text:
    GEORGE W. BENNETT v. STATE.
    No. A-4377.
    Opinion Filed Feb. 9, 1924.
    (222 Pac. 705.)
    (Syllabus.)
    1. Continuance — Discretion of Court — Application on Ground of Absent Witness Properly Denied. Applications for a continuance are addressed to the discretion of the trial judge. An application for a continuance based on the absence of a witness who has not been subpoenaed, and whose residence and whereabouts are unknown to the applicant, and which discloses no facts as a basis for the belief expressed by applicant that the attendance of such witness may be had at the next term of court, properly denied.
    2. Appeal and Error — Affirmance—Conviction on .Circumstantial Evidence. A conviction based on circumstantial evidence and approved by the trial judge will not be set aside on appeal where there is a reasonable basis in' the evidence upon which the jury could conclude, as reasonable men, that the defendant was guilty of the crime charged.
    Appeal from District Court, Pawnee County; Redmond S. Cole, Judge.
    George W. Bennett was convicted of the larceny of an automobile, sentenced to five years in the state penitentiary, and he appeals.
    Affirmed.
    This is a prosecution by information filed in the district court of Pawnee county October 11, 1921, charging plaintiff in error, George W. Bennett (hereinafter referred to as defendant), with the crime of larceny of an automobile from one Prentice E. Rowe, alleged to have occurred in Pawnee county on the 26th day of April, 1921. The cause was tried to a jury in January, 1922, with the result that the defendant was found guilty and punishment fixed as above stated. Motion for a new trial was filed, heard, and overruled, and an appeal prayed to this court. Petition in error and case-made were filed in this court on June 14, 1922. Succinctly stated, the facts are about as follows:
    On April 26, 1921, Mr. Prentice E. Rowe, togther with Mr. Jones, Mr. Reese, Mr. Thompson, and Mr. Grimsley, all residents of the city of Pawnee, Okla., drove into the town of Quay, Okla., in Mr. Rowe’s Studebaker Six touring car, for the purpose of attending a meeting of the Odd Fellows fraternal order. They had with them in the car some regalia, banners, standards, collars, etc., intended to be used in certain of the order’s ceremonies. The meeting was held in the schoolhouse in the town of Quay, located on Main street of said town, on the north side thereof, and in the eastern part of the town. These parties arrived in town shortly before dinner time, ate their dinner, and then repaired to the schoolhouse to attend the meeting. On the way to the schoolhouse Mr. Grimsley saw the defendant George W. Bennett, who was also a resident of the city of Pawnee at that time, and talked with him for some time before entering the schoolhouse.
    Mr. Rowe was on the program to make an address that afternoon, and before entering the schoolhouse he had parked his car near the southeast corner of the schoolhouse. The defendant Bennett was seen near the schoolhouse that afternoon and near the car just about the time Mr. Rowe was to make his address or was making his address. About 15 or 20 minutes later Mr. Rowe received information that his car was missing, and together with Mr. Green and Mr. Grimsley they went outside of the schoolhouse and looked for the car, and also looked for Bennett, and neither the car nor Bennett could be found. Some time between the hours of 2 and 3 that afternoon Mr. Kerns, a traveling salesman for a wholesale grocery house located in the town of Quay, was traveling in a car along the public highway between the town of Quay and the town of Jennings, and passed this defendant, who was at that time in a large touring car stopped at the side of the road at a point about one-half mile from a hill on said road known as the Blue Hill. Mr. Kerns, thinking that the large car had probably broken down, slowed down to offer assistance, but, upon noticing that there was no apparent need of his services, drove on. “When Mr. Kerns got nearly to the top of Blue Hill his Ford car stalled and blocked the road. A few minutes later the defendant drove up behind him, stopping his car near the foot of the hill, and walked up to where Kerns’ car was stalled and' assisted Kerns by pushing his ear until he reached the top of the hill Mr. Kerns stopped at the top of the hill, and the defendant then drove rapidly past him in a large Studebaker touring car. Later on, when Mr. Kerns learned that Mr. Rowe had lost his car, he informed the sheriff of Pawnee county of the foregoing incidents.
    After the loss of the car Mr. Rowe and the sheriff also notified officers of the neighboring towns, as well as those of the city of Oklahoma City and Tulsa, by telephone and telegraph, of the loss of the car and offered a reward for its recovery.
    On the morning following the loss of the ear Mr. G. R. Coles, a farmer, who had attended the Odd Fellows meeting at Quay, and had stayed all night in the town of Quay after the meeting, was returning to his home on the road traveled by Mr. Kerns the day before and by the party who was driving the large Studebaker Six touring ear, and at a point not far distant from where Kerns had first seen the large ear on the side of the road Mr. Coles found, about 30 or 40 feet from the road', the Odd Fellows’ paraphernalia that had been left in Mr. Rowe’s car when he parked the same near the schoolhouse the day before. A man’s track led from the place where the car had evidently been stopped to the place where the Odd Fellows’ paraphernalia was found, the ground being soft from a rain which had occurred a few days before. The tracks were those of a medium sized man, shoes probably between a 5 and a 7 number, and were evidently new shoes with rubber heels on them.
    On the evening of the next day after the car was lost, Green, who had made the trip from Pawnee to Quay in Mr. Rowe’s car, was en route via the Frisco Railway to the city of Claremore, Okla. At Tulsa the defendant got on the train and took a seat just opposite to Mr. Green, and facing him. Green recognized the defendant, and talked with him until the train arrived at Claremore, where Green left the train. During the course of the conversation the defendant told Green that he was on his way to Detroit, Mich., and was going to attend some races to be held in Canada. "When the conductor collected the tickets the defendant took out a new bill folder when he handed the conductor his ticket. Green then noticed that the defendant was carrying a considerable amount of money. Green also noticed that the defendant had on a new gray suit of clothes, and carried an expensive traveling bag. When Green alighted from the train at Clare-more he immediately telephoned to the sheriff of Pawnee county. Immediately after receiving this information the sheriff then called the police headquarters in St. Louis, Mo., giving the officers there a description of the defendant, and telling them what train he would arrive on, and directing them to arrest him. The next morning the officers in St. Louis arrested the defendant in Union Station, at that city. When arrested the defendant had on his person between $350 and $400 in money, a ticket from St. Louis to Detroit, Mich., and he was carrying a new traveling bag. The sheriff of Pawnee county went to St. Louis and returned with the defendant to the city of Pawnee, where he was afterwards charged and tried for the offense. Mr. Rowe never recovered the stolen car.
    The defendant, as a witness in his own behalf, admitted that he was in the town of Quay on the day the car was stolen; that he was present at the sehoolhouse; that he left Quay on the afternoon of the day of the Odd Fellows’ meeting; that he met Green in the city of Tulsa, and was with him on the Frisco train between Tulsa and Claremore, Okla., on Ms way to Detroit, Mich.; that he had on his person the amount of money that the state claimed was found thereon; and that he was carrying a new traveling bag which he bought in the city of Tulsa. He denied that he had stolen Mr. Rowe’s automobile, but claimed that he had ridden from the town of Quay to the town of JenMngs, Okla., with a stranger by the name of Anderson, whom he had met that day in the town of Quay, and whom he had overheard say that he was going to drive from the town of Quay to the town of Keystone, Okla., and who, upon request, permitted the defendant to ride with him to Jennings. The defendant further claims that he was in the town of Quay looking for work at Ms trade as an electrician; that he had no permanent employment at that time, and had not had any for some time, and had heard that there was to be a Delco lighting system installed at the town of Quay, and for that reason he was there; that he stayed in Quay during the night of April 25th, and on the morning of April 26th, after investigation, he concluded that it would not pay him to stay in Quay any longer, and he then determined to go to Detroit, Mich., where a friend of his had previously written to him that he could obtain permanent employment. Defendant never returned to his home in Pawnee to notify his relatives of his sudden determination to go to Detroit;. neither did he get his trunk, which was at home, nor any of his wearing apparel and other belongings which one usually carries with him when leaving to make a permanent location at another place. Defendant further attempted to explain the possession of the large amount of money then upon his person by saying that it was money that he had saved from his work in various places as an electrician.
    Further, it should be stated that, in addition to the foregoing facts and circumstances proved by the state, after the defendant had been returned from St. Louis to Pawnee the witness Kerns visited him while confined in the county jail at Pawnee, and there positively identified the defendant as the person he had seen on the road between Quay and Jennings, on the day of the Odd Fellows’ meeting, at Quay, driving a large Studebaker Six touring car.
    David C. Lee, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). It is first contended that the trial court erred in overruling the defendant’s motion and application for a continuance based on the absence of the witness A. R. Anderson. The motion for a continuance discloses that this alleged person, whether fictitious or not, was a person whom the defendant claims he rode with from the town of Quay to the town of Jennings on the day Mr. Rowe’s automobile was stolen. The application shows that several days before the cause was called for trial the defendant had a subpoena issued for the witness Anderson and placed in the hands of the sheriff of Pawnee county, and the same was returned unserved, and the application also shows that the whereabouts of the said witness was unknown to the defendant; but defendant states that he believes the witness could be found if the case was continued for trial until the next term of court. In resisting this motion the state proved by the sheriff that he had made a diligent search for the said witness; that he inquired of numerous persons in the town of Keystone where the witness was supposed to have lived, and where he had been informed by the defendant that the witness lived, but that nobody in said town knew of anybody by that name; that the postmaster there said there was nobody there by that name, and long-time residents of the town also stated that there was nobody by that name living there. So far as the application on its face shows, there is no greater likelihood that the alleged witness Anderson would be available for attendance upon a trial of this case at any later term of the court. The application does not state any fact by which the court could be led to believe that the witness could be found at a later term of court. In his affidavit in support of the application the defendant merely states his conclusions or opinions and not the facts upon which those opinions are based. From the face of the application it doe's not appear what the present residence of the absent witness was. So far as the defendant knew, he could only inform the court that the witness was not where he thought he would be, and, further, in the opinion of the defendant, he thought he might be able to find him before the next term of the court. This was merely a surmise on the part of the defendant that did not entitle him to delay the trial. Under such circumstances there was no abuse of discretion in overruling the motion. Pugh v. State, 6 Okla. Cr. 578, 120 Pac. 296; Cantrell v. State, 15 Okla. Cr. 280, 176 Pac. 91.

