text:
    JESSIE ARNOTE v. STATE.
    No. A-6745.
    Opinion Filed April 13, 1929.
    (276 Pac. 242.)
    L. C. McLean, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith €. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county on a charge of having the unlawful possession of narcotics, and her punishment fixed at imprisonment in the state penitentiary for a term of three years. The defendant was jointly charged with one Tom Short. They were jointly tried and convicted, and this appeal is joint. The case as to Short has heretofore been abated, because of the death of said Short.

The record discloses that at the time charged certain officers with a search warrant went to the residence of defendant and her codefendant and made a search and found .2% grains of morphine tablets. Defendant admits the possession of morphine in a quantity forbidden by law, but contends that the same was prescribed by a physician for an illness and to relieve pain, and that its possession under such circumstances was not illegal. ¡She offered the testimony of a physician that he gave a prescription, and of a druggist that he filled the same, some 50 days prior to the time this morphine was seized. The state offered testimony of several circumstances indicating that defendant and her codefendant were engaged in disposing of or administering narcotics. This proof was that a quantity of capsules were found in the room, that some of them.contained morphine, that defendant and her codefendant attempted to destroy them, with some other circumstances.

Some contention is made that the search warrant is ■illegal, because of insufficient affidavit. Without setting out the affidavit or warrant, we are clearly of the opinion that the affidavit and warrant are well within the requirements announced by many decisions of this court.

The statute making it criminal to possess narcotics (section 8887, Comp. Stat. 1921) in part provides:

“* * * shap aiso be unlawful for any person * * * to have in his or her possession or under his or her control, * * * any quantity whatsoever of the aforesaid narcotic drugs other or more than one dose of such narcotic drugs, acquired and procured upon the prescription of a regularly licensed and actively practicing physician, * * * for legitimate medicinal use.”

There are some exceptions and provisos in the statute* but we find none that modifies the provision just quoted. There is undisputed evidence that the usual dose is one-foúrth of a grain, and that one-half grain is the maximum that can be safely given. The quantity possessed by defendant was more than that permitted to be possessed at any one time under any circumstances by any one other than a physician, pharmacist, or certain persons engaged in an excepted business. So, if the evidence should be held to show that the particular narcotics were acquired of a registered pharmacist on a prescription from a physician, both acted unlawfully, and a possession acquired in this manner would not be a defense. The purpose of this statute is to limit the disposing of habit-forming narcotics, and to limit the administering and use of the same to licensed physicians for legitimate medicinal purposes, or in the treatment of the drug habit itself. To prevent such illegal disposing or use, it has provided that no more than one dose may be possessed by any person, with the exception of physicians, etc., at any one time, and such dose must have been obtained upon the prescription of a duly licensed and actively practicing physician for legitimate medicinal use. The possession of the quantity of narcotics as shown by the evidence is clearly within the inhibition of the statute.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: 'CHAPPELL, J.

license: Public Domain

text:
    JESS CUDE v. STATE.
    No. A-6531.
    Opinion Filed April 13, 1929.
    (276 Pac. 240.)

      J. Q. A. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and W. P. Morrison, Co. Atty., of El Reno, for the State.
   'CHAPPELL, J.

The plaintiff in error, Jess Cude, hereinafter referred to as defendant, was convicted in the district court of Canadian county of the crime of grand larceny, and sentenced to serve five years in the state penitentiary..

When the state rested, the defendant demurred to the evidence offered by the state, for the reason that it was wholly insufficient to sustain the verdict of guilty, which demurrer was by the court overruled. The defendant filed a motion for a new trial, assigning the insufficiency of the evidence as one of the grounds for such new trial, which motion was overruled and exceptions saved.

The only question we deem it necessary to consider is the sufficiency of the evidence of the state to support the verdict. Briefly stated, the evidence appears to disclose the following facts: (1) That the property described in the information was stolen from Moreland. (S2) That the defendant was out with some boon companions all night. (3) A car supposed to belong to the defendant was tracked from a half a mile away from the home of Moreland to the home of the defendant by the marks made by a diamond tread tire. (4) That men’s tracks from Moreland’s garage led to this car, supposed to belong to the defendant, but no evidence was offered to show that the tracks were made by the defendant nor was the car tracked from the point one-half mile from the home of Moreland to the home of defendant, shown to be the car of the defendant. (,5) There is some evidence to show that defendant admitted similar offenses in Oklahoma county, but denied at all times the commission of this offense or any knowledge of who did commit the offense. T. C. Shacklett, sheriff, and C. A. Pierce, deputy sheriff, testifying for the state, both said that the defendant at all times denied having any part in, or knowing anything about, the offense alleged,in the information.

The state failed to find any of the property' in the' possession of the defendant or to connect the defendant with the larceny of the property, except by some suspicious circumstances. While it is true that this court will not ordinarily reverse a case for lack of evidence to support the verdict, yet, where from a reading of all the evidence it appears that the most that could be made to appear from the evidence is a suspicion that the defendant- might be guilty, this court will set aside such a conviction.

In the case of Hinsley v. United States, 1 Okla. Cr. 392, 98 P. 363, in the body of the opinion this court said:

“In harmony with the decisions of appellate courts generally, this court reluctantly disturbs the verdict of a jury upon the ground that the verdict is not supported by, and is contrary to, the evidence. This court will not set aside a verdict where there is a substantial conflict in the evidence. But, when there is no such conflict, and where there is an absence of evidence to support the verdict, it is the duty of this court to set aside the verdict. It is not the purpose of this court to invade the province of the jury in the determination of questions of fact; but in the interest of justice this court will not permit a verdict to stand unsupported by competent evidence. We have carefully read, closely considered, and analyzed all the testimony in this case, and we are unable to harmonize the verdict with the evidence.”

See, also, Brown v. State, 3 Okla. Cr. 42, 104 P. 78; Teague v. State, 10 Okla. Cr. 43, 133 P. 1134.

This court has repeatedly held that evidence of similar transactions may be introduced, not for the purpose of establishing the guilt of the defendant, but for the purpose of showing a general plan or scheme to commit that class of crimes. There is some evidence in this case tending to show that the defendant had been guilty of similar crimes, and the trial court properly instructed the jury that such similar offenses could not be considered by the jury for the purpose of determining the guilt or innocence of the defendant. But evidence of similar offenses cannot be considered by the jury, where the state wholly fails to connect the defendant with the crime charged in the case on trial.

We think the evidence in this case wholly fails to connect the defendant with the commission of the offense charged against him, and that all the evidence that was before the jury was some suspicious circumstances and the evidence of the commission of similar offenses. While we are reluctant to disturb the verdict of the jury upon the ground of the insufficiency of the evidence, yet the due administration of justice demands that we shall set such verdict aside when the state wholly fails to connect the' de-< fendant with the commission of the offense charged.

For the reasons stated, the cause is reversed and remanded, with instructions to the trial court to dismiss the case, unless the state has additional evidence tending to connect the defendant with the commission of the offense charged.

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


author: EDWARDS, P. J.

text:
    J. B. LINK v. STATE.
    No. A-6625.
    Opinion Filed April 13, 1929.
    (276 Pac. 240.)
    M. W. Gross, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for th» State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Choctaw county of permitting sawdust from a sawmill operated by him to be deposited in a stream, and was sentenced to pay a fine of $100.

The prosecution is under section 6526, Comp. Stat. 1921, and is as follows:

“No person shall deposit, place, throw, or permit to be deposited, placed or thrown, any lime, dynamite, poison, drug, sawdust, crude oil or other deleterious substance, in any of the streams, lakes, or ponds of this state, and any person violating the provisions of this section shall be punished by a tine of not less than one hundred dollars nor more than fiVe hundred dollars, or by imprisonment in the county jail not exceeding one year.”

The plaintiff in error admits depositing sawdust in the stream as alleged, but contends that as he deposited oak sawdust only and that oak sawdust is not injurious to fish, the statute does not apply. We do not so read the law. The statute forbids the deposit of sawdust in a stream. By its terms it is not limited to such sawdust as is injurious to fish, and we cannot presume that was the sole purpose of the law.

The evidence sustains the judgment, and no error requiring a reversal is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: EDWARDS', P. J.

text:
    WINSTON MERRIWEATHER v. STATE.
    No. A-6644.
    Opinion Filed April 13, 1929.
    (276 Pac. 239.)
    J. G. Harley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS', P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county on a charge of a second and subsequent violation of the prohibitory liquor law and was sentenced to pay a fine of $250 and to serve three years in the state penitentiary.

