when he refuses to do so, it is the duty of the court to direct the county attorney to confine his arguments to the testimony admitted.

The defendant next complains of the instructions of the court, and contends that the court in its instructions failed to define prima facie evidence. Where counsel for the defendant believed the instructions were not sufficiently full or definite, he should have prepared complete and definite instructions and submitted them to the court. Nance v. State, 43 Okla. Cr. 247, 278 Pac. 357, and cases therein cited.

Where the court instructs the jury, and counsel fails to request additional instructions, the case will not be reversed on this ground. If counsel for the defendant is of the opinion that additional instructions should be given to the jury, it is his duty to reduce them to writing and submit them to the trial judge and request they be given. If he fails to do this, a conviction will not be reversed unless this court is of the opinion, in the light of the entire record and instructions of the court, that by. failure of the trial court to instruct the jury upon some material question of law the defendant has been deprived of a substantial right. Campbell v. State, 42 Okla. Cr. 156, 274 Pac. 1094.

The testimony of the defendant and Houston Dickey, as to Dickey having ordered ten pints of bottled in bond whisky to be delivered at the defendant’s house, in view of the fact that neither of them could describe the man with sufficient accuracy that he might be identified, does not seem reasonable, and it is apparent the jury doubted the truthfulness of their statements.

The evidence shows the defendant had possession of two and a half gallons of whisky, which under the law is presumptive evidence of his intent to barter, sell, give away, or otherwise dispose of the same to others, and the quantity of whisky he had is sufficient to overcome the presumption of innocence. The evidence is amply sufficient to sustain the conviction. The court imposed the minimum punishment under the law. The defendant was accorded a fair trial, and the errors in the record are not sufficient under the testimony to warrant this court in reversing the case.

The judgment is affirmed.

DOYLE, J., concurs. EDWARDS, P. J., absent, not participating.


text:
    FAY LAKE v. STATE.
    No. A-8961.
    May 15, 1936.
    (57 Pac. [2d] 1199.)

      Ward & Ward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of grand larceny, and sentenced by the court to serve a term of four years in the state penitentiary.

S. J. Lackey, testifying for the state, stated:

“I live about four miles east of Keystone, on the Braden lease'; on or about the 7th day of September, 1934, I handled some tubing; the tubing was in the rig and I laid them down some six or eight feet from the rig, which was located about a quarter of a mile from my home; on the 7th or 8th of September, 1934, I heard the noise of a truck in the direction of where the tubing was piled by the rig, and the next morning when I went to the derrick I discovered all the tubing was gone; I saw shoe tracks where they had gone back and forth from where the truck seemed to have stopped to where the tubing was piled; I followed the truck tracks five or six miles through the by-roads, and lost them over this side of Mannford.”

D. C. Robnett, testifying for the state, stated:

“I am an employee of the Frisco railroad; I was in the office of the chief of police on the 8th day of November, 1934, when the defendant Fay Lake made and signed the statement admitting he had hauled the pipe away from where it was located.”

E. G. Thomas, testifying for the state, stated in substance the same as the witness D. C. Robnett, as to the statements o-f the defendant made in their presence, which was reduced to writing by a stenographer. The statement of the defendant as stated by Eobnett and Thomas is the only evidence of any kind or character offered by the state to connect the defendant with .the larceny of the tubing. The defendant did not testify.

Many errors have- been assigned by the defendant. Among others, that the court erred in overruling his motion for a new trial.

After a careful examination of the record, the only question this court finds necessary to consider is the question raised by the defendant on his motion for a directed verdict, on the ground that the evidence is insufficient to sustain a conviction. It is shown by the record that some tubing belonging to the Braden estate was taken from where it had been placed by S. J. Lackey, who testified, for the state. No witness testified for the state to show that the defendant was seen in the neighborhood where the tubing was located, or was seen hauling the tubing from its location, nor is. there any evidence offered by the state to connect the defendant with the taking except the statement in the nature of an extrajudicial confession taken by the officers Eobnett and Thomas.

The defendant, in presenting this question in his brief, insists that the extrajudicial confession claimed by the state to- have been made to the officers is not sufficient to prove the corpus delicti, in the absence of any other proof or circumstances, tending to connect the defendant with the taking of the tubing.