The verdict is based upon circumstantial evidence, and the conviction was approved by the trial judge. A fair statement of the facts of the case appears as a preface to this opinion. We deem it unnecessary to enter into a lengthy dicussion of the circumstances which were, in the opinion of the jury and of the trial judge, and also of this court, amply sufficient to sustain this conviction. It was the province of the jury to determine whether the circumstances were incompatible with any reasonable hyothesis except the guilt of the defendant. The function of this court is limited to ascertaining whether there was a reasonable basis in the evidence upon which the jury could conclude, as reasonable men, that the defendant was guilty of the crime charged. In our opinion the circumstances were such as to permit of no other reasonable inference than that of the guilt of the defendant. The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    A. H. GRALL v. STATE.
    No. A-4409.
    Opinion Filed Feb. 9, 1924.
    (222 Pac. 701.)
    (Syllabus.).
    1. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Manufacture. In a prosecution for manufacturing intoxicating liquor, evidence reviewed, and held sufficient to sustain the verdict and judgment of conviction.
    2. Appeal and Error — Continuance Discretionary. The granting or refusing of a continuance is in the discretion of the trial court, and its decision will not be disturbed on appeal, unless it appears that' there has been an abuse of such discretion.
    Appeal from County Court, Seminole County; B. F. Davis, Judge.
    A. H. Grail was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Hill & Billingsley, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

.The information in this case charges that A. H. Grail, John Craig, and Bob Odel did in Seminole county, on or about the 24th day of March, 1922, commit the crime of manufacturing intoxicating liquor, to wit, about two gallons of corn whisky, “by a method of fermentation and distillation from a substance and product .the ingredients of which are to the county attorney unknown, but commonly called mash, and containing alcohol as a by-product, by and through and by means of a certain apparatus or plant known as a ‘whisky still,’ made and constructed out of a copper worm, a copper boiler, and a wooden cooling keg.”

Upon his separate trial appellant) A. H. Grail, was convicted, and his punishment fixed at confinement in the county jail for 60 days and a fine of $500. He has appealed from the judgment rendered upon such conviction.

The facts, which are undisputed, or which the evidence tends to prove, are that on the date alleged Montgomery, a deputy sheriff, in company with Crosby, a constable, Frank Brown, and Jim Lane, came upon a still in operation, situated in a canyon, about a quarter of a mile from the home of the defendant. They found a barrel half full of mash and about two gallons, of fresh-made whisky by the still.' Bill Montgomery testified:

“We went down the canyon about a quarter of a mile southeast of Grail’s house, and found them operating a still. Grail was firing, Odel was pouring water into the cooling keg, and John Craig was asleep. We made a run, and told them to stick their hands up. Grail said, ‘Come down and have a drink.’ I saw him put wood on the fire. Grail threw a jug over the cliff, and it fell into a water hole. It had corn whisky in it. There were two copper wash boilers, a copper worm, a cooling keg, and half a barrel of mash. They were running off the liquor. We found three gallons that Grail tried to throw away, and we got two gallons of that.”

As a witness in his own behalf, A. H. Grail testified:

“Bob Odel told John Craig and me that, if we would come over there, he would give us something to drink. We went over. It was a little too strong, and he said, if we would wait a while, he would run off the rest; that it would be weaker, and we could drink it. I laid down and went to sleep. The first thing I heard some one said, ‘ Stick them up! ’ and there was a flash light right in my face. I said ‘To hell with you; if you want a drink, come down and get it,’ and Montgomery rolled down the bank. I said, ‘I do not think you are an officer,’ and I told him not to get excited. I did not have any interest in that still or the whisky.”

Bob Odel, codefendant, testified:

“My age is 72 years. I was making whisky in a pasture that belongs to Mr. Swartz, who lives in Arkansas. Along in the night, about 10 o’clock, A. H. Grail and John Craig came down where I was making whisky. They laid down and went to sleep. Directly after the officers came, Grail woke up and told them to come down and get a drink. One of the officers handed Grail a jug, and he threw it down. The still was mine. Grail had no interest in it; he had nothing to do with it. I pleaded guilty and am serving the time.”

The foregoing is but part of the testimony, but it is sufficient to show that the testimony on the part of the state, if credited, was amply sufficient to sustain the conviction.

The overruling of defendant’s demurrer to the information is assigned as error. Tested by statutory rules, the information in this case is without a doubt sufficient, and the court did not err in overruling the demurrer thereto.

It is next insisted that the court erred in refusing to grant defendant’s motion for a continuance of the term, on the ground of the absence of John Craig, a codefendant, and alleged that, if present, John Craig would testify that he was with this defendant on the day and night it is alleged that this offense was committed, and together went to the place where Bob Odel was making whisky; that this defendant never made any whisky, and never advised, assisted, or participated in the making of whisky; that defendant had a subpoena issue for the said John Craig, who is now confined to his bed, sick, and is unable to be in attendance at this term of court. The. motion was in legal form and duly verified. It is not shown that this codefendant would be willing to testify, if present, and it appears that the county attorney admitted that John Craig, if present, would testify as alleged in the motion for a continuance. The motion for continuance was read as the deposition of the absent witness. The uniform holding of this court is that it is a matter within the sound discretion of the trial court to grant or refuse a continuance. The court did not err in overruling defendant’s motion.

The ease appears to have been fairly tried, and was submitted to the jury by instructions, not only free from reversible error, but free from reasonable criticism.

The judgment is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    THOMAS ADAMS v. STATE.
    No. A-4421.
    Opinion Filed Feb. 11, 1924.
    (222 Pac. 708.)
    (Syllabus.)
    Burglary — Evidence Sustaining .Conviction. In a prosecution for burglary, evidence considered, and held sufficient to support the conviction, and that no material error was committed on the trial.
    Appeal from District Court, Rogers County; C. W. Mason, Judge.
    Thomas Adams was convicted of burglary, and he appeals.
    Affirmed.
    Giddings & Giddings, Bert Van Leuven, and George H. Giddings, for plaintiff in error.

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

Thomas Adams was convicted of burglary, and his punishment fixed at imprisonment in the penitentiary for the term of 5 years. He has appealed from the judgment rendered upon such conviction.

The information charged a breaking and entering in the nighttime of a storeroom occupied and owned by J. L. Beatty, in the town of Talala, with intent to steal. The following facts are undisputed, or fairly shown by the evidence:

On the night of the 3d day of October, 1920, J. L. Beatty closed his store and locked the door in the usual way. Some time during the night the store was burglarized and $600 or $700 worth of merchandise taken. The next morning Mr. Beatty discovered that his store had been burglarized and called the officers. A posse of five men was organized, and started in pursuit of the burglars. The posse followed the tracks of a big automobile with diamond tread tires into Nowata county, and to the city of Nowata. There two officers of Nowata county joined with the posse. They followed the trail to Lenapah, and from there across the Verdigris river some 6 or 7 miles, where the trail left the road and turned off northeast into the hills. They followed the trail up into the hills, to a place where the fence had been opened. There they left their car and followed the trail on foot into the brush, and saw a big car standing in the underbrush. Four or five men were sitting around a tarpaulin on the ground playing cards. Seeing the officers, all but one jumped up and ran into the underbrush. The one remaining was the defendant, Adams. He jumped up with a pistol in his hands and faced the officers, and was reaching for a Winchester rifle nearby when two of the officers fired at him. One of the shots took effect in his hip. Nearly all of stolen merchandise was found in the car. The hat, shirt, and shoes worn by the defendant were identified as a part of the property stolen. They put Adams in the ear and drove back to Nowata, where he was placed in jail and under the care of a doctor.

The defendant, as a witness in his own behalf, testified:

“I went hunting that morning, and went over the hill into the hollow. I guess I was within 50 feet of the car before I noticed it. I stepped around and saw four men playing poker. They said, ‘Come on up here,’ and wanted to know what I was doing out there. I told them, ‘Hunting.’ I had a shotgun and a .45 Colt’s with me. One said, ‘We are having a stud game; do you want to take a hand?’ I said, ‘Yes;’ and they said, ‘Well, get in.’ The tarpaulin they were playing on was about 15 feet north of the car. I judge we played there about two hours before the officers came. One of them went broke and tried to borrow some money. He asked me what I would give him for his shoes. I told him, if the shoes would fit me, I would buy them. I tried them on and asked him what he wanted for them. He said, ‘Ten dollars.’ I offered him a $5 bill, and he took it. A few minutes afterwards somebody whistled. Everybody jumped up and ran. I saw John Cansdel, and I knew they were officers. I started towards them, and that is when they shot me. From there on I really do not know what took place. This was the first time I had seen any of those fellows. I was not down to the town of Talala the night before.”

The errors assigned and argued relate to rulings of the court in the admission and exclusion of evidence, but none of them involve the merits of the case. A careful reading of the record convinces us that no error prejudicial to the substantial rights of the defendant was committed on the trial. The ease appears to have been fairly tried and the verdict appears to have been fully justified by the evidence.

