text:
    FRANK BRISTOW v. STATE.
    No. A-9596.
    Sept. 22, 1939.
    (94 P. 2d 254.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The defendant Frank Bristow was by information charged . in the county court of Coal county, Okla., with the crime of being drunk in a public place. He was tried, convicted, and sentenced to pay a fine of $10 and cost; and has appealed.

This is a short record.

The substance of the state’s testimony is that W. B. Clark, sheriff of Coal county, stated that he saw the defendant on or about the 9th day of February, 1938, at the bank in Coalgate, Okla.; that the defendant was going down the street with Mose Primer. He was staggering.

“I went to the 66 Filling Station, and came on up by the J. C. Garage, and back to Fowler’s Barber Shop. John Holson came in, and said Mose Primer was drunk. The actions of the defendant, who was across the street from me, looked like a drunk. I would not want to swear he was down in the gutter. I did not see him drinking anything.”

John Holson, testifying for the state, stated that he knew Frank Bristow. He saw him ih February, 1938, at a restaurant in Coalgate. He said he was drunk.

On cross-examination the witness was asked: “Q. You say he was drunk at Gus Fleck’s? A. Yes, sir.”

The witness then stated:

“I had seen Frank Bristow before, but I did not know him. The defendant was not bothering me. Mose Primer was in the restaurant. Mose Primer was with another man. I only told the sheriff Mose Primer was drunk. The defendant and Mose Primer were both pretty drunk. They had not bothered me. The reason I told the sheriff that, another fellow by the name of Williams told me to tell the sheriff they were drunk. Williams wanted me to tell the sheriff they were drunk, to get them in jail. When they got them in jail, the fellow named Williams was there. Williams trades around in Indian lands. I knew Williams in Atoka. I helped him trade among the Indians.”

O. C. McMillan testified that he was undersheriff on February 9, 1938; and that he saw the defendant, and arrested him. He said that the defendant was drunk.

On cross-examination the witness stated that he was staggering. He smelled liquor on his breath. The sheriff got a report that Mose Primer was down there drunk, and told the deputies to go and get him and put him in jail.

“Max and I went and got Mose; and later went back and got Frank. Max Sandman was with me when I arrested Frank. The sheriff told me that the defendant was down at the restaurant drunk. When I went into the restaurant, the defendant was starting to drink a bottle of 3.2 beer. When I took him to jail, he walked. He did not want to go to jail; and he said he was not drunk. I think we got Mose Primer here somewhere around the courthouse; he had gone out of the restaurant. I didn’t know it was a frame-up to keep the defendant Frank Bristow from making a trade with an Indian.”

W. P. Powers, tesifying, stated:

“I am an undertaker in Coalgate. I saw the defendant F. E. Bristow that day when he was arrested, and just prior to his arrest. I met him between Estes’ and the post office. There was an Indian talking to Bristow. I saw Mose Primer. When I talked to the defendant, just prior to his arrest, he seemed to be as usual. I took him to be sober.”

On cross-examination he said:

“I stopped and talked to Bristow just a few minutes. He was on the edge of the sidewalk; and I just stopped and talked to him a few minutes. There was only one man there with him at the time.”

E. Moore, testifying for the defendant, stated:

“I am an attorney at law, and have lived in Coalgate 27 years. I saw Frank Bristow the day he was arrested. I saw him over on the sidewalk, just about where Red’s— File Brothers’ were. I don’t know just when he was arrested, but I heard he was put in about thirty or forty minutes after I met him. I would not say he was drunk. He might have had a drink. He was not drunk.”

On cross-examination the witness stated he had a conversation with the defendant, and that he thought he shook hands with him. Mose Primer was pretty full. “My judgment is that the defendant had taken a drink.”

On redirect examination the witness stated: “I am sure Frank Bristow was not drunk.”

Alva Wheeler, testifying for the defendant, stated:

“I live at Coalgate. Q. Where do you work? A. At the Tavern. Q. Did you have occasion on the day that Frank Bristow was arrested to be in the Tavern ? A. Yes, sir, I was working. There was not any one who came in the tavern with Frank.' He started to drink a bottle of beer. It was opened, but he did not drink it. The law came in, and took him away. Max and McMillan were the officers. I know a man when he is drunk or sober. Q. Was Frank Bristow drunk or sober? A. He appeared to be sober to me.”

On cross-examination he said:

“My name is Alva Wheeler. I work for Gus Fleck. I was subpoenaed by Max Sandman to be a witness in the case. I did not have a conversation with him at that time; nor did I tell him that I did not know anything about the case. I haven’t told him anything. Frank Bristow asked me if he was drunk, and I told him I didn’t think so.”

Choc Manis, called as a witness for the defendant, stated:

“I live north of Coalgate. I am a farmer. I was in Coalgate on the day that Frank Bristow was arrested on this charge. I bought a disc from him on that day, and paid him $10 for it. When we loaded the disc, I said we ought to have a drink of beer on that; and we came to get the beer. We ordered a glass of beer; and the officers walked in the tavern, and arrested him, when we sat down. I am 31 years old. Frank Bristow was sober on that day.”

On cross-examination he stated he might have drunk some beer or something.

“I was not trying to detect whether he was drunk or sober. We loaded the disc out at the place where he lives. Frank helped us load it. I have been convicted of whisky.”

Mose Primer was called as a witness on behalf of the defendant, and stated:

“My name is Mose Primer. I am 51 years old. I live three miles north of Centrahoma. I know Frank Bristow. I was in Coalgate the day he was arrested. I was arrested first. The officer came and got me. He said, T am going to take you.’ I started to joking, and he said, T will take you anyhow.’ I said, ‘All right, I will go with you.’ He took me to jail; and I wanted to get out that day, and told him for Frank to get me out. After awhile he brought him, and put him in jail. I wanted Frank to help me get out of jail; but they arrested him and put him in jail. I don’t know what Holson’s name is. I know Williams of Atoka. He was in Coalgate that day. I met Frank on the street before this arrest, and talked with him awhile. Just general conversation. I saw the defendant Frank Bristow in Coalgate that morning.”