The record discloses that at the time charged certain officers armed with a search warrant made a search of defendant’s premises and found a half-gallon of whisky. There was evidence that these premises were a place of public resort and bore the reputation of being a place where liquor was sold. It was also shown that prior thereto defendant, under the name of Mayweathers, had been informed against in the county court for a violation of the liquor law and had pleaded guilty to such charge and had served time in the discharge of such sentence. Defendant did riot take the stand and offered no testimony. The judgment was entered on January 4, 1927, and the appeal was lodged in this court in June, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. The proof of the former conviction Is not entirely satisfactory, but the record as a whole is free from jurisdictional or fundamental error. Where no briefs in support of an appeal from a conviction for a felony are filed in this court nor appearance for oral argument made, and no jurisdictional -or fundamental error is apparent in the record, this court will affirm the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    E. B. ALLEN v. STATE.
    No. A-6616.
    Opinion Filed April 13, 1929.
    Rehearing Denied April 27, 1929.
    (276 Pac. 1117.)

      Clay Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Jackson county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The judgment was rendered in January, 1927, and the appeal was lodged in this court in May, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. No jurisdictional or fundamental error is apparent.

The case is affirmed.


text:
    TOBE CONLEY et al. v. STATE.
    No. A-6615.
    Opinion Filed April 13, 1929.

      Rehearing Denied April 27, 1929.
    (276 Pac. 1117.)
    •Clay Snodgrass, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted in the county court of Jackson county for transporting liquor, and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was rendered in January, 1927, and the appeal was lodged in this court in May, 1927. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional or fundamental error.

The case is affirmed.


text:
    JESSIE MOORE v. STATE.
    No. A-6554.
    Opinion Filed April 13, 1929.
    Rehearing Denied May 11, 1929.
    (276 Pac. 1118.)
    J. Q. A. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that at the time charged defendant sold one gallon of wine to one B. Minton. Defendant denied that he made the sale or knew Minton, thus presenting a sharp conflict in the evidence. The jury, however, saw the witnesses, and it was for them to determine whom they would believe or disbelieve.

The judgment was rendered in February, 1927, and the appeal lodged in this court in April, 1927. No briefs in support of the appeal have been filed. The evidence sustains the judgment, and no jurisdictional or fundamental error is apparent.

The case is affirmed.


author: DAVENPORT, J.

text:
    RAY HILL v. STATE.
    No. A-6549.
    Opinion Filed April 20, 1929.
    Rehearing Denied June 1, 1929.
    (277 Pac. 595.)
    Ray & Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with Herman Morgan by information in the district court of Comanche county with willfully, unlawfully, feloniously, intentionally, and wrongfully committing an assault and battery upon R. W. Plummer, by then and there striking the said Plummer upon the head with a dangerous weapon, to wit, a billy; and kicking the said Plummer upon the head and body with such force as would likely produce the death of the said Plummer. A separate trial was had, and the jury returned a verdict finding the defendant Ray Hill guilty of assault with a dangerous weapon with intent to do bodily harm, and left the punishment to be fixed by the court. The court sentenced the defendant to two years’ imprisonment at hard labor in the penitentiary at McAlester. Motion for new trial was filed, considered, overruled, and defendant appealed to this court.

The testimony in this case in substance is that R. W. Plummer was a policeman in the city of Lawton, on The 31st day of July, 1926, and defendant Ray Hill, in company with Herman Morgan, was on the street, and passed Plummer in front of the O. K. Transfer office. Herman Morgan called to Mr. Plummer and wanted to see him. Hill, the defendant in this case, was standing on the curb. Witness Plummer says he walked over there, and Morgan told him that Hill could whip him, and used vulgar words. Witness said he told Morgan that he would have to stop using such language, and that he told them they would have to go to the police station and settle the argument. At that time defendant said, “Keep your hands off of me,” and stepped around the witness, and that “Morgan struck me. Defendant went around and tried to get his arm around me and Morgan continued to hit me; I caught around Hill’s arm and neck and proceeded to work on him; I knew I could handle him and supposed the crowd would take care of Morgan; I went to the ground with Hill, and Morgan went wild and stamped me in the back and neck; I kept Hill down until the latter part of the fight; Hill did not do anything until the fight was about over; I did not need the club and I threw it out to one side, it had a strap on it and about half the time it was holding my hands; when I threw the club down I had Hill around the neck, we was down; I was on top of Hill; Morgan continued to stamp on my back and neck; he kicked me once on the jaw and back, it was a stamp; I don’t have any idea how many times he stamped; I heard him remark to get a club and kill him, he was saying .something I could not remember, I was groggy, I got hit on the head several licks, and once right over (indicating), I was struck four or five times on the head; hit me heavy licks; at the time he struck me I was down and he was up. The sheriff came and stopped the fight. The club was about twenty-two or twenty-four inches, it was a rosewood club I was carrying.”

On cross-examination witness Plummer stated Morgan made the first motion to strike him, when Hill grabbed him, Morgan was slugging him. “Morgan was behind and on one side of me; Hill was on the other side of me; Hill ran behind me and I reached around and got him by the neck; Hill did not straighten me out that time, had only grabbed me; he grabbed me around the waist; I grabbed him around the neck; I had the club on my arm at the time; Hill and I went to the ground together and Morgan kept stamping me on the back and neck, and I went to work on him; Hill commenced hitting me when I caught him, I don’t recall; I might have had hold of his ear and I might have bit it, it was bleeding; I might have gotten my thumb in Hill’s eye, I don’t know whether I did or not; I straightened Hill once with the club and then I saw there was'no use to burst his head with it, as I could handle him; up to that time the club was on my arm, 1 then threw it down.”

G. H. Frampton testified to coming on the scene about the time the difficulty was over. Witness said, “I saw it was Plummer, I was not quite in the crowd; about that time Hardy came in from the other side and grabbed Hill and stepped over Plummer’s leg, and about that time Morgan started out at the west side and I saw him and took up the club; Plummer’s gun was laying on his breast, just laying flat, was not pointed at any one; I don’t know what became of the gun.”

Other witnesses testified along the same line indicating that Morgan, Hill, and Plummer were fighting; that Morgan told Plummer Hill could whip him; that they got into a fight, and Plummer had a police billy, and that Hill grabbed Plummer, and Plummer grabbed Hill around the neck and was hitting- him, and they went to the ground together and continued to scuffle and fight, and that Morgan finally got hold of the policeman’s billy that Plummer was carrying and struck Plummer several times on the head and shoulders.

The defendant took the stand in his own behalf, and stated, in substance, “It was about 5 or 5:30 in the after, noon when I met Morgan; two or three minutes before this occurred we were walking up the street near the O. K. Transfer, and Morgan stopped and called Plummer over and said, T want to speak to you a minute Rich’; I paid no attention to what was said; we had some difficulty and I said, ‘Let’s go down to the police station,’ and the first thing I. knew Rich drawed back and made a lick at Herman Morgan and I tried to grab his club; he hit me square over the head and I clinched him and he grabbed me around the neck and bit my ear, and hit me two or three times over the head, he had my head under his arm; he had his thumb in my eye, and we went down to the sidewalk; while we were down he got hold of my ear and chewed on it and still had his thumb in my eye, he had me dazed so I could not do anything; he hit me two or three times with his club after he got me down; some way I got hold of the club; he raised up and I raised up too and I saw hé went after his gun; he had it right in front, right like that (indicating); I hit him hard with the club and he turned his arm up and 1 hit him on the arm; about that time Mr. Frampton ran in and he said, ‘Let me have the club;’ he got it and Morgan said, ‘Look out, Ray, he is going to shoot you,’ and I turned around and Morgan was holding the gun and I started down-the street and got down to the Mistletoe, and Frampton said, ‘Wait a minute,’ and he took us to the county jail.”

C. E. Hanks testified for the defendant that he saw Ray Hill after he was brought to jail the evening of the difficulty; that his ear was bleeding and his eye wa's bloody, and his eye itself was red.

This, in substance, is the testimony, which clearly shows the difficulty on the street was what might be termed a general street fight. The record in this case shows that the defendant in this case and the other defendant, Herman Morgan, were tried separately.

The defendant in his assignment alleges there were nine errors committed by the court in the trial of the case. In his brief the defendant does not urge the errors assigned, but insists that the punishment inflicted in this case was excessive and unusual under the facts as disclosed by the record, and insists that the judgment in this case should be modified. The defendant in his brief states that Herman Morgan, who was with the defendant and took part in the difficulty, was given 30 days and a fine of $100, and insists that the judgment against the defendant should be modified to the same punishment as Herman Morgan received.