Accordingly the judgment is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: DOYLE. J,

text:
    GEORGE PRIMROSE et al. v. STATE.
    No. A-4967.
    Opinion Filed Feb. 12, 1924.
    (222 Pac. 702.)
    (Syllabus.)
    Appeal and Error — Appeal of Felony Case, not Perfected Within Six Months from Judgment, Dismissed. Under Code of Criminal Procedure (section 2808, Comp.*'stat. 1921), “in felony cases the appeal must be taken within six months after the judgment is rendered,” and when it appears from the record that such appeal was not perfected within six months from the rendition of the judgment, the same will be dismissed for want of jurisdiction.
    Appeal from District Court, Garvin County; W. L. Eagle-ton, Judge.
    George Primrose and Dempse Brown were convicted of rioting, and they appeal.
    Appeal dismissed.
    Bowling & Farmer, for plaintiff-in error.
    The Attorney General and John Barry and Mac. Q. Williamson, Asst. Attys. Gen., for the State.
   DOYLE. J,

The plaintiffs in error, George Primrose and Dempse Brown, were tried for riot, upon an information charging that in Garvin county, on or about the 7th day of August, 1922, they and others did assemble with the common intent and purpose to use force and violence upon R. D. Lindsey and his wife, and—

“they, the said George Primrose, Bernie Primrose, Alva Baxter, Harry Hendricks, Orvil Hendricks, Carl Jerrell, Earnest Bradford, Bryant Blackwood, Vernon Richardson, Bill Richardson, and Dempse Brown, then and there being and acting together in furtherance of said unlawful common intent, and acting together and being disguised, and armed with certain pistols, shotguns, and rifles, did then and there unlawfully, willfully, feloniously, tumultuously and riotously use force and violence toward and upon the said E. D. Lindsey and Mrs. E. D. Lindsey, by then and there forcibly detaining and aiming and pointing said firearms at and toward the persons of the said E. D. Lindsey and Mrs. E. D. Lindsey, then and there overcoming the resistance of them, the said E. D. Lindsey' and Mrs. E. D. Lindsey, and by assaulting, striking, beating, whipping, and wounding the said E. D. Lindsey and Mrs. E. D. Lindsey with a certain leather strap and other means and weapons, to your informant unknown.”

The jury by their verdict found the plaintiffs in error guilty, and fixed the punishment of George Primrose at imprisonment in the penitentiary for a term of 2% years, and fixed the punishment of Dempse Brown at imprisonment in the penitentiary for a term of 2 years. Prom the judgments rendered October 30, 1922, upon such conviction, an appeal was attempted to be taken by filing in this court, on December 20, 1923, a petition in error with transcript attached.

Counsel for the state have filed a motion to dismiss the appeal on the ground that the appeal was not filed within the time required by the statute; therefore this court is without jurisdiction to hear and determine the same. The appeal in a criminal case is from the judgment of conviction, and “in felony cases the appeal must be taken within six months after the judgment is rendered.” Sec. 2808, Comp. Stats. 1921. An appeal is perfected by filing in this court a petition in error with case-made attached, or a transcript of the record together with proof of service of notices of appeal as required by the statute. Section 2809, Comp. Stats. 1921. When this is not done within the time allowed by statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Clark v. State, 18 Okla. Cr. 145, 193 Pac. 1008; Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739; Heath v. State, 22 Okla. Cr. 122, 210 Pac. 560.

The record shows: That the court rendered judgment on the verdict on the 30th day of October, 1922, and the court fixed the amount of supersedeas bonds, which were given, and the execution of the judgment stayed pending the filing of the appeal as required by law. Section 2811, Comp. Stat. 1921. Time was given to make and serve a case-made. It further appears that on December 10, 1923, the county attorney filed his motion in the trial court asking orders of commitment to issue, setting forth the fact that, although notices of appeal were given by each of the defendants and supersedeas bonds timely filed in accordance with the orders of the court, that the proceedings of perfecting the said appeal are at this time in default, and the time for perfecting the same has long since passed, which motion was by the trial court allowed. December 18, 1923, the defendants filed a motion for a new trial, on the ground that the trial court was without jurisdiction to hear and determine this action. The motion for a new trial was on the same day overruled, and time was given to make and serve a case-made.

For the reasons given in the cases above cited, the motion to dismiss is sustained. The attempted appeal herein is accordingly dismissed, and the cause remanded to the district court of Garvin county, with direction to cause its judgments to be carried into execution.

MATSON, P. J., and BESSEY, J., concur.


text:
    GEORGE STRICKER v. STATE.
    No. A-4612.
    Opinion Filed Feb. 12, 1924.
    (222 Pac. 704.)
    (Syllabus.)
    1.i Witnesses — Interrogation by Court — Fairness. A trial judge has the right to ask any witness, on his own motion, such questions as will tend to elicit the truth, but they should be asked in a spirit of fairness, and in such a way as will not tend to prejudice the jury against the rights of either the state or the defendant.
    2. Trial — Court not to Indicate to Jury Opinion as to Merits or Credibility of Witnesses. No trial judge has the right to indicate to the jury, by word or action, his opinion as to the merits of a case being tried, or as to the credibility of any witness examined.
    3. Intoxicating Liquors — Unlawful Manufacture of Wine — Insufficiency of Evidence. In a prosecution for unlawful manufacturing of wine, evidence considered,- and held insufficient to support the verdict and judgment of conviction.
    Appeal from County Court, Woodward County; H. B. King, Judge.
    George Strieker was convicted of manufacturing wine, and he appeals.
    Reversed.
    Chas. R. Alexander, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried upon an information charging that he did unlawfully manufacture 6 gallons of wine by pressing the juice from grapes and adding sugar to the juice, and by process of fermentation manufacture said wine.

The jury returned a verdict' finding him guilty, and fixed his punishment at a fine of $250 and confinement for 60 days in the county jail. He has appealed from the judgment rendered upon such conviction.

The assignments of error relate to the conduct of the court in the examination of the defendant, instructions given to the jury and the sufficiency of the evidence taken as a whole to sustain the verdict.

The Attorney General concedes that the conviction cannot be sustained, and after a careful reading of the record we are convinced that the evidence is insufficient to support the verdict and judgment of conviction, and we adopt the confession of error as the opinion of the court. It is as follows.:

“The record in this case discloses that the plaintiff in error was the husband of a. wife who was affected with tuberculosis; that her physician advised her to procure and use wine as a tissue builder and stimulant; that her husband went to a vineyard some 10 or 12 miles away and purchased 75 pounds of grapes and brought same to his home; and that out of said grapes so purchased by the plaintiff in error, the wife manufactured about 6 gallons of grape wine. Later on the sheriff and some of his deputies searched the premises and confiscated the wine, and caused to be filed against the plaintiff in error the information upon which he was convicted, and from which judgment and sentence this appeal is prosecuted. During the progress of the trial, the following dialogue was had between the court and the plaintiff in error:
“ ‘By the Court: Q. You say that you bought the grapes for your wife? A. Yes, sir. Q. Did she do all the work with them? A. She made the wine. Q. But you went and got them for her? A. Yes, sir. Q. Now, Mr. Strieker, do you mean to place all of the blame on your wife for making this wine? A. Why not? She made it. Q. You went after the grapes, yet you say that you had nothing to with making the wine? A. She said she needed it.’
“In the case of Howard v. Territory, 15 Okla. 201, 79 Pac. 774, the court said: ‘A trial should not be conducted in such a way as to aid the guilty to escape or to punish the innocent. Trials, in fact as well as in theory should proceed in a manner which will elicit the truth and thereby protect the innocent and punish the criminal. A trial court not only has the láwful right, but there are cases in which it is its absolute duty to either direct the prosecuting officer to make inquiry as to a particular matter, or do so itself. A court is not compelled to sit quietly by and see one wrongfully acquitted or unjustly punished, when a few questions asked by it might elicit the truth. But this power should be exercised with discretion, and in such a way as not to prejudice the rights of the territory or of the defendant. In the trial court a defendant should be accorded every reasonable opportunity to make his defense, and the court should see to it that,he is surrounded by every safeguard of the law. When this is done he should be compelled to submit to the searchlight of truth, and, by the facts which it reveals, go free or stand condemned. It is only by this standard that the citizen can be protected in his lifq and property; by the enforcement of this rule the law will command his admiration and respect.’
“This principle has been promulgated and adopted by this court in Harrison v. State, 11 Okla. Cr. 14, 141 Pac. 236, and in Talliaferro v. State, 20 Okla. Cr. 57, 200 Pac. 1068. We are inclined to believe, and do believe that the evidence introduced against the plaintiff in error, in the trial below, was not sufficient to warrant a conviction upon the crime charged, and we further believe that, if it were sufficient, prejudicial error was committed by the court in indicating to the jury that he believed the plaintiff in error to be guilty.
“We therefore respectfully suggest that this cause should be reversed.”

For the reasons given, the judgment of conviction is reversed.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    LEO KINNEY v. STATE.
    No. A-4392.
    Opinion Filed Feb. 13, 1924.
    (223 Pac. 198.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Leo Kinney was convicted of maintaining a liquor nuisance, and he appeals.
    Reversed and remanded.
    Bruce & Brewer, for plaintiff in error.
    ' George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Oklahoma county, wherein plaintiff in error was convicted for maintaining a liquor nuisance at No. 1407 East Sixth street, in Oklahoma City, Okla., on the 5th day of September, 1921, and his punishment fixed as above stated. The facts are about as follows:

The house located at 1407 East Sixth street was a one-story house of five rooms, with a back porch, owned and kept by some negroes by the name of Stevens, who were uncles of this defendant, and the evidence further shows that the mother of the defendant, who was a sister of the Stevenses, also lived at the place, as well as the grandmother of the defendant. The said place had a bad reputation as a place where intoxicating liquors were sold and where divers persons congregated for the purpose of drinking intoxicating liquor. The place had been raided and searched by the officers during the month of August, 1921, at which time liquor was found. Three of the Stevens men were arrested and charged with maintaining the place. The defendant was not there at the time and was not charged. On the 5th day of September, 1921, at about 9 o’clock in the evening, the place was again raided, and Stokes Stevens, an uncle of this defendant, was arrested.