F. E. Bristow the defendant, testifying in his own behalf, stated:

“I am 64 years of age. I came to this country before statehood. On the day I was arrested, I was trying to make a trade with some Indians to buy some land from them. I saw John Holson that day. While I was in jail, the Indians that I was expecting to buy the land from -got away. That morning I sold Choc Manís a disc, and he gave me $10 for it. After he paid me, he said, ‘Frank we ought to have a little beer on this.’ And I said, ‘Yes, let’s get it.’ We went to the Tavern and ordered the beer; and the girl opened it; and just about that time Max Sandman and McMillan came in, and arrested me. They said, ‘You have been hollered on; and we will have to take you to jail.’ I told them to let me drink the beer; and they said they couldn’t do it. And to the jail house I was taken. I was not drunk that day. I was buying this boy a beer, but I did not get to buy it. I had $10 in my pocket when they put me in jail, and gave it to Max; he took it to the sheriff’s office, and kept it until they turned me out.”

On cross-examination he stated: “I did not know where the Indians went.”

On redirect examination he said;

“I sent Mose Primer after some Indians. I know Williams of Atoka. Mose Primer assists him sometimes in making purchases from the Indians. I was kept in jail until the next morning; then I made bond. I was as sober when they put me in jail for being drunk as I am now. I have trouble with corns on my feet; and sometimes when they are hurting, I don't walk straight. I have been drunk. I was not drunk at the time they took me to jail for being drunk. I didn’t have a start that day towards getting drunk. I take a drink, and sometimes get drunk.”

The foregoing is the substance of the testimony that was introduced in this case.

The defendant has assigned the following errors, alleged to- have been committed by the court: (1) The court erred in instructing the jury as to the time and place of the crime committed. (2) The verdict is contrary to the law and the evidence. (3) The court erred in not granting the plaintiff in error a new trial. (4) That there is no evidence on which to base a verdict.

It is apparent that Sheriff Clark, as good an officer as he is, did not believe that the defendant was drunk when he saw him on the street, and when he stated that he was staggering. The sheriff’s duty was plain. If he saw this defendant commit a crime in his presence, his duty was to have stopped the defendant, and taken him into custody; and either to have sent him to his home or taken him to jail until he sobered up or made his bond for his release. But the fact that the sheriff did not do it clearly shows that at the time when he said he saw the defendant going down the street staggering, he did not believe that the defendant was drunk, and that his testimony in this case is simply to try to bolster up and support the action of his deputies.

Let’s look a little further into this case, and we will find that John Holson went to the Fowler Barber Shop, where the sheriff was, and told him, not that the defendant in this case was drunk, but that Mose Primer was drunk; and the sheriff communicated with his officers; and they went out and took Mose Primer to jail.

John Holson admits that Williams, a land buyer commonly known as a land grafter, wanted him to tell the sheriff that the defendant was drunk, in order to get him in jail. Williams was in the city of Coalgate at the time.

As the defendant was going down the street that morning, and just a short while before he was arrested, W. P. Powers and Mr. Moore met him at different places along the street; and they say he was not drunk. Moore said he thought the defendant had had a drink; but he does not say what he thought the defendant had been drinking, if anything.

Alva Wheeler, who worked at Gus Fleck’s restaurant, says that the defendant was not drunk, and that no one in the restaurant had complained about the defendant being drunk. Alva Wheeler states that the defendant came into the restaurant, and ordered a bottle of beer; but before he had had time to drink it, the officers came in and took him out, insisting that he was drunk.

Choc Manis, who had bought a disc from the defendant, tells the court how it happened that he and the defendant were in the Fleck Restaurant at the time the officers came in; that after the disc had been loaded, that he suggested to the defendant that they ought to have a beer, and the defendant said, “All right”; and that the defendant was not drunk. They went into the restaurant; the beer was ordered, opened, and before they had time to drink it, the officers, on rumors they had heard somewhere along the line, came in and took the defendant out on a charge of being drunk. Neither of the officers who went in the restaurant and took the defendant out, knew anything about the defendant being drunk, except a rumor they claim they received from the sheriff, absolute hearsay, and without any fact from the sheriff to support it, except the statement of Holson, who went into the barber shop and told the sheriff that Mose Primer was out somewhere drunk. The defendant says he was not drunk; and the owner of the restaurant, Gus Fleck, says that the defendant was not drunk at the time he was arrested and taken out of his restaurant.

3.2 beer is declared to be non-intoxicating by the Oklahoma Statutes; and it is sold publicly in the different places of business throughout the state.

Officers, always when they get in a close place for testimony to support their charge of drunkenness, say that they smelled the defendant’s breath. There is not one officer in a hundred who can draw a distinction between the breath of an individual, who has been drinking beer and one who has been drinking whisky, if it had been some time since the liquid had been used by the party, whose breath the officers claim they smelled.

In all criminal trials, the defendant is entitled to a fair and impartial trial by an impartial jury; and if convicted at all, he must be convicted by competent evidence.

Section 3062, O. S. 1931, 22 Okla. St. Ann. § 834, in part provides that questions of fact are to be decided by the jury.

It has been repeatedly held by this court that the jury is the exclusive judge of the weight of the evidence; and if there is a clear conflict of evidence such that different inferences can properly be drawn from it, this determination will not be interfered with, unless it is clearly against the weight of the evidence, or appears to have been influenced by passion or prejudice.