The defendant was convicted of an offense defined by section 1764, C. O. S. 1921. Under said section, the punishment may be imprisonment in the penitentiary or imprisonment in the county jail not exceeding one year. The testimony in this case is sufficient to sustain the verdict.

The Attorney General in his brief does not recommend a modification of the sentence and judgment, but suggests that this court has the power to modify the same, and that, if the court should deem it advisable to modify the judgment, it not be reduced below imprisonment in the county jail for a term of 90 days.

After a careful consideration of all the testimony in the case and the judgment and sentence of the court, we believe that the ends of justice would be properly met by a (piodification of the sentence imposed in this case from two years in.the penitentiary to four months in the county jail of Comanche county, Okla. and, as modified, the judgment is affirmed.

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


text:
    VESTER HARDCASTLE v. STATE.
    No. A-6683.
    Opinion Filed April 20, 1929.
    (276 Pac. 1117.)
    W. W. Pryor, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, upon a charge of assault with intent to do bodily harm, was convicted in the district court of Hughes county of assault and battery, and his punishment fixed at a fine of $1.

The record discloses that at the time charged defendant had a difficulty with one Lon Riddle, in the course of which he struck Riddle several times with a stick, inflicting a, severe wound on the head. The jury returned its verdict, finding defendant guilty of the included offense of assault and battery, and the punishment was assessed by the court. Defendant claimed self-defense, and the evidence was sharply conflicting. The judgment was entered January, 1927, and the appeal was lodged in this court in July, 1927. No briefs in support of the appeal have been filed, and no jurisdictional or fundamental error is apparent.

The case is affirmed.


text:
    GLENN THAYER v. STATE.
    No. A-6650.
    Opinion Filed April 20, 1929.
    (276 Pac. 1118.)
    James H. Mathers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the Slate.
   PER CURIAM.

The plaintiff in ■ error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of burglary in the second degree, and his punishment fixed at three years in the state penitentiary.

The record discloses that at the time charged defendant and one McAlpine burglarized a store building belonging to B. W. Taylor in the town of Choctaw. The evidence amply sustains the verdict and judgment. The judgment was entered in December, 1926, and the appeal was lodged in this court in June, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. No jurisdictional or fundamental error is apparent.

The case is affirmed.


text:
    RILEY PRESTON v. STATE.
    No. A-6100.
    Opinion Filed April 20, 1929.
    (276 Pac. 784.)

      For former opinion, see 40 Okla. Cr. 403, 269 P. 507.
    Whiteside & Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Jackson county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 and to serve 50 days in the county jail.

The record discloses that at the time charged certain officers with a search warrant made a search of the residence of defendant. The affidavit for search warrant was filed with a justice of the peace praying for the search of the building and outhouses located at 700 North Hightower street in the city of Altus, and setting out that defendant kept and had intoxicating liquors in said premises with the intent to sell same, and that the affiant, one Ray Tinney, on said day had bought a pint of corn whisky from defendant. A search warrant was thereupon issued authorizing the search of a building at 700’ North Hightower street.

The sufficiency of the affidavit to authorize the issuance of a search warrant is challenged. Without setting out the affidavit or further stating its contents, we find the allegations of the affidavit sufficient. The only assignment which has any merit is that the premises searched and upon which defendant resided was not the premises described in the affidavit- and the search warrant. It is undisputed that defendant resided at 702 North Hightower street, and that these premises were searched while the affidavit and warrant are directed to 700 North Hightower street.

Section 7012, Comp. Stat. 1921, provides: “No [search] warrant shall issue but upon probable cause supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

The general rule is that search warrants are to be strictly construed, and the authority to search is limited to the place described therein.

Chapter 6 of Cornelius on Search and Seizure discusses at length the sufficiency of the description in affidavits and in warrants of premises to be searched to comply with the constitutional and statutory requirements for a particular description- Numerous illustrations are cited in support of the general rule that the affidavit and the warrant shall particularly describe the place to be searched. In State v. Malarky, 57 Mont. 132, 187 P. 635, it is held that where premises are described as being at No. 601 of a certain street, that such description did not authorize a search at No. 603 on that street, although the premises were owned by the same individual. In United States v. Rykowski (D. C.) 267 F. 866, it was held that premises described as belonging to William Kozman, 123 Garfield street, insufficiently described premises at 123 North Garfield street. . In U. S. v. Chin On (D. C.) 297 F. 531, it was said that a warrant authorizing the search of a building at 24 Liberty street did not authorize the search of a building at No. 23 Liberty street. In People v. Musk, 221 Mich. 578, 192 N. W. 485, it was held that a warrant to search premises at 926. Elwood avenue is no authority to search premises at 932 Elwood avenue.

In Miller et al. v. State, 34 Okla. Cr. 103, 245 P. 68, it was said:

“It is evident that it was the intention of framers of the Constitution and the lawmakers to limit the right of search to places and premises where a proper affidavit showing probable cause was filed, particularly describing the premises to be searched..”

There are other decisions from this state applying the statute that there must be a particular description of the place to be searched. Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; Emmons v. State, 33 Okla. Cr. 40, 241 P. 1107; Myer v. State, 34 Okla. Cr. 421, 246 P. 1105; Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106.

The search warrant authorizing a search of a building at 700 North Hightower street was not authority for the search of a building at 702 North High-tower street; such search was unauthorized, and evidence obtained thereby, upon timely objection, should have been excluded.

The case is reversed and remanded.

DAVENPOKT and CHAPPELL, JJ., concur.


text:
    FRED B. VAUGHN et al. v. STATE.
    No. A-6767.
    Opinion Filed April 20, 1929.
    (276 Pac. 701.)
    Frank P. Smith, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted in the district court of Creek county on a charge of manslaughter in the second degree, and their punishment fixed at two years each in the penitentiary. Motion for new trial was filed, overruled, exceptions saved, and the defendants have appealed to this court.

Omitting the caption, signatures, and affidavit of the information filed against the defendants, the information is as follows:

“In the name and by the authority of the state of Oklahoma, now comes W. F. Pardoe, the duly qualified and acting county attorney, in and for Creek county, state of Oklahoma, and upon his oath of office gives the district court of Creek county, state of Oklahoma, to know and to be informed that Fred B. Vlaughn and Bill McFarland did, in Creek eounty, and state of Oklahoma, on or about the 7th day of October, in the year of our Lord one thousand nine hundred and twenty-six, and anterior to the presentment hereof, commit the crime of manslaughter in the second degree, in the manner and form as follows, to wit: That said defendants, then and there being and acting together, did then and there willfully, unlawfully, and feloniously drive a certain Ford touring car automobile against, onto and over the ¡body of one Irene Romine; said driving of said automobile upon the part of said defendants being then and there done with utter disregard for the safety of the said Irene Romine and wholly indifferent to the health, safety and life of her, the said Irene Romine, thereby inflicting upon the said body of her, the said Irene Romine, certain mortal wounds, from which said wounds the said Irene Romine did then and there, languishing, die; that the said driving of said automobile into, upon and over the said Irene Romine, being an act of culpable negligence on the part of them, the said defendants, in such manner the said defendants did slay and kill her, the said Irene Romine — contrary to the form of statutes in such cases made and provided, and against the peace and dignity of the state.”

When the case was called for trial, the defendants filed a motion to strike the information on the ground of its failure to charge any facts constituting the offense sought to be charged, or any other offense against the laws of the state of Oklahoma; and, second, they filed a demurrer to the information on the ground that it wholly failed to state facts sufficient to constitute a cause of action on behalf of the state against the defendants, or either of them. The motion to strike the information and demurrer to the information was overruled, and defendants duly excepted. The trial proceeded and resulted in the conviction of the defendants.

It is urged by the defendants that their motion to strike and their demurrer to the information on the ground of it failing to state an offense under the statute should have been sustained, and the state required to file an information sufficiently defining the offense sought to be charged against them. Section 1745, C. O. S. 1921, defines manslaughter in the second degree as follows:

“Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

The question urged by the defendants, as set forth in their motion to strike and their demurrer to the information, is: Does the information in this case charge an offense against the defendants of manslaughter in the second degree?

This court in Saucerman v. State, 31 Okla. Cr. 272, 238 P. 228, in the first paragraph of the syllabus, said:

“An information must allege the facts constituting the offense; it is not sufficient to allege a mere conclusion.”