In Boggess v. State, 46 Okla. Cr. 283, 287 Pac. 764, this court in the third paragraph of the syllabus, said:

“The corpus delicti in criminal cases cannot be established by the confession of the defendant alone; there must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had. The evidence of the state is insufficient to establish the corpus delicti, there being, no corroboration of the accomplice.”

In Blakemore v. State, 39 Okla. Cr. 355, 265 Pac. 152, this court said:

“The corpus delicti in a criminal case cannot be established by the confession of the defendant alone. There must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had.” Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287; Waide v. State, 13 Okla. Cr. 165, 162 Pac. 1139; Mackey v. State, 30 Okla. Cr. 31, 234 Pac. 782; Brown v. State, 18 Okla. Cr. 509, 196 Pac. 967; Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, 1065.

This court has many times held that an extrajudicial confession is not sufficient to establish the corpus delicti.' There being no evidence except the extrajudicial confession, we hold the evidence is insufficient to satisfy the requirement of the law. The conviction cannot stand. The case is reversed and remanded..

DOYLE, J., concurs. EDWARDS, P. J., absent, not participating.


author: DOYLE, J.

text:
    N. P. JOHNSON v. STATE.
    No. A-9045.
    May 18, 1936.
    (58 Pac. [2d] 156.)

      John M. Goldesberry and Gerald B. Klein, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, herein referred to as the defendant, was convicted of manslaughter in the second degree, and his punishment fixed at confinement in the Tulsa county jail for a period of one year. The information, omitting formal parts, charges that N. P. Johnson on the 6th day of November, 1934, in Tulsa county, “did unlawfully, wilfully and feloniously, and without a design to effect death, and in a heat of passion and in a cruel and unusual manner, did then and there effect the death of one J. D. Thomason, by then and there striking the said J.- D. Thomason with his fists, in and upon the neck and mouth, with such force and violence that the said J. D. Thomason was knocked to- the sidewalk, and thereby causing the skull of the said J. D. Thomason to be fractured, then and there and thereby inflicting in and upon the head, neck, body and mouth of the said J. D. Thomason, certain mortal wounds from which mortal wounds the said J. D. Thomason did then and there languish and die, contrary to,” etc.

The record shows that on the first trial of this case the jury failed to agree, and on April 12, 1985, the court declared a mistrial and directed the case to be set on the next jury docket.

On June 25th the court overruled defendant’s motion for a new trial and rendered judgment in pursuance of the verdict.

This case comes here -upon exceptions taken to the rulings of the court upon the admission of evidence on the part of the state; exceptions taken to certain instructions given and instructions refused; exceptions taken to remarks of the assistant county attorney in his closing argument, and that the verdict of the jury was contrary to the law and the evidence.

The following facts appear from the evidence: The defendant with his wife and two daughters resided at No. 2624 East Eighth street, Tulsa. The deceased was employed by the Federal Housing Administration as a canvasser or enumerator, whose duty it was to take a certain section of the city assigned to him and cover it by calling at each house to solicit information as to whether any repairs were to be made there, and, if the party living in the house was not the owner, to take the owner’s name.

On election day, November 6th, J. D. Thomason called at the home of the defendant, Avho at the time was talking on the telephone, and his wife answered the call at the door. The deceased told her about what he wanted, she told him the house did not belong to them, that they were only renting it, he asked her who the owner was, she turned and asked the defendant the name of the owner, and he told her. Shortly after the defendant started out to go to the post office substation to mail a letter. Passing out through the screen door, he told the deceased that they did not own the property and asked him to go on about his business and not disturb his Avife any longer. He then went on to mail his letter; returning about 20 minutes later, he found the deceased still there talking to his wife on the porch. The deceased handed a paper to her and said, “Sign it”; the defendant said, “You don’t have to sign anything, Don’t sign it.” As he stepped up. on the porch, he said to the deceased, “I have told you two or three times to go on about your business.” An altercation ensued when about midway between the steps of the porch and the step to the sidewalk, the defendant struck the deceased with his fist in the face, knocking him down. He was taken to a hospital. On the Friday following Mr. Thomason died; an autopsy showed that hemorrhage of the brain caused death.