A careful reading of the testimony in this case shows that the verdict and judgment is clearly against the weight of the evidence, there being no positive evidence that the defendant was drunk at the time the officers went into the restaurant and took him into custody, took him to jail, and kept him there over night. The man in the restaurant and the owner of the restaurant, both, testified positively that the defendant was not drunk. The fact that the two officers, Max and McMillan, who went into the restaurant where the defendant was, and took him out without any authority of law, except the authority of might and power possessed by officers that no private citizen cares to resist, and threw him in jail, shows the deputies exceeded their authority. This kind of conduct on the part of officers often causes trouble in communities, and has sometimes led to personal injuries and death. An officer has no more right to violate the law than an individual; in fact, he is under more obligation to obey and respect the law than is an individual. From the statements of the officers, themselves, who went into the restaurant and took the defendant out, it is admitted that they knew nothing about this defendant being intoxicated, and the only authority they had to go in where the defendant was and place him under arrest and take him out, was some conversation that the sheriff had had with them over the telephone.

The owner of the restaurant and those in there did not complain against the defendant, and say that he was drunk. The officers’ statement is not borne out by the testimony of the witnesses, who were unbiased and: unprejudiced in the case; and there is no competent testimony in the record sufficient to support a conviction against the defendant of being drunk in a public place.

This court has repeatedly held that it will not disturb the verdict on account of the insufficiency of the evidence when there is evidence to support it.

In Cude v. State, 42 Okla. Cr. 357, 276 P. 240, in the first paragraph of the syllabus, this court said:

“To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty, transcending mere probability or strong suspicion.”

In White et al. v. State, 13 Okla. Cr. 76, 162 P. 232, in the first paragraph of the syllabus, this court stated:

“While it is well settled thát this court will not disturb the verdict on account of the insufficiency of evidence when 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 such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon his trial for an offense.”

Wheeler v. State, 67 Okla. Cr. 291, 94 P. 2d 9, and authorities therein cited.

It is seldom that this court feels it to be its duty to reverse the ruling of the trial court, and to set aside a verdict for the want of sufficient legal evidence to sustain it; but when, as in this case, it is manifest that the verdict is clearly contrary to the evidence, and the judgment is wrong and should not be allowed to stand, we have no discretion in the matter, and must reverse the decision of the trial court.

After a careful examination of the record and the testimony, and considering the facts surrounding the prosecution of this case, we hold that the evidence of the state is insufficient to sustain the conviction of the defendant for being drunk in a public place.

The case is reversed and remanded.

DOYLE, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    LEE DICKSON v. STATE.
    No. A-9600.
    Sept. 22, 1939.
    (94 P. 2d 258.)

      A. 0. Manning, of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

There was filed in the county court of Alfalfa county, Okla., an information charging Lee Dickson with transporting spirituous and intoxicating liquor, to wit: about one pint of whisky, from a point or place unknown to your informant, to other points or places unknown to your informant, about three-quarters of a mile northwest of the town of Ingersoll, Okla. The defendant was convicted by the jury, and his punishment left to be fixed by the court. He was sentenced by the court to pay a fine of $50 and to be imprisoned in the county jail for 30 days. From this judgment and sentence, the defendant Lee Dickson has appealed.

Before the case was called for trial, on the 5th day of December, 1938, the defendant Lee Dickson filed his application to disqualify the county judge, Loyd W. Hadwiger, county judge of Alfalfa county, for the reason that the judge was a material witness in the case. On the 5th day of December, 1938, the said Judge Loyd W. Hadwiger filed his certificate of disqualification, for the reason that he and his family were material witnesses in the case. On the said 5th day of December, 1938, the county attorney, representing the state, and H. W. Wright, attorney at law representing the defendant, agreed that J. Wilford Hill be appointed special judge to act in the trial of the case. On the 6th day of December, 1938, the said J. Wilford Hill filed his oath as special judge to preside in the case of State v. Lee Dickson, No. 2342. On the 13th day of December, 1938, the defendant, by his attorney, A.. 0. Manning, asked permission to withdraw his plea of not guilty heretofore entered, for the purpose of filing a demurrer, which application of the defendant was granted; and the defendant filed his demurrer, in which he alleged that the said information is insufficient to charge the defendant with any public offense against the laws of the state of Oklahoma, and that the allegations therein contained are vague, indefinite, and uncertain, and wholly insufficient to charge the commission of any public offense against the laws of the state of Oklahoma; which demurrer by the court on the 13th day of December, 1938, overruled; and the defendant duly excepted.

The case was assigned for trial December 13, 1938; and on said date both parties having announced ready for trial, by and through their respective counsel, a jury of six men was sworn to try the issues joined and a true verdict render according to the law and evidence.

The defendant then filed the following motion:

“Comes now the defendant Lee Dickson, in case No. 2342, and objects to the County Judge Loyd W. Hadwiger qualifying the jury, and as reason and grounds therefor, and states that the duly elected and qualified judge is a material witness against the defendant, and his disqualification has been accepted, and a special judge, J. Wilford Hill of the Alfalfa county bar, has been agreed upon and qualified to sit in the case.
“Comes now the defendant Lee Dickson, and objects to the entire selection of the jury at this time, and as reason and grounds therefor, states that the said jury has been heretofore selected and called by the duly elected county judge, and objects to the county judge, Loyd W. Hadwiger, who is a material witness against this defendant in this case, qualifying said jury, which is highly prejudicial to the said defendant and his regular rights in said cause,” which was overruled by the court and exception saved.

If the facts stated in the motion of the defendant are true that Judge Loyd W. Hadwiger, who had disqualified to try the case, took part in calling, selecting, and qualifying said jury to sit in the trial of the defendant’s case, which objection is not disputed by the state, the defendant did not have that fair and impartial trial as guaranteed to him by the Constitution and laws of this state.

When Judge Loyd W. Hadwiger certified his disqualification to sit in the trial of this case, his jurisdiction as a trial judge then ceased. After his disqualifications were certified, any act or any part he took in selecting, qualifying, or examining the jurors to sit in the trial of the case was without authority of law, and deprived the defendant of a fair and impartial trial, and entitles the defendant to a reversal.

We have been unable to find a case where a judge disqualified on the ground of being a witness, and took any part in the trial after he had filed his certificate of disqualification; but we hold that the same principle would bind the judge, when he disqualified, on the grounds that he was a witness in the case, as the courts hold a judge who disqualifies to sit in the trial of a case, and then takes part in the trial of the case, where he has impaneled the jury, and examined them as to their qualifications to sit as jurors.