Defendants insist that the information does not state facts sufficient to properly charge an offense of manslaughter in the second degree, in that it fails to allege any specific acts on the part of the defendants, or either of them, showing culpable negligence. This court in Clark v. State, 27 Okla. Cr. 11, 224 P. 738, defines culpable negligence:

“Is the omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case.”

Defendants urge that there is no statement in the information to show wherein they were culpably negligent, or where they failed to do something which they should have done under the circumstances surrounding the parties at the time of the accident.

In Isaah v. State, 24 Okla. Cr. 174, 216 P. 950, this court, in the first paragraph of the syllabus, said:

“The information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute, when the particular circumstances of the offense charged are necessary to constitute a complete offense.”

The court, in the opinion said: “While, as a general rule, it is sufficient to charge a statutory offense in the language of the statute, there are exceptions to the rule. Bishop says: ‘The criminal nature and degree of the offense must “appear in the allegation,” also the particular facts and circumstances which render the defendant guilty of that offense,’ ” — citing a line of authorities.

In Cole v. State, 15 Okla. Cr. 361, 177 P. 129, this court, in the second paragraph of the syllabus, said:

“An information for a violation of section 2204, Rev. Laws 1910, which charges that the defendant did willfully, unlawfully, feloniously, and knowingly feed, lodge, equip, harbor, assist, and conceal named fugitives from justice guilty of a felony, describing said felony, but which fails to aver the acts done by the defendant in equipping, aiding, and concealing said guilty parties, does not meet the requirements of the Code of Criminal Procedure of this state, as such information does not so specifically inform the defendant of the acts constituting the offense charged, and a demurrer thereto should have been sustained.”

In People v. Townsend, 214 Mich. 267, 183 N. W. 177, 16 A. L. R. 902, the court, in discussing the sufficiency of the information, said:

“In case of manslaughter committed through gross or culpable negligence while doing a lawful act the duty which was neglected or improperly performed must be charged as well as the acts of the accused constituting failure to perform or improper performance.”

In State v. Gesas, 49 Utah, 181, 162 P. 366, in the second paragraph of the syllabus, the court said:

“An information charging accused with having operated a motor vehicle upon a public street at a greater speed than was safe, having due regard for the width, character, and common use of the street, and operating the vehicle so as to endanger life, limb, and property, and without having it under immediate control, and driving it past and in close proximity to a street car while the same was standing still for the purpose of letting off passengers, and, while operating the vehicle in such unlawful manner and without due caution and circumspection, striking the deceased, is insufficient to charge involuntary manslaughter under Comp. Laws 1907, § 4163, defining the offense, since it charges no specific ultimate fact.”

The demurrer was well taken, and the court should have sustained the same. As the errors pointed out necessitate reversal of the judgment rendered, we deem it unnecessary to consider other errors assigned.

The judgment rendered in this case is reversed and remanded, with directions to sustain the demurrer to the information, and to permit an amended information to be filed.

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


text:
    CITY OF WALTERS v. J. D. EWING.
    No. A-6538.
    Opinion Filed April 20, 1929.
    (276 Pac. 700.)
    J. C. Norman, City Atty., for plaintiff in error.
    Wm. T. Powell, J. W. Brooks, and Amil H. Japp, for defendant in error.
   EDWARDS, P. J.

The city attorney filed with the police judge a complaint against J. D. Ewing charging the violation of a city ordinance. He was convicted in the police court and sentenced to pay a fine of $5 and costs. From this conviction he appealed to the county court, and a motion was there filed to dismiss the proceeding, challenging the validity of the ordinance under which the conviction was had, and a stipulation of facts was entered into a.nd evidence taken, and the court then made findings of facts and conclusions of law, and in effect rendered judgment that the business of defendant did not come within the ordinance, and sustained the motion to dismiss the prosecution. From this judgment the city has prosecuted this appeal.

The defendant has filed a motion to dismiss the appeal here for the reason that a municipality in such case does not have the right of appeal. It is well settled that the right of the state to appeal on questions reserved by the representatives of the state in a trial court is based on section 2807, Comp. Stat. 1921, but this statute does not confer the same fight on municipalities either directly or by implication, and where a municipality attempts to appeal, the appeal will upon proper motion be dismissed. Oklahoma City v. Tucker, 11 Okla. Cr. 266, 145 P. 757, Ann. Cas. 1917D, 984; Incorporated Town of Idabel v. Dooley, 23 Okla. Cr. 278, 214 P. 735; City of Ada v. Rupprecht, 29 Okla. Cr. 227, 233 P. 238.

The attempted appeal is dismissed.

DAVENPORT and CHAPPELL, JL, concur.


author: CHAPPELL, J.

text:
    BILL RHODES v. STATE.
    No. A-6390.
    Opinion Filed April 20, 1929.
    (276 Pac. 698.)

      Japp, Woodliff & Garrison and Madden & Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county of having possession of intoxicating liquors with intent to sell, barter, give away, or otherwise dispose of the same, and sentenced to serve 90 days in the county jail and pay a fine of $100-. The defendant was charged jointly with one W. A. Terrell. Terrell was found not guilty and the defendant Bill Rhodes was found guilty.

The defendant urges this court that this case be disposed of upon the defendant’s third, fourth, and fifth assignments of error, which are as follows:

“(3) Error of the court in overruling plaintiff in error’s objection to the special jury panel summoned by the sheriff.
“(4) Error of the court in overruling plaintiff in error’s motion to quash the special jury panel.
“(5) Error of the court in overruling plaintiff in error’s motion to restore to him additional challenges which were exercised in eliminating from the jury the special jurors so summoned by the sheriff.”

Section 2659, C. O. S. 1921, provides as follows:

“A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.”

Section 2665, C. O. S. 1921, provides as follows:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge maybe taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

Section 3526, C. O. S. 1921, provides as follows:

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

Section 2660, C. O. S. 1921, provides:

“A challenge to the panel must be taken before a .jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.”

This section of the statute provides the time and manner at which a challenge to the panel must be taken. Careful examination of the case-made does not show that any challenge in writing specifying the grounds of challenge was taken as required by this section. The case-made does reveal that the defendant saved his objections to the selection of a special panel by a bill of exceptions and sets out the objections and exceptions of defendant as follows:

“The defendants W. A. Terrell and Bill Rhodes objected to the action of the court in summoning said additional jurors for the reason that no necessity existed for summoning said jurors; said defendants requested and moved the court to direct the clerk and the sheriff to draw the names of additional jurors from.the jury box and summons them as provided by law; said defendants objected to the order of the court directing the sheriff, C. O. Hooper, to summons additional jurors, for the reason that said sheriff, C. O. Hooper, was a material witness against the defendants and biased and prejudiced against them; said defendants objected to the order of the court directing that said special jurors be made a part of the regular panel; said defendants requested the court to exhaust the regular panel .before using the special jurors; the defendants moved to quash special jurors, to wit, R. L. Harris and R. L. Fowler, when they were called upon the jury; the defendants moved the court to restore them the additional challenges which were exercised in eliminating from the jury the special jurors so summoned by the sheriff as aforesaid.”

The motions contained in these exceptions were not reduced to writing and filed with the court as required by section 2660, C. 0¡. S. 1921, and did not therefore properly present the question of the irregularity of impaneling the jury to the trial court for his action thereon.

In the case of Maddox v. State, 12 Okla. Cr. 462, 158 P. 883, this court held in paragraphs 3 and 4 of the syllabus:

“A substantial compliance with the forms provided for by law for drawing and serving jurors is sufficient.”
“A challenge to the panel of jurors can be founded only on va material departure from the forms of law providing for drawing and summoning jurors, or the intentional omission of the sheriff to summon one or more of the jurors drawn; and to entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice.”

In the case of Michael et al. v. State, 42 Okla. Cr. 124, 274 P. 900, this court said in the syllabus:

“The statutes of this state providing for the impaneling of jurors in criminal cases is not in all particulars mandatory. A substantial compliance will be sufficient, where the deviation is not material and has not prevented an accused from having a fair and impartial jury, selected by lot from the entire panel.”