The only state’s witness claiming to be an eyewitness was Mrs. Birdie James. She testified:

“I was visiting my two daughters, they live in the same house at 2626 East Eighth street, which is the second door west of the home of the defendant. I was sitting in the swing on the front porch. I saw this old man Thoma-son come out of the house and Johnson was right back of him. I saw Johnson knock Thomason’s hat off and his glasses too. Johnson hit him on the back of the head with his right hand. Mrs. Johnson went to where he was and wiped the blood from his face. A car came there and they put him in the car and took him to a hospital. About the time of this difficulty I saw the mailman pass.”

Dr. D. O. Smith testified that he attended the deceased, and described the wounds as follows:

“There was one in the face, right side of the upper lip, extending upwards, three upper teeth were out, and there was an abrasion about three-fourths of an inch long, with p puncture wound about the size of a dime about two inches back on a level with the top of the right ear. That this wound most likely caused the hemorrhage that resulted in death.”

Eugene Hilburn testified:

“I was taking people to the polls out there. I drove up to Mr. Johnson’s house. Mr. Thomason was sitting on the step to the sidewalk. Mrs. Johnson was taking care of him. She said, ‘Call a doctor and bring a glass of water.’ I went in to call a doctor and Mr. Johnson told me to take him to the hospital. Mrs. Johnson, another fellow, and myself put him in my car and we took him to the hospital. Arriving there, Mrs. Johnson got him a room and made arrangements for him to be treated.”

At the close of the state’s evidence, the defendant demurred to the evidence and moved the court to direct the jury to return a verdict of not guilty upon the ground that the evidence wholly fails to show the use of any dangerous weapon and fails to show that the killing was done in a cruel and unusual manner. The demurrer was overruled. Exception.

H. O. Hostetter testified that he was a mail carrier in the district including East Eighth street, was engaged in his afternoon trip on election day. The first thing that directed his attention was a scream, was walking and •looking over that way, and saw three persons walking from the porch steps. Mrs. Johnson was about on the bottom step. The two men took three or four steps close together, shoulder to shoulder, then Mr. Thomason swung ‘around quickly, and there was a struggle, did not see a blow struck, but Mr. Thomason fell across the concrete walk, but was up on his elbow when he passed. That he had two or three houses to serve, and, when he came back, Mr. Thomason was sitting up, had a glass of water and was rinsing his mouth. Mrs. Johnson was kneeling on the sidewalk by him. That he would judge it was 12 feet from the porch steps out to the step down to the sidewalk.

Mrs. Johnson, wife of the defendant, testified:

“I was in the bedroom. Mr. Johnson was busy at the telephone and I answered a call at the door. I had been ill, and it was the first day I had been up for several days. I almost had a nervous breakdown. The caller told me he was Mr. Thomason and was taking a census of homes for the Federal Housing Plan. He said the house needed paint. I said, ‘We don’t own it, we just rent it,’ and I told him why we could not put any repairs on the place. He asked for, and I gave him, our names. He took down- the number of the house and the name of the man who owned it. I told him he must be the fifth or sixth person who came here the last two weeks getting that same information. He asked me who I paid the rent to. I told him, saying, ‘I guess that is about all,’ and started to close the door. He said, ‘Oh, no-, it is not all, I am sent out to get this information, that is what I am paid for, and I am going to get it.’ Mr. Johnson put on his coat and hat. He told Mr. Thomason that was all the information he could get, that he could not come on people’s porches and talk to them like that, and as he went out the door he told him to go on about his business. Mr. Johnson had a letter in his hand and was hurrying away to mail it before tbe pick-up over there. Mr. Johnson was gone about fifteen minutes, Mr. Thomason said that I misunderstood what- he meant in the first place, asked other questions and was writing down the information. Just before Mr. Johnson came back he asked me if I would sign this paper, I stepped out on the porch and said, ‘Do I have to sign this?’ He said, ‘Yes, you have got to sign it.’ Just as was saying that Mr. Johnson was . coming up the walk, and he said, ‘Oh, no, don’t you sign anything.’ He came up on the porch, picked up the papers on the stub post and handed them to Mr. Thomason and said, ‘Now, you take your papers and get on off from here, you have been here long enough, and caused enough trouble,’ and he took him by the arm and led him down the steps of the porch and said, ‘Now, you go on off.’ Mr. Thomason suddenly turned around and said he could not put him off like that, just something tot that effect. Mr. Johnson started on to put Mr. Thomason off the place. I screamed and told Mr. Johnson to go in the house. I ran in and got a glass of water and a towel. Gene Hilburn drove up and I sent him in for a glass of water and told him to call a doctor. He came back presently and said Mr. Johnson said we must take the man to the hospital. He had taken his false teeth out and dropped them in the water glass. We took him in Gene’s car. I paid for a room and made the arrangements for him to be taken care of at the hospital.”