In Lilly v. State, 7 Okla. Cr. 284, 123 P. 575, Ann. Cas. 1914B, 443, this court, in the second paragraph of the syllabus, stated:

“When a judge of a court of record vacates the bench and prosecutes a person charged with crime in the court over which he presides and before a jury drawn and impaneled by him, a judgment of conviction had under such circumstances will be reversed.”

In the body of the opinion the court cites with approval a decision of the Supreme Court of Florida in the case of Perry et al. v. Bush, 46 Fla. 242, 224, 35 So. 225, 226, and states:

“The doctrine announced by the Supreme Court of Florida, in the case of Perry et al. v. Bush, supra, appeals to us as being a sound exposition of the law * * *.”

Again quoting from Lilly v. State, supra, the court says:

“It is sufficient to say that no conviction secured in the courts of this state, wherein the resident district judge has vacated the bench and become a special prosecuting attorney before a jury which was drawn and impaneled under his direction, and which has been accustomed to receive instructions and determine litigated questions before him, will be permitted to stand in this jurisdiction.”

In Roddie v. State, 19 Okla. Cr. 63, 198 P. 342, 343, in the ninth paragraph of the syllabus the court stated:

“Under the statutes of this state an attorney at law, who holds a commission as judge of any court of record in this state, is prohibited from practicing law as an attorney, counselor, or advocate in any of the state courts so long as he occupies such official position.”

In Knight v. State, 49 Okla. Cr. 123, 295 P. 409, in the second paragraph of the syllabus, the court said:

“When the judge of a court of record disqualifies in a criminal case, and on the part of the prosecution participates in the trial, a judgment of conviction will be reversed on the ground that the defendant did not have a fair and impartial trial.”

In Knight v. State, supra, the district judge of the district, P. L. Gassaway, living at Coalgate, Coal county, Okla., certified his disqualification; and when the case went to trial, took part in and assisted in the prosecution.

Section 4199, O. S. 1931, 5 Okla. St. Ann. § 1, is as follows:

“No person shall practice as an attorney and counselor at law in any court of this state who is not a citizen of the United States, or who holds a commission as judge of any court of record, or who is a sheriff, coroner, or deputy sheriff; nor shall the clerk of the Supreme Court or the clerk of the district court, or probate court, or the deputy of either, practice in the particular court of which he is clerk or deputy clerk; but nothing herein contained shall prevent any judge of any of the courts of this state from finishing any business by him undertaken in the district, circuit, or Supreme Court of the United States, prior to his election or appointment as judge; and an alien who has declared his intention to become a citizen of the United States may practice as if he were a citizen.”

By the provisions of the statute, the law aims, as far as possible, to give the accused a trial that should not only be fair, but free as may be from any suspicion, or partiality, or undue influence.

In order to arrive at a correct understanding of the meaning of the statute prohibiting the judge of any court of record from practicing law in this state, we are privileged to inquire as to the nature and character of the evils it was intended to prevent. It is apparent that one of the objects of the adoption of the statute was to separate the judge personally, as well as officially, from all that manner of life so calculated to destroy impartiality of judgment and balance of temper which may, and does sometimes, influence the lawyer. But this does not appertain altogether to the interest of the public, and, if it were all, it could scarcely be considered grounds for a reversal of the judgment against the defendant; but this we think is not all of it; but, as contended by the defendant’s counsel, the known official position of the judge, and the general confidence reposed in the judge by the masses, is such as to make his words and actions of far greater weight than the words of men occupying a merely private or professional situation.

It is quite true the official position would not have any tendency to render the opinions or argument of counsel intrinsically any more sound or plausible; but when they were addressed to the jury, or the jury saw the interest the regular judge was taking in the trial of the case on behalf of the state, whose members were accustomed to receiving and obeying the instructions of the judge, it is not unreasonable to suppose that circumstances may, insensibly in the minds, have given to them additional force and influence. Such an influence even the best juror would have found it sufficiently difficult to guard against; and quite as difficult, perhaps, as they would to throw off or lay aside such preconceived opinions of the merits of the case as would have disqualified them as jurors. We cannot say that this is a matter of indifference to the person on trial. It is altogether easily to be conceived that the same thoughts were reasonably in the minds of the framers of the statute. We think that any other theory would be a dangerous one to approve and put into practice. We have no doubt that whatever connection with the trial is forbidden by the statute on the ground of public policy, the party concerned may except to; and that he has the right to insist upon his exception, where it has reference to a breach of a statute enacted for the direction of the highest officer of justice as of one for the lowest; the correctness of the motive, high standing, and upright character of the officer concerned cannot be considered on such an exception, and consequently be an answer to it. There can scarcely be any doubt that public policy forbids a judge to practice law, or to assist, or counsel, to appear, or take part in any way in the trial of a case. The impropriety of a judge leaving the bench and appearing as counsel in a criminal case on trial in his own court, or aiding, suggesting, or advising counsel in charge of the prosecution, is perfectly apparent, and could not do otherwise than prejudice the substantial rights of the defendant. A similar question to the one in this case was in Roddie v. State, supra, and in Lilly v. State, supra.

The judge, when he certified his disqualification to try this case, was still the county judge of the county in which the case was to be tried; and he had been presiding over the county court for sometime. The jurors were accustomed to being in his court, and seeing him preside in cases tried in his county. The judge was, also, the main witness in this case; and any action upon his part in qualifying the jurors, selecting them, or in any manner whatever taking part in the qualification or selection of the jurors to try the charge, was prejudicial to the defendant, and deprived him of a fair and impartial trial.

For the reasons herein stated, the judgment of the trial court is therefore reversed, and a new trial awarded,

DOYLE, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    L. A. HIATT v. STATE.
    No. A-9492.
    Sept. 22, 1939.
    (94 P. 2d 262.)

      J. Scott Vincent, of Cheyenne, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Carl A. Beavin, Co. Atty., of Cheyenne, for the State.
   BAREFOOT, J.