In the case of Carter v. State, 41 Okla. Cr. 253, 273 P. 376, in the body of the opinion this court said:

“An examination of the case-made shows that on October 5, 1925, what purports to be a demurrer to the information was filed in the clerk’s office, which demurrer was unsigned, and is as follows: ‘Comes now the defendant C. L. Carter and demurs to the information filed herein, on the ground and for the reason that said' information wholly fails to allege a commission of an offense against the laws of the State of Oklahoma.’
“The record further shows that on October 5, 1925, in Criminal No. 1535, Charles Carter, Alias Jim McClure, same being one of the regular days of the September term of the district court, the defendant was called for arraignment; defendant present in person and by counsel. County Attorney present for State. Defendant, now duly arraigned, waives time, waives reading of information; enters plea of not guilty; Copy of information served on defendant in open court. Bond fixed in the sum of $2,500-. Section 2609, Comp. St. 1921, provides: ‘The demurrer must be in writing, signed by either defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the indictment or information, or it must be disregarded.’
“As disclosed by the record, what is claimed to be a demurrer was not signed by either the defendant or his counsel, and does not comply with the requirements of the statute.”

Section 2660, C. O. S. 1921, with respect to challenge of the jury panel, is very similar to section 2609, C. O. S. 1921, with respect to demurrer, and the same line of reasoning that would require the demurrer to be in writing and signed by the defendant would require also that the challenge to the panel or to the additional jurors summoned by the sheriff from the body of the county should be in writing and filed with the court before the jury was sworn. As disclosed by the record in the case at bar, what is claimed to bé a challenge to the panel or a challenge to the extra jurors does -not comply with the requirements of section 2660 and was insufficient to raise the question before the trial court and presents no question for review by this court.

In the case of Grisson v. State, 16 Okla. Cr., at page 571, 185 P. 452, it appeared that the defendant filed a motion in writing duly verified, challenging the special jurors summoned by the sheriff because the sheriff was a material witness for the state and prejudiced and biased against the defendant.

In the case of Koontz v. State, 10 Okla. Cr. 557, 139 P. 844 (Ann. Cas. 1916A, 689), in the body of the opinion the court says:

“Error is also assigned on the action of the court in overruling the objection of plaintiff in error to allowing R. L. Trammell, sheriff, to summon talesmen to serve on the jury; said objection being made by affidavit, on the ground that said sheriff was biased and prejudiced against said plaintiff in error, and on a challenge to the panel.”

It thus appears that in most of the cases decided by this court touching the challenge to the panel the proceeding was by verified motion.

In the case of Maddox v. State, 12 Okla. Cr. 472, 158 P. 887, in the body of the opinion this court said:

“A challenge to the panel can only be founded upon a material departure from the directions of the law in respect to the drawing and returning of the jury, or the intentional misconduct of the sheriff in the matter of summoning the same, and it must be shown in the challenge that the defendant has suffered some material prejudice thereby.”

The right given the defendant under sections 2659, 2665, C. O. S. 1921, is one which may be waived by the defendant and it will be held that he has waived such right where he fails to raise the question in the time and in the manner required by such section.

Since section 2666 requires the challenge to be taken before the jury is sworn and to be in writing, specifying plainly and distinctly the facts constituting the ground of challenge, and, it appearing from the record in the case that no such challenge was filed with the trial court, the defendant’s third, fourth, and fifth grounds of error raise no question to be passed on jby this court.

The evidence in the case shows the defendant to be guilty beyond a reasonable doubt, and, it not appearing affirmatively from the record that the rights of the defendant were prejudiced by the manner of securing the jury, the cause is therefore affirmed.

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


text:
    MRS. TROY STAPP v. STATE.
    No. A-6547.
    Opinion Filed April 20, 1929.
    (276 Pac. 697.)
    Campbell & Ray, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. ¡Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Washington county of the offense of receiving stolen property, and her punishment fixed by the jury at imprisonment in the county jail for six months and to pay a fine of $250 and costs.

Defendant duly excepted to the giving of instruction No. 5, and in her motion for new trial set out the giving of this instruction as ground for new trial, which motion was overruled and exceptions taken and allowed by the judge.

Defendant in her petition in error, in this court, as the fourth ground thereof alleges:

“That said court erred in giving instruction No. 5, to the giving of which instruction the plaintiff in error excepted.”

The instruction complained of is as follows:

“You are instructed that if you find and believe from the evidence beyond a reasonable doubt that the personal property mentioned in the information was stolen by one John Doe, a party unknown to the county attorney, with the intent on the part of the thief to convert the same to his own use, and to deprive the owner, the Conway State Bank of Conway, Kansas, thereof, and if you further find from the evidence beyond a reasonable doubt that the defendant, in Washington county, Oklahoma, on or about the 30th day of October, 1925, or at any time after said property was stolen, if you find it was stolen, and within three years prior to September 6, 1926, the date of filing the information in this case, did unlawfully and fraudulently receive said property, or any part thereof, into her possession, and that at the time she did so she knew it to bo stolen property, or that she knew such facts as made her believe that in all probability it was stolen, and that she received it with the intent on her part to deprive the owner thereof, or to benefit herself, or to help the thief, then and in that event you should find the defendant guilty and assess her punishment at imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding $250.00 or by both such fine and imprisonment.
“Should you fail to so find, or should you entertain a reasonable doubt thereof, then you should acquit the defendant.”

The learned trial judge evidently had in mind the case of Webb v. State, 19 Okla. Cr. 450, 200 P. 719, in which case an instruction almost identical with instruction No. 5, supra, had been approved, and his attention was not called to the case of Weaver v. State, 30 Okla. Cr. 309, 235 P. 635, which had expressly held such instruction erroneous.

The opinion in the case of Weaver v. State, supra, written by Judge Edwards, contains a very full discussion of the quantum of proof required to authorize a jury to convict in a case of receiving stolen property. On page 636 of 235 P. (30 Okla. Cr. 313), this court said:

“In instructing upon the elements constituting the offense and the quantum of proof sufficient to establish them, it is erroneous for the trial court to inform the jury that anything less than proof of guilty knowledge will be sufficient.”

The part of the instruction complained of in Weaver v. State, supra, is as follows:

“ ‘* * * If after such consideration you find beyond a reasonable doubt that she knew the property in question was stolen at the time she received the same, or that she knew such facts as made her believe that in all probability it was stolen, and she received it under those circumstances, that is sufficient as to her knowledge of it being stolen.
“ ‘If you find these facts beyond a reasonable doubt, and also find the other facts necessary to constitute the crime charged, then it will be your duty to convict the defendant.’
“The words ‘or that she knew such facts as wouia lead her to believe it was stolen’ in the first paragraph, and the words ‘in all probability * * * that is sufficient as to her knowledge of it being stolen,’ just preceding the last paragraph, are erroneous. Pickering v. U. S., 2 Okla. Cr. 197, 101 P. 123; State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. (N. S.) 833. See, also, Davis v. State, 18 Okla. Cr. 112, 193 P. 745; McGill v. State, 6 Okla. Cr. 512, 120 P. 297; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.
“Under the foregoing- instruction the jury is permitted to return a verdict against the accused on less proof than is warranted by the law. Analyzing the foregoing instruction, the jury are told, in substance, that if the defendant knew such facts as would lead her to believe that it was stolen, or if she knew such facts as made her believe that in all probability it was stolen, that is sufficient as to her knowledge of its being stolen. This is not the quantum of proof the law requires to establish guilty knowledge. It is essential that guilty knowledge be proven, either by direct evidence or by proof of facts and circumstances connected with the transaction.”

The instruction complained of in the case at bar contains the following language: “Or that she knew such facts as made her believe that in all probability it was stolen.”

This language being practically identical with the language of the instruction in the case of Weaver v. State, supra, which this court held to be reversible error, it follows that this case must be reversed.

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


text:
    JIM CROWELL v. STATE.
    No. A-6429.
    Opinion Filed April 20, 1929.
    (276 Pac. 518.)

      Grant Gillespie and Eaton, Burroughs & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county on a charge of manslaughter, and his punishment fixed by the jury at 12 years in the penitentiary.