The defendant admits that he was there that evening visiting his mother, and testified that he lived in another part of town and was engaged as porter at a gas-filling station. No attempt was made by the state to disprove the testimony of the defendant that he did not reside at said place, nor that he was not engaged at that time in the business that he testified that he was engaged in. The only liquor found at the time of the raid on September 5, 1921, was a quantity of whisky contained in a gallon jug on the back porch of the premises and a number of empty bottles scattered around over the premises. The only evidence tending to connect the defendant with being the keeper or owner of the premises on the 5th day of September, 1921, was the fact that he was at the premises on the evening the raid was made. "Whether at the time of the raid or later in the evening is not clear from the evidence before us.

This prosecution was based on section 7022, Compiled Statutes 1921, declaring places where liquors are kept to be used in violation of the prohibitory liquor laws to be public nuisances, and, among other provisions, providing that the owner or keeper of such places, upon conviction, shall be adjudged guilty of maintaining a public nuisance. It follows, therefore, that the gist of the offense is that the person charged must either be the owner or keeper of the premises, or else must directly aid or "abet the owner ■ or keeper of the premises in maintaining the said nuisance. There is no evidence in this record to show that the plaintiff in error was either the owner or keeper of said premises, and, further, there is no evidence to show that he directly aided or abetted the owner or keeper of the premises in maintaining a place where liquor was sold dr kept for purposes of violating the prohibitory liquor laws. The mere circumstance of his being found there on the 5th day of September, 1921, standing alone, in view of the fact that the. record discloses that the residence was the home of his uncle, and of his mother, and of his grandmother, considered in connection with the defendant’s testimony that he lived at another place and worked at another place, which facts were uncontradicted, is not sufficient upon which to permit this conviction to stand.

Undoubtedly this place was a public nuisance, and the owner or keeper thereof should have been punished under the facts. Stokes Stevens, an uncle of this defendant, was jointly' tried with him, and was also convicted, and we believe properly so; but the conviction of the defendant, in our opinion, is unjust and unwarranted under the facts and circumstances, which raise only a suspicion that he may have been guilty of aiding and abetting his uncle in the unlawful disposal of intoxicating liquors from such premises. This defendant may, in fact, have been guilty. He probably did know that his uncles were engaged in maintaining a liquor nuisance on such premises; but to let a conviction stand against him, where the state wholly failed to meet its burden to connect him with the maintaining, either as owner or keeper of the alleged nuisance, or as an aider or abetter therein, would require the defendant to establish his innocence, rather than that the state should prove his guilt beyond a reasonable doubt.

For reasons stated, the judgment is reversed, and cause remanded to the trial court for further proceedings not inconsistent with this opinion.


text:
    ARTHUR JONES v. STATE.
    No. A-4403.
    Opinion Filed Feb. 13, 1924.
    (223 Pac. 200.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction for Murder. In a prosecution for murder, evidence held to sustain a finding that the killing was premeditated, and that defendant was therefore guilty of murder, and assessing imprisonment for life as the punishment.
    Appeal from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.
    Aruthur Jones was convicted of murder, and lie appeals.
    Affirmed.
    Reily, Carlton & Hendon, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Arthur Jones was tried for murder upon an information charging that he did, on October 17, 1921, kill and murder one Semp Hudgins.. The jury returned a verdict finding him guilty of murder and assessing his punishment at imprisonment in the penitentiary for life at hard labor. He has appealed from the judgment rendered upon such conviction, but there has been no appearance in his behalf on his appeal.

The assignments of error relate to rulings of the court in the admission and the exclusion of evidence, and instructions given to the jury.

The testimony discloses that on the night of the 27th day of October, 1921, there was a dance at the home of Jack Taylor, near Tribby, which was attended by a number of people of the neighborhood. The defendant appeared at the dance, apparently somewhat under the influence of liquor. He spoke to> two or three persons in the yard and then walked ont to the road where deceased and three other men were standing and talking. The defendant asked Frank Boyd, “Who is the big man standing back of me?” two or three times. Deceased turned around and said, “If you want to know who' I am, I can tell you.” Defendant said, “I don’t care to know who you are,” then pulled his gun and fired a shot into the ground. Deceased said, “Here, don’t do that.” The defendant took two: or three steps backward and shot deceased. The bullet entered just above the left groin, passing through the bladder, lodged in the pelvic cavity. Death resulted three days later.

Otis Abbott testified:

“There was a bunch of us standing on the porch; the defendant called me around by the side of the house and pulled' out this 32 Colts. I said, ‘You had better put that thing up; you are liable to kill somebody.’ He said, ‘I don’t give a damn; I am going to kill some damn son of a bitch before the dance is over. I have a gallon of whisky out here and you stay here until I get back.’ I waited some three or four minutes; then the gun fired.”

Bart Hudgins testified:

“I was going towards the house and met the defendant, he had a gun in his hand, he stopped and said, ‘I know who you are, you are not the man I am looking for.’ That he went on out to the road. It wasn’t but a few minutes until I heard the shots.”

Arthur Jones, the defendant, testifying in his own behalf said he went to Taylor’s dance with Frank Boyd and while he was tying the team Otis Abbott rode up, and he saw him hide a quart fruit jar of whisky. That he left the house with Bert Hale, Tom Morton, and one or two others, and they found the whisky and drank it, and he came back to the house. That Frank Boyd gave him this pistol out in the yard, he buckled it on, and went out into the road. Three oh four persons were standing there. Frank Boyd came out, and he said to Boyd, “Who' is that big fellow,” and Mr. Hudgins says, “I could find out if I wanted to know,” and I told him I didn’t care to know. That he pulled this gun and shot down into the ground, and Frank Boyd grabbed the gun and pulled back this way; the gun being a double action sixshooter it went off. That he had no intention of shooting anybody, and did not know Mr. Hudgins.

While the defendant is not represented in this court, we have carefully read the record, and find it free from substantial error. The case appears to have been fairly tried and submitted to the jury by instructions that fully covered the law of the case.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    LOUIS BAKER v. STATE.
    No. A-4905.
    Opinion Filed Feb. 13, 1924.
    (223 Pac. 1117.)
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    Louis Baker was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Appeal dismissed.
    Hall & Pickens, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Louis Baker, was convicted on a charge that he did have in his possession whisky with the unlawful intent to violate provisions of the prohibition. liquor laws, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and the costs. From the judgment he appealed, by filing in this court on December 22, 1923, petition in error, with ease-made. Plaintiff in error has filed a motion to dismiss his appeal, which motion is sustained, the appeal herein is dismissed, and the cause remanded to the trial court.


author: BESSEY, J.

text:
    CLARENCE BARTON v. STATE.
    No. A-4359.
    Opinion Filed Feb. 16, 1924.
    (222 Pac. 1019.)
    (Syllabus.)
    Former Jeopardy — Conviction of Unlawful Manufacture Bar to Conviction for Unlawful Possession of Liquor. One cannot manufacture whisky illegally without at the same time having illegal possession of the same whisky; therefore a conviction for the former offense will be a bar to a conviction for the latter, where both are predicated on one transaction, at' one and the same time.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Clarence Barton was convicted of the illegal possession of whisky, and he appeals.
    Reversed, with directions to dismiss cause.
    Babcock & Trevathan, for plaintiff in error.
    The Attorney General and N. W. Gore®and J. Roy Orr, Asst. Attys. Gen., for the State.
   BESSEY, J.

Clarence Barton, plaintiff in error, here referred to as the defendant, was by verdict of a jury rendered January 23, 1922, found guilty, of the illegal possession of certain whisky, and his punishment was assessed at confinement in the county jail for a term of six months and a fine of $300. From the judgment on the verdict he appeals.

Certain peace officers, armed with a search warrant authorizing them to search a tract of unimproved land, where the officers had information they might find an illicit whisky still, went to this tract and found the defendant there, armed, in a deep canyon surrounded by trees and underbrush, engaged in operating a still. Near the still they found a five-gallon container full of whisky and another vessel into which whisky from the still was being drained. The defendant acknowledged that the still and the whisky belonged to him. The land belonged to some other person, who, so far as the evidence discloses, had no knowledge of or connection with the operation of the still. After his arrest the defendant explained that he had selected this place for his still because he thought he could make whisky there without being discovered; that he had a note or some debts that would soon mature and was making this whisky for the purpose of raising money to pay the.se obligations.

Upon this showing the defendant was convicted of illegally manufacturing whisky, and the judgment in that case has been affirmed by this court, 26 Okla. Cr. 89, 222 Pac. 272, opinion of January 22, 1924. Now, in . this case, he stands convicted of the illegal possession of the same whisky at the same time. At the trial in this case he interposed a special plea of former jeopardy. The facts are not disputed. The evidence in both eases is practically identical, and the question of former jeopardy is therefore, under the circumstances here, purely a question of law.

It is well settled everywhere that a conviction for an offense will bar a subsequent conviction for a lesser degree of that offense, or for an offense that is a necessary ingredient of the offense for which a conviction has already been had, where both prosecutions grow out of the same transaction. It is apparent that one who makes whisky in the hidden recesses of an unfrequented canyon on another’s land violated the law, no matter what his purpose. Whether he may be making it for his own use or for scientific or mechanical purposes the manufacture is illegal. Where, as here, the record in both cases shows that the whisky was made and possessed, at the same time, for the purpose of sale and profit, we think the manufacturing necessarily includes the illegal possession. Defendant manufactured' it with intent to sell it, and he had it in his possession with intent to sell it. The state is therefore seeking to punish the defendant twice for inseparable parts of the same transaction.