Defendant was charged in the county court of Roger Mills county, with the crime of selling intoxicating liquor; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

The record in this case reveals that the defendant’s home and place of business was located on the highway four miles north of Cheyenne, Roger Mills county. He was charged with selling one and a half pints of whisky to Bruce Rainey and Edward Snyder, on the 13th day oí January, 1938.

The evidence reveals that Bruce Rainey was a constable at Weatherford, in Custer county; that he had a warrant for the arrest of a party on a bogus check charge who lived in Roger Mills county; that he went to that county on the 13th day of January, 1938, and Edward Snyder, who was a senior student in the Southwestern State Teachers’ College, at Weatherford, accompanied him. They went to the sheriff’s office to get his assistance in locating the party whom they desired to see, and while there the sheriff talked to them about the defendant; and they were given $3 by the sheriff to buy whisky from the defendant. They each testified that they went to the place of business of defendant and there purchased from him a half pint of whisky, which they drank, and then purchased a pint of whisky, which they marked by signing their names and placing the date the liquor was bought on the bottle. This bottle of whisky was turned to the sheriff, who in company with his undersheriff had followed the parties, and was in close proximity to where the liquor was sold. The bottle of whisky was introduced in evidence and identified by the witnesses.

The defendant testified that he did not sell the liquor, and that he had never seen the parties until the day of the trial.

The evidence revealed that the witness Bruce Rainey had been to the penitentiary for burglary, and had upon two occasions been confined in the insane asylum, but had escaped therefrom and his case had been closed upon the books of that institution.

Defendant has presented and discussed in his brief several assignments of error. We have carefully considered them and find no error that would require a reversal of this case.

It is contended that the jury, while deliberating on their verdict, were brought into court, and there saw defendant on trial on a whisky charge which was a different case. There is nothing in the record to sustain the statements made in defendant’s brief. Nothing appears in the motion for a new trial in reference thereto.

It is contended that the evidence was insufficient to support the verdict. This contention is based upon the fact that the witness Bruce Rainey was a morphine addict, and had twice been committed to the hospital for the insane as an insane person, and that both times he had escaped from the hospital. This contention is based upon a motion for new trial filed more than three weeks after the motion for new trial had been overruled, and defendant had been sentenced. Notwithstanding the testimony of the witness Rainey, the evidence of the witness Snyder, who was unimpeached, was sufficient for the jury to find the defendant guilty. In the case of Medlock v. State, 66 Okla. Cr. 27, 89 P. 2d 377, this court said:

“The sale of intoxicating liquor to an officer is as unlawful as is the sale of intoxicating liquor to any individual.”

The failure of the court to. permit counsel for defendant to ask certain questions on cross-examination was clearly not erroneous. These questions were upon wholly immaterial matters and no effort was made to show that they were in any way material to the issues of the case.

Defendant’s motion for a continuance of the hearing of the motion for new trial did not comply with the statute. Okla. Stats. 1931, sec. 397; Okla. Stats. Anno., title 12, sec. 668. The defendant was convicted on the 9th day of February. The motion for new trial was not passed on until the 16th day of February.

The contention that the defendant presented “newly discovered evidence,” which consisted of the fact that the witness Bruce Rainey had been in the state hospital for the insane and had escaped therefrom was not suificient to grant a new trial in this case. Section 272, Oklahoma Stats. 1931; Okla. Stats. Annot., title 12, sec. 385, relating to the competency of witnesses is cited, but a reading of the same shows that it applies to an unsound mental condition at the time the witness is called to testify. No evidence was offered to show that the witness was suffering from any mental deficiency at the time of this trial.

Section 5045, Okla. Stats. 1931, Okla. Stats. Annot. title 35, sec. 1, is cited by defendant. The act now in force with reference to the admission of persons to the state hospital for insane was adopted in 1917, and is article 1, ch. 26, Okla. Stats. 1931, secs. 4994 to 5038, Okla. Stats. Annot. title 35, sec. 51 et seq.

These different statutes have been construed by the Supreme Court of this state in the case of Kirk v. McClendon, 94 Okla. 33, 220 P. 949. In the fourth paragraph of the syllabus the court says:

“An order of a board of insanity, adjudging one to be insane, has no bearing upon his legal, mental status; the effect of such an order is to admit one to the state hospital for treatment, as the members of such board do not act as judicial officers, but as a special board, clothed with a special power only; and the fact that the county judge is a member of said board does not affect the matter, as he acts as any other member of the board and not as a county judge or as a county court.”

See, also, Clements v. McGinn, 4 Cal. Unrep. 163, 33 P. 920; People v. Tyree, 21 Cal. App. 701, 132 P. 784; State v. Simes, 12 Idaho, 310, 85 P. 914, 9 Ann. Cas. 1216; City of Guthrie v. Shaffer, 7 Okla. 459, 54 P. 698; Beard v. State, 37 Okla. Cr. 62, 256 P. 354. See, also, Quinn v. State, 55 Okla. Cr. 116, 25 P. 2d 711, 712; Caple v. State, 3 Okla. Cr. 621, 622, 105 P. 681.

Finding no error, it is the judgment of the court that the judgment and sentence of the county court of Roger Mills county should be affirmed, and it is so ordered.

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


author: DOYLE, P. J.

text:
    GEORGE W. HOGGATT v. STATE.
    No. A-9303.
    Sept. 22, 1939.
    (94 P. 2d 264.)

      H. Tom Kight and H. Tom Eight, Jr., both of Clare-more, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

George W. Hoggatt was tried upon information filed in the district court of Rogers county October 22, 1935, charging him with the murder of one R. A. Maple, alleged to have been committed on the 14th day of September, 1935, by shooting him with a pistol.

It appears from the record that on October 20, 1936, both parties announced ready, and the defendant was placed on trial. On October 24, the jury returned a verdict finding him guilty as charged in the information and assessed his punishment at life imprisonment.