The state contended that the defendant was guilty of murder, and offered evidence in support of such theory tending to show: That the defendant and Willie Bruner, deceased, had been neighbors for a number of years and were friends. That the defendant, who lived ón a farm near the deceased, was running a public dance on his place, and that dances were held in the barn every Saturday night and during the Christmas holiday week previous to the killing in this case. That the deceased attended these dances, and that there was no difficulty between the deceased and the defendant until the night of the killing. That on the night deceased was killed and after the dance was over, the deceased with some friends went to the dwelling of the defendant, whose wife was selling hamburgers to the guests at the dance. That any one who had the price could attend these dances and obtain lunch. The defendant operated the dance and sale of the hamburgers for profit. That a controversy arose between the defendant and one Ote Green, and that the defendant ordered Ote Green to leave the house, which he did. That in a few minutes after Green left, the deceased left, accompanied by Frank Bell and Bessie Schoonover, and went down a lane leading from the home of defendant to the highway. That while the deceased, Frank Bell, and the Schoonover woman were in this little lane, the defendant came out of his house and followed them down the lane and had a controversy with the deceased. That defendant left, saying, “I will kill the son of a bitch,” and went back to his house. That deceased left and said. “Let’s go,” and went on down the lane to the highway accompanied by Bell and the Schoon-over woman. That after they reached the highway and were off the premises of the defendant, they looked back and saw the defendant coming with a rifle in his hand. That immediately the deceased ran up the road some distance and lay down in the snow, while Bell turned and walked toward the defendant. That when the defendant was within 25 or 3:0. steps of the deceased, who was lying on the ground, he took deliberate aim and fired one shot, which penetrated the heád of the deceased above the left eye and at the edge of the hair, producing a wound from which the deceased died in about two hours. That defendant then walked up to the deceased and remarked, “I killed him dead as Hell.” That defendant then went to his house, got what money his wife had, and immediately left, telling her he was going. That the defendant returned to his home the next morning and was placed under arrest ¡by the sheriff’s force.

The state introduced sufficient evidence, if believed' by the jury, to establish this state of facts, and the jury would have been justified, under this evidence, in finding the defendant guilty of murder in the first degree.

The defendant pleaded self-defense, and according to his own story there was a difficulty between him and the deceased in his home caused by the misconduct of the deceased, Frank Bell, and Bessie Schoonover, who were together in his home. That defendant finally requested them to leave his home, and they went down into the lane leading from the house into the road, where the deceased was gobbling and threatening defendant and making unnecessary disturbances. That deceased and his friends were threatening to come back to the house and kill him, and he was afraid they would come back to the house and kill him or some of his family. That defendant took his 30-30 caliber Winchester and went down the lane toward the road intending to try and persuade deceased and his friends to go on home. That they were out on the highway at the time he reached them. That he carried his rifle in such a way that the deceased did not know he was armed, and before reaching the deceased he laid his rifle down in the snow and went up to the deceased. That deceased struck him on the head with a pistol and snapped the pistol in his face, and that, being in great danger of being killed, he picked up his rifle and shot the deceased. That he only shot because he believed it was necessary to do so in order to save his own life.

The defendant had a right to request the deceased and his friends to leave his house, and had a right to use the necessary force to cause them, to leave his house. The defendant had the right, if the deceased had returned to his house and the defendant believed that he or any member of his family was in danger at the hands of the deceased, to defend his house and his family against any aggressive act of the deceased. But in this case, according to the defendant’s own story, the deceased had left the house and gone out on the public highway. The defendant taking his rifle followed the deceased out on the public highway, where he says he laid the gun down in the snow and walked up to the deceased, and that the deceased thereupon struck him on the head with a pistol and snapped the pistol and tried to shoot him, and that immediately thereafter the defendant picked up the rifle and shot the deceased.

Under no theory of law could this state of facts authorize the killing of the deceased, nor do the circumstances detailed by defendant make the killing of the deceased done in self-defense.

Leaving out of consideration all the evidence offered by the state and all the evidence offered by the defendant except his own testimony, and taking only the story of the defendant in the case, the defendant was guilty of manslaughter.

The defendant assigns numerous grounds of error, but argues only three.

First. “For error of the court in making prejudicial remarks and statements in the presence of the jury during the trial of said cause, to which said prejudicial remarks and statements of the court the defendant duly objected and excepted.”

During the progress of the trial counsel for the defendant asked many improper and incompetent questions, and when the court would sustain the objection of the county attorney, counsel for the defendant would make some remarks to the court which would occasionally bring forth a reply from the trial judge.

In the case of Jones v. State, 20 Okla. Cr. 154, 201 P. 664, this court said:

“The trial court should refrain from making disparaging personal remarks concerning any of the attorneys engaged in the trial. The attorneys, on the other hand, should refrain from unnecessarily irritating the court. A trial in a court of justice should not be permitted to degenerate into a contest of wits or Skill between the court and attorneys, or between the attorneys themselves. Held, in this case, that the attorneys for defendant were in some measure responsible for the disparaging remarks of the court, and that the remarks so made, under all the circumstances, were not prejudicial.”

In the case at bar the remarks of the trial judge were provoked by the counsel for defendant and are not of such a nature as would warrant a reversal under the circumstances revealed in this case.

In the case of Miller v. Territory, 15 Okla. 423, 85 P. 239, the Supreme Court of Oklahoma Territory, in paragraph 5 of the syllabus, says:

“It is not every improper remark of a trial court that will justify a reversal of a criminal case. If the remarks are such that might reasonably influence the jury against a defendant, a new trial should be granted; but if, after a full consideration of the entire record, it is clear that the verdict is right, and that, even if the remarks had not been made, the jury could not reasonably have returned a different verdict, the judgment will be affirmed.”

In the body of the opinion that court said:

“It is the duty of trial courts to guard well their expressions, and to act with dignity and discretion, to the end that the jurors may not be influenced by anything except the evidence, and they should be left to make their own deductions therefrom. Attorneys also owe an equally high duty to the court. They should not be permitted to enjoy the benefits derived from questionable conduct unnoticed; for, if such were the case, then the services of the lawyer who acts from a high sense of duty would be unsought, and the lawyer who adopts uik professional means would be able to render his client the more valuable service. A defendant is entitled to a fair and impartial trial; but this does not mean that the prosecution alone shall be fair, and the defendant left to take advantage of every cunning within his power; and where he or those who represent him, with his knowledge, do wrongful acts, while engaged in his defense, which reflect discredit upon him or his witnesses, it is only just that he should suffer the consequent inferences flowing therefrom, should those facts become known to the jury.”

The defendant next complains:

“For misconduct of the county attorney in his closing argument to the jury, objected and excepted to at the time by the defendant, which said argument or statement of the county attorney is fully set out by the affidavits of two certain bystanders, attached hereto and marked ‘Exhibits A and B,’ and made a part of this record, and certified to by the trial judge as a part of the record.”

In the case of Davis v. State, 7 Okla. Cr. 322, 123 P. 560, this court said:

“A conviction will not be reversed for alleged misconduct of the prosecuting attorney, unless this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might, in some degree, have influenced the verdict against the defendant.”

This was a hotly contested trial. Able counsel represented both the state and the defendant. Considerable ill feeling had been engendered by the crime charged against the defendant, and this feeling was manifest throughout the trial by both the prosecution and the defense. The trial court promptly sustained objections of both the state and the defense to improper testimony, and promptly reprimanded the county attorney for remarks made by the county attorney during the argument of the case and instructed the jury not to consider the improper remarks of the county attorney. It would be impossible for the trial court to keep all error out of the record. But we are satisfied from a reading of the record that the trial judge tried to be fair and tried to conduct the trial in such a manner that the rights of the defendant would not be prejudiced. Under the state’s theory of the case and the evidence offered in support 'of that theory, the jury could have inflicted the death penalty. Taking, the defendant’s own story as told upon the witness stand and placing the best possible interpretation upon it, the least the jury could have done was find the defendant guilty of manslaughter, which they did in this case. It is evident from the verdict of the jury that, if any prejudice was created in the trial of the case, it was in favor of the defendant and not against him. Considering the punishment fixed by the jury, the defendant is in no position to complain of the conduct of the trial.

The defendant assigns numerous other errors which are not argued in his brief and are without merit.

For the reasons stated, the cause is affirmed.

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


text:
    CATHERINE WILLIAMS v. STATE.
    No. A-6378.
    Opinion Filed April 20, 1929.
    (276 Pac. 515.)

      Mathers & Mathers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of robbery with firearms, and was sentenced to serve a term of five years in the state penitentiary.

Defendant and J. E. Barnett were jointly charged. A severance was granted, and Barnett was first tried and convicted. The theory of the state in this case is that defendant conspired with Barnett to commit the offense, and that the robbery charged was one of a series of robberies committed by her and Barnett.

The parties had been living together, although defendant admitted she was not married to Barnett. Mrs. Bessie Haskell, a friend of defendant, was the person robbed, which robbery occurred about 4 o’clock in the afternoon. Defendant persuaded Mrs. Haskell to go on an automobile ride with her, and she then took Mrs. Haskell to Northeast Lake near Oklahoma City, and then went west along Grand boulevard. Mrs. Haskell knew Barnett, and identified him as the person who committed the act of robbery. Thus far there appears to be no serious dispute as to the facts.