The testimony of the defendant is substantially the same as that of Mrs. Johnson with reference to what occurred at the door of his home prior to- the time he left to mail the letter.

He further testified:

“I went through the front door. I knew my wife was nervous, and I could not see any further questioning was necessary. I had told him we were not going to do anything. As I started out, I told him to go on about his business and let us alone. I told my wife to go back aud lie down. I said, ‘Don’t bother with him any more.’ Wlien I returned, she was out- on the porch and this man was between her and the door. He had a paper in his hand and a pencil, insisting that my wife take the paper and sign it. I said, ‘You don’t have to sign anything.’ I picked up some papers he had left on the stub porch column, handed them to him, and took hold of him, turned him around, and started him down the porch steps, and told him to go on about his business. I followed along behind him a step or two. All of a sudden he took off his glasses, turned around facing me, threw back his left hand as if to strike, and said, ‘You are not a man enough to put me off.’ I struck him in the mouth with my fist, and he staggered backwards, stumbled, and fell near the sidewalk. At my wife’s suggestion I went in the house and tried to call Dr. Roberts, our family physician, both at his office and his home, but was unable to locate him. When the Hilburn boy came in, I told him to tell Mrs. Johnson to take the man to the hospital. I had no enmity towards the deceased and never intended to do him any serious injury. I didn’t attempt to do him any injury until he turned on me, and then I struck him in self-defense and for the purpose of evicting him from my premises and home, I had directed and ordered him to leave several times previous, which he had refused to- do.”

The defendant called a number of witnesses to show his general reputation as a peaceable, law-abiding citizen was good, and the testimony of these witnesses covered a period of from ten to fifteen years while a resident of the city of Tulsa. The state put in no evidence to rebut that of the defendant as to previous good character.

The transcript of the testimony covers over 400 pages, but the foregoing is in substance the material testimony in the case.

A careful examination of the record and briefs convinces us that the trial court erred in refusing to give the following instructions:

“Defendant’s Requested Instruction No. 1.
“Homicide is not without authority of law but is justifiable under the law of self defense when committed by any person when resisting an attempt to commit an assault upon him and there is reasonable ground on the part of the person doing the killing to apprehend a design or purpose of the person killed to assault him and do him some personal injury and it appears to the person doing the killing that there is imminent danger of bodily injury being done him by the person killed and you are instructed in this connection that .any person who is unlawfully assaulted by another is justified in using all reasonable force necessary to repel such assault or attack as the same reasonably appears to him at the time and that if the person so assaulted uses no greater force than reasonably appears to him necessary at the time to repel such attack or assault, such person would be justifiable under the law of self defense provided the killing was not done in a cruel and unusual manner or by means of a dangerous weapon.
“Rejected. •
“Exception allowed to Defendant.
“Harry L. S. Halley, Judge.
“Defendant’s Requested Instruction No. 2.
“You are instructed that if you believe or have a reasonable doubt thereof that at the time of the alleged difficulty the deceased, without any act upon the part of the defendant, showing a purpose to do bodily harm to the deceased, did then and there by some act upon the part of the deceased then done, make it reasonably to appear to the defendant, viewed from his standpoint, that it was then and there the purpose of the deceased to assault him or to do him some personal injury, then the defendant had the right to defend himself against such an assault, if it was then and there necessary or apparently so, and if he did so strike the deceased under these circumstances, then you should find the defendant not guilty; and unless you find beyond a reasonable doubt that the defendant unlawfully assaulted the deceased, under these instructions, you must return a verdict of not guilty.
“Rejected.
“Exception allowed to' Defendant.
“Harry L. S. Halley, Judge.
“Defendant’s Requested Instruction No. 3.
“You are further instructed that homicide is excusable in the following cases: When committed by accident and misfortune, in the heat of passion, upon sudden and sufficient provocation, or upon any sudden combat, provided that no dangerous weapon is used and the killing is not done in a cruel and unusual manner; and in this connection you are instructed that, if the homicide was committed by the defendant by accident and misfortune in the heat of passion, upon any sudden or sufficient provocation, or upon a sudden combat, and that the killing Avas not done in a cruel and unusual manner and not with a dangerous Aveapon, the homicide would be excusable, and you should find the defendant not guilty.
“Rejected.
“Exception alloAved to Defendant.
“Harry L. S. Halley, Judge.
“Defendants Requested Instruction No. 4.
“You are' instructed in this case that the deceased had a right to go and be upon the premises of the defendant for a lawful and legitimate purpose, and had a right to remain there for any reasonable length of time as long as he did so for such laAvful and legitimate purpose and- conducted himself in a lawful and legitimate manner. HoAveArer, in this connection, you are instructed that if a dispute or difficulty arose Avhile the deceased was upon the premises of the defendant for such lawful and legitimate purpose and the defendant ordered or directed the deceased to leave his premises and the deceased refused or failed to do so immediately ■ thereafter, then, in that event, the deceased became and was a trespasser upon defendant’s premises immediately upon his failure or refusal to leave same after being' ordered or directed so to do and you are further instructed in this connection that if you find from the evidence in this case or have a reasonable doubt thereof, that the defendant ordered or directed the deceased to leave his premises and that the deceased failed or refused to do so, then the defendant had a right to use such force as to him seemed reasonable and necessary to evict the deceased from his premises so long as he did not purposely and in a cruel and unusual manner take human life, and if you find and believe under the evidence in this case or have a reasonable doubt thereof that the deceased became and was a trespasser on the premises of the defendant, as above defined to you, and that the defendant, in attempting to evict the deceased from his premises, used no more force than seemed'to him reasonable and necessary to evict the deceased from his premises or have a reasonable doubt thereof, you should find the defendant not guilty.
“Given in part.”

This prosecution is based on sections 2223 and 2228, Penal Code (St. 1931), which read as follows:

“2223. Homicide is manslaughter in the first degree in the following cases:
“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”
“2228. Every killing of one human being by the act, procurement or culpable negligence of another, which under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

Another provision of the Penal Code, § 2235 (St. 1931), reads:

“Homicide is excusable in the following cases:
“First. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent.
“Second. When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, provided that no undue advantage, is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.”

.Section 1867 provides:

“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following, cases. First. * * *. Second. * * *. Third. When committed either by the party about to be injured or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”

We do not deem it necessary to consider in detail the exceptions taken to certain instructions in No. 30 given by the court.

The rules of law applicable to a case of this character are plain and simple, and the instructions should not extend beyond a plain statement of tbe law applicable to the case.

The instructions as to excusable homicide' by reason of accident and misfortune fail to present affirmatively the issue of accidental homicide.

The word “misfortune” as used in section 2235, defining excusable homicide, is analogous to the word “misadventure,” which, when applied to homicide, means the act of a man who is doing any lawful act and without any unlawful intent unfortunately kills another person. Gaunce v. State, 22 Okla. Cr. 361, 211 Pac. 517.

In instructions Nos. 15, 17, 18, 20, and 21, the court limited the right of self-defense to reasonable apprehension of a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished. In other words, the instructions given by the court denied to the defendant the right accorded him by the statute to defend himself against any assault about to' be committed upon or against him.

In this character of case, such is not the law; that every man has the right to defend himself against any assault is elementary. No man is bound to measure the extent of the injury about to be done before he would be justified in defending himself.

The testimony on the part of the state is insufficient to show that the offense charged, manslaughter in the first degree, was committed, and that issue should not have been submitted to the jury.