Judgment in accordance with the verdict was rendered November 13, 1936. The petition in error with case-made were filed in this court April 8, 1937, but there has been no appearance in his behalf on his appeal.

The assignments of error relate to rulings of the court on the admission and the exclusion of evidence and to instructions given by the court to the jury, and that the verdict is against the law and not supported by the evidence.

Upon arraignment the defendant entered a plea of not guilty. At the trial the defense interposed Was insanity; that the killing was excusable, because the defendant was insane at the time.

The theory of the prosecution was that the manner of this killing shows it was a willful, deliberate and premeditated murder.

The undisputed facts as established by the evidence are, that late in the evening, just after dark, on September 14, 1935, R. A. Maple was shot by the defendant, in the defendant’s home in Claremore. At the same time the defendant shot Mrs. R. A. Maple. R. A. Maple was 63 years old at the time of his death; he was the father-in-law of the defendant, Mrs. Hoggatt, wife of the defendant, being the only child of her parents.

A. L. Mosgrave testified that he received an emergency call to the home of George Hoggatt; that he answered the call and found Mr. and Mrs. Maple in the Hoggatt house lying on the floor; Mr. Maple was dead; Mrs. Maple was wounded and unconscious; they were put in ambulances and taken to the Franklin Hospital. After an examination the body of Mr. Maple was taken to the funeral home and Mrs. Maple was left in the hospital. When found Mr. Maple was lying with his feet in the house and. his head outside the screen door. Mrs. Maple lay just behind him. He found the wounds in the body ranged from the left side, one bullet entered the left arm and the left side, and there was one that entered just below and through this arm, then there was one that entered through the body and ranged up, and one bullet entered the top of the left shoulder and came out at eight inches below; there were bruises over his right eye and on his cheek, and there were two openings on his head, one right on top and one right behind it.

To the same effect was the testimony of John Mus-grove, associated with A. L., his father, in the funeral home.

W. F. Hayes, M. D., testified that he was called to the Franklin Hospital about 8 o’clock that evening-, and found Mrs. Maple on the operating table. Mr. Maple was dead. Later made an examination and found that he had been shot three times, and found several wounds on his head, looked like they were made with a blunt in-. strument; that the bullet wounds were sufficient to produce death, almost instantly.

Dr. B. F. Collins, M. D., testified that he made an examination of Mr. Maple’s body at the undertaker’s with Dr. Hayes. His description of the gunshot wounds and other injuries was in substance the same as that of Dr. Hayes. He further testified that he examined Mrs. Maple, found one gunshot wound just below the lobe of the right ear, another gunshot wound went straight through the muscles of the back, found 12 wounds that in his opinion were caused by bullets, and found her forehead beaten in and both frontal lobes of the brain ruptured and discharging bits of bone, which wounds were made with some blunt instrument.

The evidence on the part of the state tends to show the following facts:

That R. A. Maple was 63 years old, at the time of his death; that he came with his father to Beaver county where the family settled on a farm and was there engaged in farming and stock raising for 50 years.

Mrs. Pearl Maple testified:

“I live in Beaver county, I have lived there 50 years, I live eight or ten miles northeast of Beaver City; my husband’s name was R. A. Maple, he was commonly known as Bob Maple; we were married in 1902, and lived on the place we homesteaded for four years before we moved to where I now live. We had two children, a boy and a girl; we lost our boy when he was three years old, my daughter’s name is ‘Nina’, I have known the defendant, George Hoggart, nine or ten years. He came to our place, I believe it was in 1926, and started working there, he continued to work until sometime in 1929. My daughter Nina was about 15 or 16 years old when he started to work for us; she and the defendant were married at Liberal, Kan., at the home of Dr. Trickle. My husband and I were there. They returned to our place and my husband and I went on to Colorado. They lived in our house for about a month, then they got their furniture and fixed up their house. The defendant and his wife moved away from our ranch in 1929, and moved to Claremore. On September 14, 1935, my husband and I came to Claremore on a visit to them. We got there about 10:30 in the morning; my daughter, the defendant and their two little boys were there, we brought their little girl with us; she had been staying with us; we were there for dinner that day; after my daughter and I washed the dishes, we gave the children a bath; my husband and the defendant went to a sale; when they came back we all got in our car and came down town and looked at some goods for the little girl; then we all went out to C. C. Hoggatt’s home and stayed there about two hours; it was before sundown when we returned to Claremore. We had supper and prepared to stay all night; my husband, my daughter and her husband went up town; they were gone about three quarters of an hour; we sat down and visited a while and my husband said, T believe I will go out on the porch, it is cooler out there.’ The defendant talked a little while, then got up and said something about there being such a bunch of crooks around there, that he had to keep things locked; he went over and locked a screen, and then sat down, and we were visiting and talking about the boys’ suits; I was leaning over so I would not be between my husband and the defendant who were talking. The defendant said that Nina was going home with us. He had mentioned that before when we were going to Mr. Hoggatt’s, that she was going home to stay with us a couple of weeks, that he had a government’s job, and was going tto be gone that length of time. He said he would go and get her suitcase, and he went in the other room; when he came back, I didn’t pay much attention to him, and he came about four feet in the room and said: ‘You and Bob, you have been trying to separate us every since we have been married, and here is something that is going to stop it right now.’ I was looking right down in the barrel of a gun, I started to say, 'George, you can’t do that,’ but I never said it. He went to shooting and I think he shot me first, but about that I can’t be sure. I think he shot me right here (indicating); it just felt like a real hard lick With a hammer, and then flame and smoke and noise, not that I remember real clearly, but I think I fell over against Bob. I am not certain about this, but I believe that I grabbed him by the arm, and he turned around and fell, I turned around and fell with my head towards the door, and I could look out in the street; they had the street lights on, and everything was just as bright and clear, and he was beating Bob in the back of the head with the butt end of the gun, and he said, 'Here’s one fellow nobody is going to get $4,000 a year to take care of.’ It became difficult for me to breathe, then I lost consciousness.”