Two days prior to the crime charged in this case, it appears defendant induced one Ed Klose to go automobile riding with her. She went with Klose on this ride to Northeast Lake and on Grand boulevard, where they were held up and robbed by Barnett with another man named Harris. Defendant, a witness in her own behalf, was asked on cross-examination if she was acquainted with Klose. She denied knowing him and having been with him on the date he was robbed. The defense interposed was that of alibi.

In rebuttal, the state offered a transcript of the testimony of Klose, who testified as a witness for the state at the preliminary trial before a, justice of the peace, in the case in which this defendant, J. E. Barnett, and Harris were charged with the robbery of Klose, which, as stated, took place two days before the robbery charged in this case. The predicate laid for the admission of this transcript was a showing that Klose was out of the state and his attendance could not be had. The testimony of Klose in that case was relevant and material in this case, as showing a plan or scheme of this defendant and Barnett to commit a series of robberies whereby this defendant would lure the victim of the proposed robbery to some place outside Oklahoma City, where they would be intercepted by Barnett alone or with some other person, who would then rob them; This testimony in the main was as to the identity of this defendant as being the person with Klose at the time he was robbed. There is no question but that the transcript of the testimony would have been admissible if it had been given in the preliminary trial in the instant case. Its admissibility under such circumstances is well settled. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Montgomery v. State, 13 Okla. Cr. 652, 166 P. 446; Pierce et al. v. State, 35 Okla. Cr. 67, 248 P. 654; 16 C. J. 839, and authorities cited.

The question here, however, is, Has the constitutional right of confrontation been met? There appear to be a few authorities upon the precise point here presented. Section 20, art. 2, of the State Constitution, in part provides:

“In all criminal prosecutions the accused * * * shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. * * *”

Our statute, section 2349, Comp. St. 1921, among other things, provides that:

“In a criminal action the defendant is entitled: , * * * Third. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the ■presence of the court.”

Wigmore on Ev. vol. II, § 1395, in part says:

“In the period when the hearsay rule is being established and ex parte depositions are still used against an accused person, (ante 1364) we find him frequently protesting that the witnesses should be ‘brought face to face’ or that he should be ‘confronted’ with the witnesses against him. The final establishment of the hearsay rule, in the early 1700s, meant that this protest was sanctioned as a just one — in other words, that confrontation was required. What was, in principle, the meaning and purpose of this confrontation? So far as there is a rule of confrontation what is the process that satisfies this rule?
“It is generally agreed that the process of confrontation has two purposes, a main and essential one, and a secondary and subordinate one. (1) The main and essential purpose of confrontation is to secure the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining of immediate answers. That this is the true and essential significance of confrontation is demonstrated by the language of counsel and judges from the beginning of the hearsay rule to the present day; * * * Thus the main idea in the process of confrontation fs that of the opportunity of cross-examination; the former is merely the drastic feature, the preliminary measure, appurtenant to the latter.
“(2) There is, however, a secondary advantage to be obtained by the persona) appearance of the witness; the judge and the jury are enabled to obtain th§ elusive and incommunicable evidence of a witness’ deportment while testifying, and a certain subjective moral effect is produced upon the witness. * * *”

The origin of this requirement of confrontation grew out of and is a part of the hearsay rule, which is defined as the rule which prohibits the use of a person’s assertion as equivalent to testimony to the fact asserted, unless the asserter is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it. 2 Wig. on Ev. 1364. This rule began in the sixteenth century, and gained complete development in the eighteenth century. The Constitution of the United States contains the substance of this rule in Amendment 6 to the Federal Constitution, which is applicable to citizens of the United States on trial in the federal courts charged with a violation of the Constitution or laws of the United States. Most of the states of the Union have a similar provision in the State Constitution. The language of our Constitution is identical on this point with the Sixth Amendment. It will be observed, however, that this constitutional provision'in the various states and in this state does not require that the accused shall be confronted with the witnesses against him upon a pending trial on the indictment or information. So it is generally held that the requirement is satisfied if the accused has been once confronted by the witnesses against him in any stage of the proceedings upon the same accusation and has had an opportunity of cross-examination by himself or by counsel. It is under this view of the constitutional provision that the testimony of a witness given in a former trial or upon a preliminary in the same case is admitted in evidence. There are also, even under the positive language of the Constitution, some exceptions to the hearsay rule. These exceptions apparently had their origin with the rule, and run with it. Thus a dying declaration is received in evidence as an exception to the hearsay rule. It is generally admitted without question as to its competency, and is a general exception to the requirement of confrontation; to a less extent official statements and evidence of reputation are exceptions. 2 Wig. on Ev. 1398, notes. Both the constitutional and statutory requirements are complied with when a defendant has had the opportunity to cross-examine the witnesses in a preliminary trial before a justice of the peace or upon a former trial upon the same issue. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121.

We are not able to find that the testimony of a witness taken in the preliminary or in the trial of a charge for another distinct offense .at a different time and place, although against the same defendant, has been admitted in evidence except in the single case of State v. Vion Klein, 71 Or. 159, 142 P. 549, Ann. Cas. 1916C, 1054. It was there held, under conditions similar to those in the instant case, that the testimony was competent.

In the Alabama case of Davis v. State, 17 Ala. 354, the accused was indicted and convicted of the larceny of a mule. On the trial, Saunders, a justice of the peace tailed by the state, testified that accused was charged before him of stealing a buggy, and that one Connolly, who at the time of the trial was deceased, testified before him on the examination of the charge in the presence of the accused. Upon this predicate he was permitted to detail the testimony of the deceased witness, Connolly. The court reversed the case for this reason alone, saying:

“But we think it clear that what Connolly stated tending to prove the larceny of the mule was incompetent proof. In order to admit such evidence the point in issue in both actions must be the same. * * * The trial before the magistrate was on the charge of stealing a buggy — there was no charge preferred against the accused for stealing the mule, nor did the magistrate take cognizance of or examine into this charge. The issue or charge tried by the justice was not the same, but differed widely from the issue or crime for which the prisoner was indicted. What Connolly said on the examination of the charge tried by the justice therefore was wholly incompetent evidence on the trial of this cause, and for this reason the evidence of the magistrate was improperly admitted and the judgment must be reversed. * * *”

We can perceive that if in the trial of another case upon another charge, if the particular matter to which the witness testified was the same matter at issue in the casé then on trial, and the accused had an equal motive for cross-examination, such confrontation might satisfy the constitutional requirement. But here it is evident that the witness testified in the preliminary as to the defendant being the person with Klose at the time he was robbed by Barnett and Harris, and not that the defendant was the person who participated in the robbery of Mrs. HaskeH, the person charged to have been robbed in the instant case. The motive for cross-examination of the witness in that case might or might not have been as strong as in this case. The defendant with her code-fendants Barnett and Harris may have been guilty of the robbery of Klose and not guilty of the robbery of Mrs, Haskell.

In the face of the constitutional provision and the statute above quoted, it cannot be said that the defendant here has been confronted with the witness against her in this case. The admission of a transcript of Klose’s testimony taken in the other case violates a constitutional and statutory right and constitutes reversible error.

For the reasons assigned, the case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


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    CARL SCHULTZ v. STATE.
    No. A-6455.
    Opinion Filed April 20, 1929.
    (276 Pac. 508.)
    C. B. Leedy and L. E. Moyer, Jr., for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against jointly with John Doe and Richard Roe, whose real names were unknown to the county attorney, and w.as tried separately and convicted of possession of a still, and sentenced to imprisonment in the county jail of Ellis county for a term of 30 days, and to pay a fine of $250 and costs. Motion for new trial was filed, overruled, and exceptions saved, and defendant has appealed to this court.

The information properly charges an offense. The state in order to sustain the charge in the information introduced evidence showing the sheriff and some parties went to the farm known as the Guyer place, on the 3d day of August, 1926, about 2% miles from the defendant’s home, and in or near a canyon in the pasture land on the place found Shell Hayes and Dennis Teague in a small house where there was a still set up and in operation. It appears from the testimony that the defendant had cultivated the farm land for the year 1926, but there is no testimony to show he had anything to do with the pasture land. One witness called on behalf of the state said there was some stock in the pasture, and, when questioned by the county attorney as to whether he knew whose stock it was, stated he did not know. Another witness testified he was stationed near his father’s home about 7 or 8 o’clock in the morning and saw the defendant drive by his father’s home going in the direction of the Guyer farm, and that there were two other men in the car with him, but the witness did not know who they were.