The lawfulness of the act resulting in the death of Mr. Thomason was the defense. Accidental death to be wholly excusable must have resulted from the doing of some lawful act.

Ruling Case Law, vol. 13, p. 863, § 166, reads in part as follows:

“When the death of a human being is the result of accident or misadventure, in the true meaning'; of the term, no criminal responsibility attaches to the act of the slayer. When it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence — the homicide will be excused on the score of accident. * * * Whether in any particular case the homicidal act Avas the result of accident must be gathered from all the- facts and circumstances surrounding the transaction, and it is peculiarly within the province of the jury to determine this, according to the well settled rules of law.”

It is undisputed that the defendant Avas on his own premises where he had the right to be, and he had the right to use necessary and sufficient force to defend his habitation from unlawful entrance, or to prevent a trespass on the premises, also to preArent an offense against his person, “provided no undue advantage is taken nor any dangerous weapon used.”

It follows that the court, in refusing to give the requested instructions, denied to the defendant the right to have the jury properly instructed as to the law of the case and to say by their verdict whether he went farther than the law justified in preventing a trespass upon his premises and in defense of his person from threatened assault. Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923; Thomason v. State, 17 Okla. Cr. 666, 191 Pac. 1096; Buchanan v. State, 25 Okla. Cr. 198, 219 Pac. 420.

It is next urged that the judgment should be reversed because of remarks made by the assistant county attorney in his closing argument to the jury.

■Suffice it to say that counsel seems to have undertaken to supply the want of evidence to the jury by reference to facts not in evidence. The defendant promptly objected to his remarks as being prejudicial and unfair. The court sustained the objections, and admonished the jury to. disregard and not consider the same.

The prosecuting officer represents the public interest; his object, like that of the court and jury, should be simply justice. However, upon the record before us, we cannot say that it was such a flagrant case of improper remarks as to call for a reversal.

Upon the whole case we are without doubt as to the propriety and necessity of reversing the judgment.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded to the district court of Tulsa county for further proceedings not inconsistent with the views herein expressed.

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


text:
    MELVIN CROWDIS et al. v. STATE.
    No. A-9053.
    May 22, 1936.
    (58 Pac. [2d] 154.)

      Chester Bender, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of possession of intoxicating liquor and sentenced to pay a fine of $100 each and to serve 60 days each in the county jail; from which judgment and sentence the defendants have appealed by petition in error, with case-made attached.

The evidence of the state shows that Garner Simpson, the sheriff of Custer county, went to the home of the defendants armed with a search warrant; he searched the premises of the defendants, and under the floor of their home found one gallon of whisky in two half-gallon fruit jars. At the time he made the search neither of the defendants was at home.

On cross-examination the witness Simpson stated he tried to find the defendants, and made inquiry as to their whereabouts, but that no one knew where they were. He then opened the door and went in and made the search, and. posted a copy of the search warrant on the door.

Mrs. Melvin Crowdis, one of the defendants, testified that her husband had been away from home several days prior to the day the sheriff claims he searched their home; after her husband left for Texas she went to Canton and stayed with Dr. Eaton; “it must have been about two weeks later I found our home had been searched; my husband returned and came to Canton and brought me back and the search warrant was in the front door.” The defendant stated she knew nothing about the whisky; she stated positively that she did not sell whisky to anyone.

The foregoing is all the testimony relative to the occupancy of the home of the defendants, the time the defendants were absent from home, and as to the quantity of whisky the sheriff found when he made a search of the home.

The only assignment of error it is deemed necessary to consider is the first one, which is:

“Said court erred in overruling the motion of plaintiffs in error for a new trial.”

The motion for a new trial covers all the questions raised by the defendants. An examination of the record clearly shows that the only evidence against Melvin Crowdis and his wife is the statement of the sheriff who searched the home of the defendants in their absence and found one gallon of whisky somewhere under the floor in two half-gallon fruit jars. There is no testimony showing the defendants were engaged in the whisky business, or that they had been selling, bartering, or giving away whisky. • It is admitted by the state that the residence searched was the residence of Melvin Crowdis and his wife.