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

“I was born in 1904, at Watongá, Blaine county, I lived there until when I was six or seven years old; my father and mother separated, and I went to live with my grandmother; she had a half section, about twelve miles from Beaver City; my sister, two years younger lived there with us, my grandmother was a Widow, I lived with my grandmother Until I was 17 or 18, then I left and worked mostly on cow ranches, I bought 160 acres when I was 20 years old, and rented it for a wheat farm, I went to school and I was in the Seventh or Eighth grade when I quit. I worked for John George on the T Bar T Ranch for a dollar a day. I stayed there four mónths. I didn’t like it. We were good friends, but I Was alone in the management, so I left and went to town. I saw Bob Maple and he hired me on the street, that was the 15th day of November, in 1926. I had a good horse and I rode out to his ranch that evening and went to work the next morning, feeding cattle, fixing fence, just ranch work. It was just a medium size ranch for that country. He had between 900 and 1,000 head, somewhere in that neighborhood, at that time. I stayed until the next November, and then until the next year, I think I had been there a month or six weeks when their daughter Nina came home from the Goodwell Agricultural School. I think she was past 15 or 16 at that time; she always spent her summers at home. In 1927 we were married in Liberal, Kan., at Hr. Trickle’s. Mr. and Mrs. Maple were there when we were married. They went on a trip to the mountains. My wife and I went back to the ranch, that was in July, 1928. One of the first things that happened between me and Mrs. Maple, she didn’t want my wife to have any children until two years, and when she did become pregnant and told her mother, things were not sitting a bit good. My wife told me that Mrs. Maple kept insisting that she would not live with me any more. Bob Maple, through Mrs. Maple’s instructions, had me put in jail in Beaver City. They claimed that I was insane. I stayed there I think two days and a half. I called my father at Tulsa from the jail. He came over. Mr. Maple made a proposition that if he would take me out of jail and keep me out, that he would release me, and Dad agreed to it. He came and told me about it, and told me it would be best for me to do that. I agreed to do that, except one thing, I asked Mr. Maple if he would object to me seeing my wife before I left. I had a Chevrolet coupe, brand new, my father went with me, to Mr. Maple’s place to see my wife. We got there in the evening and stayed all night, I got to see my wife. She told me she had overheard her father and mother plan and scheme to throw me in jail. The next morning I asked Mr. Maple if I could see my wife, and I went upstairs to her room. She was already dressed and had the baby ready, and had her grip packed, and she took the baby in her arms and walked downstairs, Mr. Maple said: ‘What does this mean?’ And she never said a thing, she walked towards the door, and I was behind her with the grip. He said: ‘Daughter, if you leave with that boy I don’t want you to ever come back, I am going to disinherit you,’ and she went out and got in my car and Dad followed after me, Mr. Maple called him back, and Dad told me what Mr. Maple told him; he said, ‘This is not according to our agreement,’ and Dad says, ‘The boy is of age’ and ‘The girl is of age,’ they are both man and wife, and that is their child.’ He says, ‘Just between you and me I don’t think there is anything I can do to them’, he turned around, came out and got in the car and we left. We went to Beaver City, I drew out a little money I had there in the bank, and we went on to Tulsa, as straight as 64 would take us. With my wife and baby I lived in Tulsa possibly two months, then moved out on my uncle C. C. Hoggatt’s place, two miles from Catoosa, lived there around two months, then I bought a fifty acre farm, about a mile and a quarter south of Oologah and Clare-more bridge on the Verdigris, and moved there September 14, 1929. We lived on this place four or five years. Mr. and Mrs. Maple came down and wanted us to go back, they came and visited three times the last two years. In May, 1934, we went back and lived in a little house on the place, we had all three of the children at that time, Mrs. Maple kept finding fault of the way my wife was keeping house, my wife found a brand new bottle of arsenic and she showed it to me. We stayed there about seven months. In January we moved away, they wanted to keep the little girl so they could get enough pupils to have this school, so that is how she came to stay. We went back to our little place out there and sold it in March following, then we moved to Claremore, the east part of town, I had a hard time getting a job, but finally got one, probably three weeks after we moved in here, we had this trouble.”

The following excerpts from the defendant’s testimony disclose his version of the tragedy:

“Q. When you got back then what did you do? A. I can’t remember clearly. Seems like we got out of the car and got on the porch, and they went in, and seems like Mr. Maple and I sat on the porch swing. I am not sure. And then, we got up and went into the house. Q. When you got in there did you say anything? A. Yes, they were sitting there and my wife went into the bedroom, and she had her grip and those bundles, and she begin to untie those bundles, and put the clothes in the grip. Q. Now, George, after you saw the bags were being packed, and preparations were being made to go, then what happened? A. I don’t remember anything clearly after that, I don’t remember a thing. It is all just a dream. Q. Where were you when you did know what was going on? A. I was in jail. Q. Did you know anything about being out at C. C. Hoggatt’s that night? A. I don’t know anything. I don’t recall it. Q. Did you call for me that night? A. I don’t recall. Mr. Right, Sr.: You may take the witness.”

On cross-examination he stated that when he sold his farm he left Beaver county, having somewhere between $7,000 and $8,000, the proceeds of the farm, cattle and wheat.

Asked how much money he had in the bank at the time of this tragedy, he answered: “Six or seven hundred dollars.”

The defendant was the only witness who testified to any facts or circumstances which in any way tended to show that his wife’s parents attempted or intended to separate him and his wife.

The defendant’s wife was not called as a witness in his behalf.

Under the plea of not guilty counsel for the defendant introduced witnesses in an attempt to prove that at the time of the commission of the homicide, the defendant was insane.

Dave Falkner testified that he had been county commissioner, Rogers county, also sheriif for ten years up to January, 1935, saw the defendant often the past two years, had numerous conversations with him, that he often came to his house, and two days before the tragedy the defendant said they are going to be here in a few' days, “they are going to do just as I have been telling you they were going to do.”