The officers, while waiting near the house where the still was found, testified that some one drove a. car near the canyon where the house was, but they did not know who it was. The state made an effort to try to bring out testimony that at the time Hayes and Teague were arrested, at the house where the still was found, they stated, if you know the defendant brought us out that morning, why do you ask us? This was objected to on the ground that any statement made in the absence of the defendant could not bind him. The court overruled the objection of the defendant, and defendant duly excepted. The state introduced further testimony tending to show that during the summer Hayes and Teague had worked for a few days for the defendant, and on one occasion they had been seen on the road going toward town, each driving a team loaded with wheat. This is in substance the testimony introduced by the state. At the close of the state’s testimony, the defendant moved the court to advise the jury to return a verdict of not guilty against him on the ground that the testimony of the state was insufficient to sustain a conviction. The motion was overruled, and defendant duly excepted.

The defendant called Shell Hayes and Dennie Teague, the two parties that were arrested at the house the morning the officers found the still in operation, and each testified positively that the defendant had nothing to do with the still, did not own it, and did not know it was there; that the defendant did not bring them there that morning, but that morning a party overtook them in a car; that the party had some watermelons in the car, they were carrying a can of gasoline, and they bought some watermelons and the party delivered the watermelons out near the house where the still was found, and that defendant knew nothing about the still; the can found at the house with defendant’s name on it, Hayes and Teague claim to have found down near the gate some distance from the house and had used it to carry water in. Hayes and Teague pleaded guilty to the offense and were at the time of the trial serving a jail sentence; each admitted they had been convicted of other offenses; that they had been living in different places.

Defendant has assigned several errors alleged to have been committed. He first urges that the verdict of the jury is contrary to the evidence and the law; second, that the evidence is wholly insufficient to warrant or sustain a conviction for the offense charged; third, that the court erred in overruling plaintiff in error’s motion for a new trial; and, fourth, the court erred in admitting, over the objection of the defendant, incompetent and prejudicial evidence during the trial.

The state offered no evidence whatever to show that the defendant was in possession of the lands where the still was found. The only attempt made was to show there was some stock in the pasture land through which the canyon runs where the still was found. The witness stated he did not know whether they were defendant’s cattle or not. The defendant lived more than 2% miles from where the still was found. Defendant had cultivated the farm land for the year 1926. The can bearing the defendant’s name was found at the place where the still was found, which was accounted for by the witnesses Hayes and Teague, who explained where they found the can and how it happened to be there. This testimony is a suspicious circumstance, but we do not believe it sufficient to sustain a conviction. There should be some testimony that the defendant was the owner or had under his control that portion of the land where the still was found.

It is a well-settled rule, this court will not disturb the verdict on account of the evidence, where there is evidence to support it. The converse rule is equally well settled, that it is not only the province but the duty of the court to set aside the verdict when it is contrary to the evidence or where there is no evidence to support it. Benson v. State, 10 Okla. Cr. 16, 133 P. 271.

The evidence is entirely insufficient to support the verdict and judgment of conviction. The judgment is reversed and remanded.

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


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    BERT CHAMBERLAIN v. STATE.
    No. A-6537.
    Opinion Filed April 20, 1929.
    (276 Pac. 507.)
    Oscar C. Simpson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the. State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called' defendant, was convicted in the county court of Oklahoma county of the crime of pointing a gun, and was sentenced to pay a fine of $50 and to imprisonment in the county jail for three months.

The first error complained of by the defendant is that the information is insufficient to state a, crime against the defendant. The charging part of the information reads as follows:

“* * * That heretofore, to wit, on the 2nd day of May, A. D. 1926, in Oklahoma County, State of Oklahoma, Bert Chamberlain whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and wrongfully commit the crime of pointing a weapon at others, in manner and form as follows, to wit:
“That is to say, the said defendant, in the County and state aforesaid and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully and wrongfully point a shotgun, to wit: A twelve gauge pump shotgun at several persons assembled in a room at the home of Ray Thompson, using threats to do violence on divers persons therein. * * *”

The sufficiency of this information w.as first questioned in the trial court by objection to the introduction of evidence on the part of the state, after the jury had been duly impaneled and the first witness sworn and placed upon the stand. The statute under which this information was drawn reads as follows:

“It shall be unlawful for any person to point any pistol or any other deadly weapon, whether loaded or not, at any person or persons, either in anger or otherwise.” Comp. St. 1921, § 1999.

The contention of the defendant is that the foregoing information fails to charge an offense because it fails to najme the person or persons at whom the defendant pointed the shotgun. This information is not skillfully drawn. The information should have contained the further allegation, “in the same transaction,” after the words, “using threats to do violence on divers persons therein.”

In the case of White v. State, 4 Okla. Cr. 143, 111 P. 1010, this court said:

“All objections as to the sufficiency of an indictment should he presented by proper motions before the defendant pleads thereto. When the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn and then for the first time questions the sufficiency of the indictment by objecting to the introduction of testimony, on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the indictment can be sustained.”

In the body of the opinion the court says:

“Motions of this kind coming after the jury had been empaneled are not looked upon with favor. If the indictment was defective this matter should have been called to the attention of the trial court by proper motions before the defendant entered his plea. This is the reason why the defendant is allowed by statute one day in which to plead. If the defendant enters his plea and waits until the introduction of the evidence to object to the sufficiency of the indictment, the objection should be overruled if by any possible construction or intendment the indictment can be sustained.”

It is true that the information in the case at bar is not as full and explicit as it might be; but the allegations are sufficient to inform the defendant as to the nature of the offense charged against him. The offense is described with enough particularity to enable the court to pronounce judgment on the verdict of guilty according to the right of the case, and the record of this conviction would be a complete protection to the defendant against any subsequent prosecution for pointing a shotgun at any person assembled at the home of Ray Thompson at the time and on the occasion referred to in the information.

The defendant alleges other errors, but a careful examination of the record shows them to be without sufficient merit to justify, a reversal of the' case.

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

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


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    TIMMIE FACTOR v. STATE.
    No. A-7207.
    Opinion Filed April 20, 1929.
    (276 Pac. 506.)
    Billingsley & Stanley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

An information was filed against the defendant in the district court of Seminole county charging the defendant with assault with intent to kill, to which charge the defendant entered a plea of not guilty.

The jury was duly impaneled on the 4th day of November, 1927, in the district court of Seminole county, to try the defendant. The state introduced its evidence and rested. The defendant introduced his evidence and rested, and thereupon the defendant asked leave of court to withdraw his plea of not guilty and enter a plea of guilty. This request was granted by the court and the jury discharged. Thereupon the court fixed Friday, November 11, 1927, at 9 o’clock a. m., for sentence, and announced to the defendant that he would be sentenced to one year in the state penitentiary at that time. On the 5th day of January, 1928, the defendant filed his motion for leave of court to withdraw his plea of guilty and enter a plea of not guilty, which motion was on the 30th day of April, 1928, overruled by the court. The defendant then gave notice of appeal to the. Criminal Court of Appeals, perfected his case-made, and filed the same in the Criminal Court of Appeals on the 30th day of October, 1928.

The Attorney General has filed his motion to dismiss the appeal upon the ground that the case-made fails to show that any final judgment was rendered against the defendant. We have carefully examined the case-made and find no record in the case-made of any judgment rendered against the defendant.

In the case of Stanton v. State, 23 Okla. Cr. 193, 213 P. 914, this court in the body of the opinion said:

“The appeal in a criminal case is from the judgment against the defendant. The uniform holding of this court is that an appeal in a criminal case cannot be taken until after judgment against the defendant has been rendered, and, where the record fails to show that such judgment has been rendered, an attempted appeal will be dismissed. McLellan v. State, 2 Okla. Cr. 633, 103 P. 876; Dansby v. State, 7 Okla. Cr. 496, 124 P. 328; Dunn v. State, 18 Okla. Cr. 493, 196 P. 739; Heath v. State, 22 Okla. Cr. 122, 210 P. 560.”

Because the record fails to show that any judgment or sentence was ever rendered on the plea of guilty, the motion of the Attorney General must be sustained. The attempted appeal herein is therefore dismissed, and the cause remanded to the district court of Seminole county, with directions to enforce its judgment therein, if judgment has been rendered; if no judgment has been rendered in said cause, the district court of Seminóle county is directed to render judgment upon the plea of guilty of the defendant.

EDWARDS, P. 'J., iand DAVENPORT, J., concur.