This seemingly simple question presents a case that comes near the dividing line between two established rules relating to the question of former jeopardy: First, that a conviction of a lesser degree of an offense cannot stand where the accused has suffered for the greater; and, second, that where the offenses are not of the same nature, and where different proof will be required to sustain each, the accused may be convicted of both.

In the case of Estep v. State, 11 Okla. Cr. 103, 143 Pac. 64, it was held that where a defendant had been previously acquitted by a jury on an information charging him with maintaining a place where liquor was kept for the purpose of selling it, he could not later be convicted' on a charge of illegal possession of the same whisky. In the case of Jackson v. State, 11 Okla. Cr. 523, 148 Pac. 1058, the court held that where a defendant had been previously acquitted of transporting intoxicating liquor, he could not later be tried and convicted on the charge of having illegal possession of the same liquor.

Where one was convicted of the unlawful manufacturing of intoxicating liquor and was subsequently convicted of having in his possession, unlawfully, the implements and materials used to make the liquor so possessed, the United States Circuit Court of Appeals said:

“We do not understand it. necessary to double punishment that each offense contain an element not found in the other. To our minds there is nothing illogical in the fact that the question of double punishment, in the contingencies stated, is made to depend upon the accidental order of prosecution. Indeed, as a practical proposition, a court, in punishing under the later conviction, would naturally take into account the prior punishment for an offense which was but an incident of the subject of the later prosecution.” Reynolds v. U. S., 280 Fed. 1.

Since one cannot manufacture whisky illegally without at the same time having illegal possession of it, we conclude that the former offense includes the latter, and that a conviction for the former will be a bar to a conviction for the latter, where both are predicated on one transaction at one and the same time.

The judgment of the trial court is reversed, with directions that the cause be dismissed.

MATSON, P. J., and DOYLE, J., concur.


author: MATSON, P. J.

text:
    ELMER CARNES v. STATE.
    No. A-4348.
    Opinion Filed Feb. 16, 1924.
    (223 Pac. 199.)
    (Syllabus.)
    Appeal from County Court, Harper County; A. J. Walker, Judge.

      Elmer Carnes was convicted of unlawfully conveying intoxicating liquor, and lie appeals.
    Affirmed.
    J. L. Griffitts and B. F. Willitt, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

This prosecution was commenced by filing in the county court of Harper county on the 13th day of January, 1922, an information charging the defendant with unlawfully conveying V/z pints of whisky from the town of May, in Harper county, to the town of Laverne, in Harper county. Said crime was alleged to have been committed on the 29th day of December, 1921. A trial was had in January, 1922, resulting in a verdict of guilty, with punishment assessed as above stated, and judgment was rendered in conformity with the verdict on the 30th day of January, 1922. The cause was submitted on the record on November 6, 1923. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time the same was submitted. An examination of the record discloses evidence sufficient to sustain the conviction, and that no error sufficiently prejudicial to authorize this court to reverse thé judgment was committed at the trial. The judgment is therefore accordingly affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    LAFE LEWELLEN v. STATE.
    No. A-4384.
    Opinion Filed Feb. 16, 1924.
    (223 Pac. 197.)
    Appeal from County Court, Tulsa County; Z. I. J. Holt, Judge.
    Lafe Lewellen was convicted of violation of the prohibitory liquor laws, and he appeals.
    Appeal dismissed.

      W. L. Coffey, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Lafe Lewellen, was convicted in the county court of Tulsa county on the 28th day of April, 1922, of the offense, of unlawful possession of intoxicating liquor, and punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 90 days. An appeal was attempted to be taken to this court by filing herein on June 21, 1922, a petition in error with case-made attached.

When the cause was called for submission on November 7, 1923, the Attorney General interposed a motion to dismiss the appeal, for the reasons that no notices of"appeal were ever served upon the court clerk of Tulsa county or upon the county attorney, nor was any summons in error ever served upon the Attorney General or the issuance and service of a summons in error waived by that officer. Counsel for plaintiff in error were given until November 10, 1923, to make proof of the service of notices of appeal. This proof has never been furnished.

For the reason, therefore, that no notices of appeal were served upon the court clerk or the county attorney of Tulsa county, nor any summons in error issued and served upon the Attorney General, or the issuance or the service of the same waived by him, the appeal is dismissed in conformity with the uniform holding of former decisions of this court. The cause is remanded to the county court of Tulsa county, with directions to enforce its judgment.


text:
    DAN MARA v. STATE.
    No. A-4345.
    Opinion Filed Feb. 16, 1924.
    (223 Pac. 204.)
    (Syllabus.)
    Burglary — Evidence Sustaining Conviction of Burglary in Second Degree. Evidence examined, and held sufficient to sustain the verdict and judgment.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Dan Mara was convicted of burglary in the second degree, and he appeals.
    Affirmed.
    W. Y. Pryor and C. B. Roelcwood, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Dan Mara, Earl Stanley, and W. A. Warren were jointly charged by information in the district court of Tulsa county with the crime of burglary in the second degree, alleged to have been committed on the 19th day -of January, 1922, by breaking into and entering the store building of one W. R. Jeffries, located in the town of Glenn Pool, Okla., and stealing therefrom certain goods, wares, and merchandise belonging to the said Jeffries, which were then and there kept in said store building. Upon a joint trial each of the defendants was found guilty as charged and the punishment fixed as to Stanley and Warren at seven years’ imprisonment in the state penitentiary and as to Mara at' two years in the state reformatory at Granite. ,

The defendant Dan Mara alone prosecutes this appeal and relies solely for reversal upon the proposition that the evidence as to him is insufficient to sustain the conviction.

The evidence is substantially as follows: Some time during the night of the 19th day of January, 1922, the storeroom of W. R. Jeffries, located in the town of Glenn Pool, Tulsa county, Okla., was broken into between closing time of that night and opening time of the following morning. Jeffries conducted a general merchandise store, in charge of his two sons Fred and Dave Jeffries, Among other things carried were groceries, dry goods, clothing,, tobacco, and other things not necessary to mention.

On the night of January 19, 1922, the store was closed about 8 o’clock. Fred Jeffries locked the store securely. On the morning of the 20th of January, at about 8 o’clock, Dave Jeffries, the other son of W. R. Jeffries, went to the store to open it and discovered that the front door was partially open and that the store had been entered some time during the night. From the appearance of the front door it was evident that a crowbar or other heavy instrument of that kind had been used to pry the double doors apart so as to permit the latches to slip and the doors to open.

Upon entering the store and making an investigation, Dave Jeffries discovered that a large quantity of merchandise had been taken from the store. A detailed description of this property is unnecessary. Suffice it to say that it included dry goods, groceries, tobacco, and also an eight-piece set of aluminum which was carried on display.

Upon discovery of the burglary and larceny a private detective agency in the city of Tulsa was notified. The Jeffries at that time carried a membership in such detective agency and were entitled to the services thereof. Dave Jeffries publicly stated that he would give a reward for information leading to the arrest and apprehension of the guilty parties, and received some information from a young lady who lived west of the town of Glenn Pool that led him to make the investigation which resulted in the arrest of these defendants and the recovery of a considerable quantity of the stolen property in the home of Earl Stanley on the afternoon of January 20, 1922, the day following the burglary, in the village of Stanleyville, which is about 8 miles west of the city of Sapulpa in Creek county, Okla., and about 20 miles from Glen Pool.

Just what this information was is not disclosed by the record, as the witness who gave it could not be located at the time of the trial.

After receiving the information, however, Dave Jeffries went to the town of Heifer, and together with Mr. Hicks, an officer, and Mr. Davis, a private citizen, went to the city of Sapulpa, where they procured a search warrant to search the premises of Earl Stanley. Armed with this search warrant, they arrived at Stanley’s house about 4 o’clock that afternoon and knocked on the door and were told to come in. Stanley was not present, but the defendants Mara and Warren and a boy by the name of Stansberry were in the house. Mara was found wearing a red flannel shirt which Dave Jeffries identified as one of the shirts taken from the .the Jeffries store on the night before. Warren was wearing a pair of blue overalls of the game brand and description of the kind taken from Jeffries store the night before and the paper brand was still on them. Stanley was also wearing a shirt which answered the description of some of the merchandise taken from said store. Besides the property found on the persons of these defendants, a search of the premises disclosed a large quantity of the stolen property, some of which was positively identified by marks and brands, the rest of which answered exactly the description of the property taken and was of the same kind as that taken; bnt the entire quantity of property stolen was not found. That which was positively identified was commingled with that which Dave Jeffries was not able positively to identify except as to kind and general description. This property included piece goods concealed in two sacks and hidden under the bed, and handkerchiefs, shirts, embroidery, lace, buttons, gloves, tobacco, garters, ladies’ hose, men’s, hose and other things too numerous to mention, which also included the eight-piece aluminum set and a 30 by 3 Goodrich automobile casing, which was identified by the number thereon.

Shortly after this property was found, Earl Stanley drove up in an automobile and was arrested together with the other parties, Mara, Warren, and Stansberry. When arrested Stanley was driving a car with a diamond tread easing, and a car with a diamond tread had been stopped in the street in front of Jeffries store on the night of the burglary, and evidently somebody had loaded some of the groceries into that car because some lima beans which had been stolen leaked out of the bag, forming a line from the store over to where the automobile with this casing had stood, and there the line of beans stopped. Some of the oil cloth which was stolen from Jeffries store was found in Stanley’s car at the time of his arrest.

When the defendants Warren and Mara were questioned as to how they happened to be at Stanley’s and as to where and how they came into possession of the property found there, some of which they were wearing, they remained silent and refused to say anything. Stanley said nothing until the officers began to take the property away, when he take property that did not belong with the property stolen, called their attention to the fact that they were about to

None of the defendants took the witness stand, neither did they introduce any other witnesses in their behalf.