The only question to be determined by this court is, Is there any competent testimony to show that the defendants, Melvin Crowder or his wife, violated the statutes of Oklahoma by permitting one gallon of whisky to be under the floor of their home? The defendant Mrs. Crowdis states positively she knew nothing about the whisky being there; that she is a married woman living with her husband, Melvin Crowdis, at the home established by him; she has no knowledge whatever how the whisky alleged to have been found by the sheriff got under the floor of their home.

It is admitted that Mrs. Melvin Crowdis was the lawful wife of Melvin Crowdis, and was living with him on the date it is alleged their home was searched by the sheriff and one gallon of whisky found. Melvin Crowdis, one of the defendants, is the head of the Crowdis family. In the absence of any testimony specifically connecting Mrs. Melvin Crowdis with the whisky found by the sheriff, and it being admitted it was found under the floor of the home of Melvin Crowdis, we hold that the evidence is insufficient to sustain a conviction against Mrs. Melvin Crowdis, the wife of Melvin Crowdis, and the prosecution as to Mrs. Melvin Crowdis having no competent evidence to. connect her with the possession of the whisky, the case as to her should be reversed and dismissed. The husband, being the head of the house, is in law presumed to direct and control, and to have around his home anything he desires, and his doing so and having a charge against him in no way whatever involves or tends to show that the wife participated or was connected in any way with the leaving of the whisky where the officers found it.

The next question this court will consider is, Is there evidence sufficient to sustain a conviction against the defendant Melvin Crowdis? The record shows he was away from home and had been for some time prior to the search, and had not returned for several days after the search was made. The whisky was found under the floor of his home. No evidence was introduced to show that the defendant Melvin Crowdis was engaged in furnishing, bartering, selling, or giving awray intoxicating liquor, nor is there any evidence tending in any way whatever to connect the defendant Melvin Crowdis with the whisky found, other than it was under the floor of his home.

Section 2625, O. S. 1931, reads as follows:

“It is hereby enacted, in order to suppress the unlawful practice of selling, bartering, giving away and otherwise furnishing’; liquors, the sale of which is prohibited by this act, from private residences, that it shall be unlawful for any person within this state to have or keep at, in, or about his place of residence,-at any one time, more than one (1) gallon of spirituous, or one (1) gallon of vinous (the provisions of this act shall not apply to that for sacramental purposes) liquors, or any imitation thereof, or substitute therefor; nor more than one cask of malt liquors, or any imitation thereof, or substitute therefor, nor more than one cask of any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States. Provided, that this section shall not be construed in any way, to legalize the keeping of such liquors at or about a place of residence for an unlawful purpose. A violation of any provision of this section shall be a misdemeanor and shall be punished by a fine of not less than fifty dollars ($50), nor more than five hundred dollars ($500), and imprisonment of not less than thirty days nor more than six months.”

The authority given the Legislature by the Constitution, art. 5, § 43, to revise the laws, permits it to revise to any extent so long as the substance of the proposed revision is not otherwise prohibited by the Constitution. The revision is a substitute. It displaces and repeals the former law as it stood relating to the subjects within its purview. Ex parte Autry, 58 Okla. Cr, 88, 50 Pac. (2d) 239; Ex parte Wagner, 58 Okla. Cr. 161, 50 Pac. (2d) 1135.

■Section 2625, O. S. 1931, set out in this opinion, has not been amended or repealed by subsequent legislation, and is now the statute under which the defendant Melvin Crowdis should be tried, if at all, for the charge against him. Under the provisions of the section of the statute cited, it is no violation for a person to have in his possession one gallon of whisky.

There is no evidence to show that the defendant Melvin Crowdis was selling, attempting to sell, bartering, or giving away, or otherwise disposing of any whisky in violation of law. The quantity of whisky claimed to have been found under the home of the defendant Melvin Crow-dis not being in excess of one gallon, the evidence is in sufficient to sustain the conviction against him.

For the reasons stated herein, the judgment of conviction against Melvin Crowdis and Mrs. Melvin Crowdis is reversed and remanded, with directions to discharge the defendants.

DOYLE, J., concurs. EDWARDS, P. J., absent, not participating.