The foregoing is a concise statement of the material evidence in the case. There were other numerous details which we deem it unnecessary to state and which we consider do1 not involve the merits of the question of the sufficiency of the evidence.

It is contended that the evidence as to Dan Mara is insufficient to connect him with the commission of the burglary, in that it only tends to show that on the afternoon following the burglary he was found in the house of Earl Stanley, his codefendant, with a shirt on which was of the same brand as some of the shirts taken from the store.

That is not the only evidence to connect Mara with the commission of this offense. True, he was found wearing a shirt which the evidence discloses beyond question was one of those stolen from the Jeffries store, but he was also at the same time found in Stanley’s house exercising, in conjunction with his codefendant Warren, apparent domination and control over a large quantity of the other property stolen the night before from Jeffries store. Also when questioned he refused to make any statement as to how he happened to be at Stanley’s house, or as to how he happened to be wearing the shirt or as to where he got it; nor did he say anything that would in any way tend to explain his possession of the stolen property in any manner consistent with his innocence.

That defendant’s recent possession of property shown to have been stolen at the same time and from the same place of the alleged burglary is a circumstance which the jury may weigh and consider in connection with all the other evidence and circumstances in the case is a well-established rule of evidence in burglary eases. 4 E. C. L. 440, § 34.

The presumption arising from the possession of stolen property is one of fact and not of law, and possession of property recently stolen, unexplained, is a circumstance to be considered and given such weight as the jury may see fit. Cox v. Territory, 2 Okla. Cr. 668, 104 Pac. 378; Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726.

Mr. Bishop says: .

“When the fact of a theft has been shown, and the question is whether or not the defendant committed, it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such othér facts as ought reasonably to influence a juror’s opinion. 2 Bish. New Cr. Proe. par. 740.”

It was not necessary, in order to establish the defendant’s guilt, that any of the witnesses should have seen him or his ■ codefendants in the vicinity of-the premises about the time the burglary was committed. It seldom happens that perpetrators of the offenses of burglary or larceny can be identified by witnesses who saw the act and recognized the defendants in the commission thereof. Eesort, therefore, must ordinarily be had to circumstantial evidence in cases of this kind. The significance of the fact that a large quantity of this stolen property of all descriptions, from lard to a lady’s garter, was found out there in the possession of the defendants at Earl Stanley’s home, part of it upon this defendant’s person and part of it in Earl Stanley’s automobile, and part of it scattered in different places around Stanley’s residence, some up in the loft, some in the kitchen, and some under the bed in gunny sacks, are very significant circumstances pointing to the guilt of these parties, including this particular defendant. Another significant, circumstance is the fact that the automobile in which Stanley was found riding the next day had a casing of diamond tread like the one whose track was discovered in front of the burglarized store, and the large quantity of property taken indicates that more than one person accomplished the burglary and larceny. The circumstance that this defendant, together with his codefendant Warren, were found in Stanley’s residence in possession of this stolen goods when no one was at home, is also' very significant. It is rather unusual to say the least. The fact that this defendant made no effort to explain his presence at Stanley’s home or his possession of the shirt found upon his person is another significant circumstance.

The weight of all this evidence was for the jury. The province of this court is to determine whether or not there was a reasonable basis in the evidence for the jury to determine, as reasonable men, that the defendant was guilty of the crime charged. We think there was, and that the evidence is sufficient to sustain the verdict and judgment as against this ■ defendant.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    CHARLEY FLANDERS v. STATE.
    No. A- 4141.
    Opinion Filed Feb. 16, 1924.
    (223 Pac. 202.)
    (Syllabus.)
    Larceny — Evidence not Sustaining Conviction for Cattle Theft. In a prosecution for cattle theft, evidence stated in the opinion, and held insufficient to sustain a conviction.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    Charley Flanders was convicted of the larceny of a domestic animal, and he appeals.
    Reversed and remanded, with directions to dismiss.
    Bert Van Leuven and W. H. Kornegay, for plaintiff in error.
    George F. Short, Atty. Gen., and N. ~W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried for cattle theft, upon an information charging that he did March 28, 1921, take, steal, and carry away one bull calf and one heifer calf, the personal property of Hutton Vore. The jury returned a verdict finding him guilty as charged in the information and assessing his punishment at imprisonment in the peniteniary for a term of two years. He has appealed from the judgment rendered upon such conviction.

The first contention is that the evidence is insufficient to sustain the verdict.

The testimony shows that defendant’s place adjoins that of the prosecuting witness, Vore, their houses were about a mile and a half apart. Vore had a large number of cattle, all but about fifty of which he moved to a pasture in the Osage, and returned Saturday evening, March 26, 1921. Vore testified:

“ I had a little bull calf and a little white-face heifer calf that always stayed together, running on the wheat field. I missed them Monday after returning from the Osage; the next day I found the heifer on defendant’s wheat and drove it home; the following day George Cotner, who works for me, brought the little bull calf home; it had a yoke on and had an undercrop out of each ear. The bull calf was put in a lot, and I told Cotner to leave him there until I got back from Kansas City; I didn’t want any one to see him. The calf remained there 10 days; on the 7th of April I took the calf to Jack Morrell’s place and put it in his horse lot; Jim Triethart assisted me; my father has a place between Jack Morrell’s place and the defendant’s place. Morrell’s place is 2y2 miles south of me. I rode west a mile and a half to where Morrell was fixing fence, and I told him what I had done; the next morning I went to a hill a mile south of my place and laid down; after a while I decided I was in the wrong place, and went another mile south and about a quarter east to the top of another hill in the corner of defendant’s pasture. As I was laying there I saw two men driving two animals aeross Morrell’s pasture; I watched them until they came out of Morrell’s gate, and they went out of sight; in a few minutes I saw two calves coming out of the brush, about a quarter of a mile from me; I saw defendant open a gate to run these two calves into a field; the little bull calf jumped through the fence, and the heifer calf went through the gate into Bill Triethart’s pasture. I rode down. Nelse Whitmire, a colored man, was standing there; I asked him if he wanted to see a cow thief caught, and he said he did. I rode around to where defendant had just fixed the fence where the calf jumped through; I said, ‘Hello, Charley, have you had a few of them out?’ He said, ‘Yes, I had a couple of calves gone so long I thought they were dead.’ I said, ‘Charley, you don’t mean to tell me that little bull calf is yours?’ He said, ‘No, Hut; that calf is not mine; I told George Cotner yesterday that I had marked that calf through a mistake; I told the boys that helped me yesterday that I had marked the wrong calf, and I told Jack Morrell a few minutes ago that I had marked that calf through a mistake.’ I said, ‘Yes, I know that; I have been watching you all day.’ I stood up in my stirrups, and said: ‘Charley, haven’t I told you I would kill you if I caught you stealing my cattle?’
“He said, ‘Yes; but I marked that calf through a mistake; you come with me and see another one like it that is mine, and you will not feel so bad about it.’ He claimed that he had one just like it. I said, ‘I have come to take that calf home; let’s look at that other calf;’ and we started up the pasture to look at the other calf. We rode along and I said, ‘You are an amateur in this game; you are just the goat; the brains have been staying at home; they are getting you and a few more boys to drive these calves through the country and will probably slip you $25, and if it is a big deal they will slip you $50.’ He said, ‘I never did drive any cattle, Hut; you ought not to feel that way towards me.’ We went by Charley’s place. He said, ‘Let’s leave your calf here and look at the other one.’ I said, ‘No; there is only one way to look at that, and that is throw them together;’ and we drove it up there. He said, ‘Don’t they look alike?’ I said, ‘Nothing, only their white faces; my calf is a motley-faced calf, and yours is a pure white-face calf.’ So I went on then.”

He further testified:

“His calf might have been a month or two younger than mine. He was sucking his mother and was in good shape, and my calf was a thief calf that had been rustling for himself. His calf was a white-face calf, just a small ring around its left eye. My calf was a lighter red than his, and had a red spot around its eye half .as big as your hand. We rode north. I told him, ‘You talked me out of prosecuting Eusty Hodge on the steer that he stole and shipped from Edna; you talked me out of that, and you are not going to talk me out of this.’ He said, ‘You don’t think I had anything to do with that?’ I said, ‘Nothing, only you talked me out of prosecuting him.’ I said, ‘If you get out of this, it will be by the skin of your teeth, and you had better get the best damn lawyer in the state.’ He said: ‘Hut, rather than have you believe I stole that calf, I would give you 4 or 5 times the worth of that calf to get you not to think I tried to steal it.’ I said, ‘Yes, I guess' you would give me 10 or 15 times the worth of it for me to keep my damn mouth shut, but you will not do it,’ and I rode off and left him.”

He further testified the heifer calf that he had that day “was not my calf; that I judge belonged to him.”

On cross-examination he stated:

“I don’t know that I was laying a trap; I told Morrell I had put a calf in his lot and for him to go to Charley and get his cow and see if that was his calf, and to tell Charley that some of his stuff.was with him.”

George Cotner testified that he worked for Yore; that he found the heifer calf on defendant’s wheat and found the bull calf in the defendant’s pasture, and that it was marked and yoked and had been castrated.

Jack Morrell testified that he went to defendant’s place to get a cow and told the defendant that there was a calf in his pasture with his earmark, and there was a heifer in the pasture that was claimed by the defendant and marked; that the bull calf in question was taken away by defendant; that to him the calves did not look alike, but it was possible to mistake them.

Jim Triethart testified that he was working on his father’s fence and saw defendant in company with his nephew Delbert; marking a calf, and that he saw the calf after it was yoked; that he helped Hutton Vore take a calf to Morrell’s two or three days afterwards.

Sam Balch testified that defendant ran from 50 to 200 cattle; that he saw both bull calves and they were about the same size, though defendant’s calf was fatter than Vore’s; that he had been a brand inspector at Kansas City and the calves were distinguishable, but possibly could be mistaken, but not probably.

As a witness in Ms own behalf, defendant, Flanders, testified:

“ I was born and lived all my life in that country; my wheat field joined Mr. Yore’s, the fence was down and his cattle got over in my wheat nearly all winter, and my cattle would crawl through on to Mr. Vore’s wheat; I got some yokes, and put on. five or six of my cattle, and marked those that were not branded. I had 11 head to brand. I ran onto this white face calf sucking his mother, and I knew right then that I had marked somebody else’s yearling, so when we got through branding I rode to Mr. Vore’s place and asked George Cotner where Mr. Vore was. I told him that I had one calf gone and I thought maybe they had taken my calf through a mistake; Mr. Cotner said, ‘No; your calf is over at Doc Devener’s’; and I said I judged that I had marked, somebody’s calf through a mistake; I was referring to the bull calf; and Cotner said, ‘We have got all of ours branded; both bull calves are white face Herefords, about the same size.’ I had built three quarters of a mile of fence, four wire, and Mr. Vore was to build the quarter between our two wheat fields, but never did build his fence, and left it open. That morning Mr. Morrell came to me and said he had some kind of a disease among his herd, and was liable to be quarantined, and he said, ‘I don’t know, but I think that one of your yearlings is down there with mine; he has got your mark on it,’ so I went over with him and I described this calf, and he said, ‘Yes; that is the calf;’ I told him that I had marked somebody’s calf through a mistake; as we were riding along I saw a little heifer laying down, and I said, ‘There is one of my heifers.’ He said, ‘No; that is not your heifer;’ and I said, ‘ I think you are mistaken, we will catch this calf and look him over.’ Mr. Morrell took down his rope and missed him; then I caught the calf and threw him; I knew it was my heifer calf and marked it right there. I had to drive these calves a quarter of a mile to turn them in; Mr. Yore rode up and' said, ‘You are putting them in, are you?’ I said, ‘Yes; I found one of mine that I thought was dead.’ He said, ‘How long have you owned the other one?’ I told him I had not owned that bull calf; that I was at his place and told George Cotner about marking this calf through a mistake. "We drove these two calves about two miles north until we found the other; he said, ‘Let’s put them right together,’ so we did; he looked at them, and said, ‘Well, you have got an alibi.’ He said if I beat this case it would be by the skin of my teeth. I tried to reason with him, but there was no reason in him at all. We had had some trouble over stock; I paid him damages to his crop by my hogs, and some of my hogs were killed on his place. He met me and was very angry;, he got off his horse and jumped on me- in my ear; he cut me up a little with his spurs; I threw him over on the back seat, but I did not strike him.”

George Yail testified:

“I live a mile east of defendant’s ranch; in March I was working on Flander’s ranch, at the time defendant marked a bull calf that was not his; I was sowing oats; Harry Freeman was driving a disk; it was the noon hour; he brought the dinner over and said that he had marked a bull yearling belonging to somebody else.”

James Ray testified that he was a farmer and stockman, and, with Flanders, Jack Morrell, Jordan Morris, and Sam Balch, he examined these calves together and separately; that the same description would cover both; that looking at the calves together and picking out certain points there was a difference that was noticeable, but that he could not tell any difference in looking at them separately.

Jordan Morris testified that he had been handling cattle nearly all his life; that with-others he examined these bull calves; that seeing them separately it did not look like there was any difference in their ages; that they put them together that day and Mr. Yore’s seemed to be the largest; that they looked very much alike, and you could easily take one for the other.

It is contended by counsel for defendant that the evidence is insufficient to sustain the verdict.

It is the peculiar province of the jury, as we have often said, to weigh the testimony and pass upon the credibility of the witnesses. On the other hand it becomes our duty, under the law, to examine the record in cases of this character, and, if the verdict is not sustained by substantial evidence, to set the same aside.

Without considering the evidence which is favorable to defendant, but taking into consideration that only which might tend to prove his guilt, there can be no doubt that it is insufficient tó sustain a conviction. There was no concealment in any way, and the testimony of the owner is that defendant told him that he had marked the calf by mistake. As said by this court in Lockhart v. State, 10 Okla. Cr. 587, 139 Pac. 1158: .

"Where the taking is open, in the presence of others, and there is no subsequent attempt to conceal the property, and no denial, and where possession is not obtained by force, trick, or stratagem, a strong presumption of fact arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a jury may legitimately infer a felonious intent.”

Having reached the conclusion that the evidence is insufficient to sustain the conviction, it is unnecessary to consider any of the other questions raised and discussed in the brief. • •

The judgment of the lower court is accordingly reversed and the cause remanded, with direction to dismiss.

MATSON, P. J., and BESSEY, J.,' concur.


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    WILLIAM FOWLER v. STATE.
    No. A-4331.
    Opinion Filed Feb. 18, 1924.
    (223 Pac. 206.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence Sustaining Conviction for Attempt to Manufacture'. In a prosecution for manufacturing intoxicating liquor, evidence considered, and held sufficient to sustain conviction for attempt to commit the offense charged.
    2. Trial — Verdict Sufficient to Sustain Conviction for Attempt to Commit Offense Charged. On trial of an information for manufacturing intoxicating liquor, the court instructed the jury, in effect, that the evidence was insufficient to show defendant was guilty of the offense charged, and submitted the issue of attempt to commit the offense charged, and the punishment prescribed for an attempt to commit the offense. The verdict was, “Guilty as charged in the information herein, and assess his punishment at a fine of $225 and imprisonment in the county jail for 60 days.” Held, that the verdict was sufficiently definite and certain as to the offense for which the defendant was convicted.
    Appeal from Conuty Court, Seminole County; B. F. Davis, Judge.
    William Fowler was convicted of an attempt to manufacture whisky, and he appeals.
    Affirmed.
    A. M. Fowler, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen,, for the State.
   DOYLE, J.

In the information in this case, appellant William Fowler, Holman Jackson, and Walter Miles were charged with manufacturing corn whisky, “by a method of fermentation and distillation from a mixture of cornmeal and other substance unknown to the county attorney but forming a substance commonly called ‘mash,’ containing alcohol as a by-product, by and through and by means of a certain apparatus or plant known as a ‘whisky still,’ constructed out of a steel tank, a galvanized iron pipe, a wooden thumping keg, a copper worm, and a cooling wooden barrel.”

Upon his separate trial the jury returned a verdict finding William Fowler “guilty as charged in the information herein and assess his punishment at a fine of $225 and imprisonment in the county jail at 60 days.” He has appealed from the judgment .rendered upon such conviction.

The only testimony in the case was that of two officers.

J. E. Lester, undersheriff, testified that with Deputy Sheriff Pool, he went about 15 miles north of Wewoka, on the farm occupied by Walter Miles, and stayed all night; the next morning, about 10 o’clock, he saw the defendant helping to put a still together. He identified the copper worm and stated:

“I saw defendant arranging this pipe to run the whisky off. There was a water barrel, a coal oil or gasoline tank, I don’t know which, and from that barrel a pipe into a keg, and from the keg another pipe into a barrel of water or a barrel that there was to have been water in. He was fastening this on the end of this pipe in the barrel when we came in on them. We also found some mash there, made out of cornmeal, sugar, and water. There was a fire under the boiler, and the mash in the boiler was just about ready to boil.”

J. A. Pool, deputy sheriff, testified that he was with the undersheriff, and his testimony was substantially the same as that of the first witness.

When the state rested, counsel for defendant moved the court to advise the jury to return a verdict of not guilty, for the reason that the testimony is insufficient to establish the guilt of the defendant, which the court refused to do. Exception allowed.

The court instructed the jury, in part, as follows:

“3. You are instructed that in this state it is unlawful for any one to manufacture intoxicating liquors; but in this connection you are instructed that the state has failed to prove that the defendant is guilty of manufacturing liquor and that you cannot convict him of that offense.
“4. You are instructed, however, that embraced in the offense of manufacturing is the offense of attempting to manufacture liquor. So you are instructed that it is a violation of law to attempt to manufacture ‘corn whisky,’ and the punishment provided by law for the crime of attempting to manufacture corn whisky is a fine of not more than $250 and imprisonment in the county jail for a period not more than 90 days. (Excepted to by the defendant.)
“4A. Any person who does any act towards the commission of a crime, but fails or is prevented or intercepted in the perpetration thereof, is guilty of an attempt to commit such crime. (Excepted to by defendant.)”

The first error assigned is based on exceptions taken to rulings of the court sustaining the sufficiency of the information.

It is sufficient to say that the objections made to the information were properly overruled.

The next assignment is that the verdict is not sustained by sufficient evidence, and that the court erred in refusing to advise the jury to return a verdict of acquittal.

The record shows that the only issue submitted to the jury was the included offense of attempt to commit the crime charged and every essential element of the included offense was established by the evidence beyond a reasonable doubt.

Finally, it is contended that the verdict is insufficient to support the judgment and sentence.

Our Criminal Code provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” Section 2740, Comp. St. 1921.

Failure of a verdict to name the offense of which the jury found the defendant guilty does not invalidate it, if from its language, as a whole, no doubt can arise as to the offense of which he was convicted. Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824.

The record shows that attempt to commit the offense charged was the only offense submitted to the jury.

It follows that the verdict is sufficiently definite and certain as to the offense of which the defendant was convicted, and .was sufficient to authorize the court to pronounce judgment and sentence.

The instructions seem to have correctly given the jury the law of the case.

Upon the record before us we are satisfied that the defendant had a fair trial. Accordingly, the judgment is affirmed.

MATSON, P. J., and BESSBY, J., concur.


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    FRANK KLEIN v. STATE.
    No. A-4338.
    Opinion Filed Feb. 18, 1924.
    (223 Pac. 201.)
    (Syllabus.)
    1. Trial — Failure to Instruct on Circumstantial Evidence Held Error. Where, in a criminal case, circumstantial evidence solely is relied on for a conviction, it is error for the trial court to fail and refuse to instruct on the law applicable thereto when the defendant requests it.

      2. Intoxicating Liquors — Evidence not Sustaining Conviction for Transportation of Liquor. In a prosecution for transporting intoxicating liquor, evidence held insufficient to support a verdict of guilty.
    Appeal from County Court, Custer County; B. J. Lindley, Judge.
    Frank Klein was convicted of conveying intoxicating liquor, and he appeals.
    Reversed.
    E. L. Mitchell, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that Frank Klein in Custer county, November 13, 1921, did unlawfully and willfully convey and transport about one-half pint of corn whisky from a place unknown to another place described in Custer county. The jury returned a verdict finding him guilty, and asséssed his punishment at a fine of $50 and a jail term of 30 days. The reverse the judgment rendered on the verdict he appeals.

The evidence shows that on the date alleged Frank Young, a deputy sheriff, and Claude Woodring were driving from Butler to Clinton, and saw defendant standing by his ear, which was stopped by the side of the road. They got out of their car. Defendant appeared to be somewhat intoxicated, and examined his car, and found it to be out of gasoline. Young then searched defendant to see if he had anything on> him, and then searched the car, and found one-half pint bottle full of corn whisky under a carpet in the car.

When the state rested, defendant demurred to the evidence, and moved the court to advise the jury to return a verdict of acquittal, which the court refused to do.

The defendant testified that he was having some trouble with.his ear, the clutch slipping, and' he was out of gasoline; that he kept his car at the Liberty Garage, in. the town of Butler, that he did not put any liquor in the car, and did not know that the half pint bottle of whisky found by the officers was in the ear.

The refusal of the trial court to direct a verdict of acquittal is assigned as error, and error is assigned on the admission of alleged incompetent evidence on the trial.

It appears from the record that the testimony of the officers and the whisky in question were admitted in evidence against the defendant’s objections, on the. ground that the officers exceeded their authority when they searched the defendant and his automobile without a search warrant. The first of these contentions is based on the theory that the evidence relied on to establish the defendant’s guilt, even if its competency be admitted, wholly fails to do so.

It is a well-settled rule in this jurisdiction that a conviction for violating a criminal law of the state may be had upon circumstantial evidence alone, when it is of such force as to reasonably exclude every hypothesis of the defendant’s innocence. The defendant presented an instruction on the law of circumstantial evidence, and requested the court to give the same to the jury; this request was refused, and the court refused to charge on the law of circumstantial evidence.

It is a recognized rule in this jurisdiction that, where the testimony in a criminal case is entirely circumstantial, it is the duty of the court to instruct upon the nature of circumstantial evidence. Such evidence should be expressly defined, and the rules governing its effect concisely stated. The instruction asked for, or one covering the law of circumstantial evidence, should have been given. Under the evidence in this case it was error for the trial court to fail and refuse to instruct on the law applicable thereto, when the defendant requested it.

This court has held that, where the possession of an unlawful thing is open and obvious, so that any one within reasonable distance can readily see it, no search warrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. However, a search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little. The right of the citizen to be secure in his person and possessions from such unlawful search and seizure is as secure as the Bill of Rights can make it (Const, art. 2, § 30), and this right should be respected by officers and courts. Under the holding of this court in the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, the court erred in admitting the evidence over the defendant’s objections.

For the reasons indicated, the judgment of the lower court is reversed.

MATSON, P. J., and BESSEY, J., concur.


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    JACK MAHSEET v. STATE.
    No. A-4189.
    Opinion Filed Feb. 19, 1924.
    (223 Pac. 199.)
    (Syllabus.)
    1. Adultery — Evidence Sustaining Conviction. In a prosecution for adultery, the evidence held sufficient to sustain the verdict and judgment of conviction, and that no material error was committed on the trial.
    2. Evidence — General Law as to Inadmissibility of Evidence as to Other Offense Inapplicable to Offenses Involving Sexual Intercourse. The general rule that proof of another offense is inadmissible unless a part of the res gestae does not apply to offenses involving sexual intercourse; and evidence of other acts is admissible to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.
    Appeal from District Court, Caddo County; Will Linn, Judge.
    Jack Mahseet was convicted of adultery, and he appeals.
    Affirmed.
    Morgan & Osmond, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried for adultery on an information charging that in Caddo county, January 23, 1920—

“Jack Mahseet and Kardsey, then and there being, did then and there commit the crime of adultery, by then- and and there intentionally, unlawfully, willfully, and feloniously have voluntary sexual intercourse with each other, the said Jack Mahseet being then and there a married man, and not the husband of the said Kardsey, a female person; that this prosecution is commenced and is being carried on by Anna Mahseet, the wife of the said Jack Mahseet.”

The jury returned a verdict finding him guilty, and fixed his punishment at one year in the penitentiary. He has appealed from the judgment rendered on the verdict.

Counsel for plaintiff in error complains that the verdict of the- jury is not sustained by sufficient evidence; that the court erred in admitting incompetent evidence, and in the instructions given.

It would serve no useful purpose to enter into a discussion of the evidence. It is sufficient to say that it is ample to sustain the conviction. It appears that all the parties concerned are Comanche Indians, and the defendant and his wife have five children. Evidence was admitted that for one or two years preceding the date of the complaint defendant consorted with the Indian woman Kardsey. This evidence was properly admitted as tending to establish adulterous disposition between the parties. Woody v. State, 10 Okla. Cr. 322, 136 Pac. 430, 49 L. R. A. (N. S.) 479; Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731.

The instructions fully covered the law of the case, and no objection was made thereto.

Finding no error in the record, the judgment of the lower court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


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    EDGAR BREWER et al. v. STATE.
    No. A-4297.
    Opinion Filed Feb. 19, 1924.
    (223 Pac. 197.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction for Automobile Theft. In a prosecution for the theft of a Pord car, the evidence considered, and held sufficient to support the verdicts of conviction, and that no material error was committed on the trial.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Edgar Brewer and J. A. Newcomb were convicted of grand larceny, and they appeal.
    Affirmed.
    W. B. Richards, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that the defendants Edgar Brewer and J. A. Newcomb, in Tulsa county, on or about June 20, 1921, did steal a Ford touring car model 1921, of tbe value of $600, tbe property of tbe Tulsa-Rent-a-Car-Company. The jury returned verdicts finding each guilty and the punishment fixed at imprisonment in the penitentiary for terms of seven years. They have appealed from the judgments rendered upon such convictions, but there has been no appearance in their behalf on this appeal.

The errors assigned are that the verdicts are not sustained by sufficient evidence, that the court erred in admitting incompetent evidence, and because of irregularities in the proceedings by which said defendants were prevented from having a fair trial.

The evidence on the part of the state, which is undisputed, shows that the defendant Newcomb, on the date alleged, rented a ear from the Tulsa-Rent-a-Car-Company, a corporation and signed up the usual receipt for the car for the use of the same for an hour; that he signed the name R. A. Armstrong; that he did not return the car. A few days later the defendants appeared in Yukon and traded the stolen car to Mr. Compton, who runs a garage in Yukon, for a Paige car. Mr. Compton learned that there was something wrong with the ear. He called the Ford agency at Oklahoma City, and found that a ear with this motor number had been sold by the Ford agency to the Tulsa-Rent-a-Car-Company, and had been stolen from them.

The evidence further shows that these defendants drove the Paige car to Enid and there disposed of the same, and there they were arrested. The defendants did not testify.

While the defendants are not represented in this court, we have carefully examined this record and not one of the errors assigned can be sustained. The record presents not one proposition of law which has not been time and again decided by this court, and it would subserve no useful purpose whatsoever to specifically review the same. The case appears to have been fairly tried, and the verdicts appear to have been fully justified by the evidence.

The judgments appealed from are accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


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    J. P. WILLIAMS v. STATE.
    No. A-4167.
    Opinion Filed Feb. 21, 1924.
    (223 Pac. 193.)
    (Syllabus.)
    Witnesses — In Prosecution for Assault, Refusal to Strike Oiit Testimony on Cross-Examination as to Conviction for Violation of Liquor Law Held not Error. In a prosecution for assault and battery, evidence considered, and held sufficient to sustain the conviction, and that no reversible error was committed upon the trial.
    Appeal from District Court, Logan County; C. C. Smith, Judge.
    J. P. Williams was convicted of assault and battery, and he appeals.
    Affirmed.
    The Attorney General and N.'W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, J. P. Williams, was tried for assault and battery upon a complaint charging that he did willfully and unlawfully strike and beat one Laura James with a board. There was a trial by jury, a verdict of guilty, assessing a fine of $25 and a term of 20 days in jail. He has appealed from the judgment entered upon the verdict.

The errors assigned question the sufficiency of the evidence to support the verdict, and that the court erred in the admission and rejection of testimony.

As to the facts, it is sufficient to say that we have examined the evidence and are unable to discover any reason for disturbing the judgment for want of evidence to support it. The following question was propounded to defendant on his cross-examination as a witness in his own behalf:

“Q. Have you ever been convicted of a violation of the liquor laws of the state of Oklahoma? A. In a way I have, and in a way I have not. In one court I have, and I appealed the case, and the appeal has not been decided.”

Thereupon defendant moved the court to strike out the testimony of the conviction and instruct the jury not to consider the same, which motion was overruled and exception allowed. We think the court did not err in its ruling.

An examination of the record convinces us that there was no material error committed on the trial.

The judgment is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.