“Q. What do you say as to his mental condition at that time, as to whether he was sane or insane? A. Why, I think he was sane when he was talking to me if he ever was. Q. You mean at each of those times? A. Yes, sir.”

Several lay witnesses testified that from their acquaintance and conversations with thé defendant about his family troubles, they considered him mentally unsound and insane on that subject.

Dr. G. W. Benson testified that he was jail physician and two or three days after the defendant was confined in jail he saw him; that he observed him probably more especially than he did other prisoners in the jail, and in his opinion he was at that time insane, that he thinks he was suffering from delusional insanity, acquired, that he did not think he knew right from wrong when he lost control of consciousness and volition at that time.

Dr. J. C. Bushyhead testified that he has been practicing medicine in Claremore about forty-five years, knows the defendant and has been his family physician for about four years, and was present in the courtroom during the time he testified.

“Q. I wish you would tell the jury if, in your judgment, from all of your observations and opportunities that you have had to observe him, if you believe now that at the time of the commission of this crime that he was sane or insane? A. Well, I can’t say, because I haven’t seen George in a long time. Q. Do you believe now that he was in a condition mentally to determine right ;from wrong? A. I don’t know. Q. What is your opinion, based upon the facts that you have given, as to his being rational or irrational at that time? A. Well, I just can’t say. Q. What is your opinion, Doctor? A. Well, my opinion would be that he was irrational.”

In rebuttal the state introduced lay witnesses giving as their opinion that the defendant was sane.

Oce Denbo testified that he was Rogers county jailer; that he saw the defendant the next day after the tragedy, observed his demeanor and conduct and had conversations with him nearly every day. Asked: “State to this jury as a layman whether in your opinion he was sane or insane.” Answered: “I think he was sane.”

A. M. Arnold, M. D., testified: “I live in Claremore; I have been a practicing physician for the past 47 years, I heard the defendant’s testimony and I observed him closely. I believe he was sane.”

W. D. Anderson, M. D., asked:

“Q. From your knowledge as a physician, and from your experience as a physician and examining cases, either at Claremore or otherwise, and from all of the testimony that you have heard in this case, including the testimony of the defendant, both at the former trial and this trial, and the observation that you made of him, from the witness stand, tell the jury whether in your opinion at the time of the commission of this tragedy on September 14th, 1935, he was sane or insane, or whether he knew the difference between right and wrong? A. X think he was sane. I think he knew the difference between right and wrong at the time of the commission of the crime.”

Mrs. Pearl Maple, recalled in rebuttal, testified:

“My daughter’s first baby was born at the Ashland Hospital; my husband, her husband and myself were with her; I never did at any time tell the defendant that he could not come in to see his wife, I heard his testimony yesterday to the effect that in 1934, after they came back out to Beaver I asked him to go and be sterilized, I never at any time asked him to have a sterilization operation of any kind. I heard his testimony that I bought some arsenic. I did not at any time purchase any arsenic for any purpose; I heard his testimony that I said to him on the trip from C. C. Hoggatt’s home that day that the marriage was a mistake from the beginning, and that I had come to take my daughter and the children. I never said that then, or at any other time.”

The transcript of the testimony comprises 400 typewritten pages, but the foregoing is a substantial statement of the material evidence introduced in the case. While the defendant is not represented by counsel in this court, we have with much care examined the entire record, and we have been unable to find that the defendant has been deprived of a substantial right guaranteed to him under the law.

After a careful examination of the record and the exceptions taken to the rulings of the court on the admission and rejection of testimony, we are satisfied that, within well-settled rules sustained and upheld by the decisions of this court, no material error was committed by the court in any of its rulings.

Our Penal Code, Sec. 1797, 21 Okla. St. Ann. § 152, in part provides that:

“All persons are capable of committing crimes, except those belonging to the following classes: # * *
“4. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.”

In the case of Alberty v. State, 10 Okla. Cr. 616, 140 P. 1025, 52 L.R.A., N.S., 248, this court held:

“That, under this provision, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.”

In the case of Adair v. State, 6 Okla. Cr. 284, 118 P. 416, 420, 44 L.R.A., N.S., 119, it is said:

“It is immaterial what standard scientists or medical experts may fix to determine, or by what rules they determine, that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind, or temporarily or partially deprived of reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed and charged, and incapable to understand the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case. * * *
“Every defendant is presumed in law to be sane and capable of knowing right from wrong, and able to choose between them. This presumption, however, upon a trial for murder, is overcome whenever evidence is adduced sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission of the homicide. The law thereupon imposes upon the state the burden of establishing the sanity of the defendant the same as any other material fact necessary to warrant a conviction; that is, beyond a reasonable doubt.”

To the same effect is the holding in Smith v. State, 12 Okla. Cr. 307, 155 P. 699; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Reed v. State, 14 Okla. Cr. 651, 174 P. 800; Snodgrass v. State, 15 Okla. Cr. 117, 175 P. 129; Roe v. State, 17 Okla. Cr. 587, 191 P. 1048; McNeill v. State, 18 Okla. Cr. 1, 192 P. 256; Doublehead v. State, 27 Okla Cr. 375, 228 P. 170.

Where one is being tried for murder, and his defense is insanity, lunacy, or unsoundness of mind at the time of committing the act, the defendant, in the first instance, is presumed to be sane and of sound mind, and the burden is upon him to introduce sufficient evidence to raise a reasonable doubt as to his sanity. When he has done this, the state, before a conviction can be had, is required to prove his sanity beyond a reasonable doubt.

The trial court fully and fairly instructed the jury on the law of insanity, the only defense insisted on at the trial. The jury returned a verdict of guilty, necessarily finding the defendant to be sane. We think no honest and intelligent jury could arrive at a conclusion different from the guilt of the defendant of the crime of murder. There was no denial of the fact that he killed his father-in-law in the presence of his wife and her mother, and the evidence is such that it not only convinces this court that there was no question but that the defendant was sane at the time of the commission of the homicide, but also that the evidence introduced by him on the question of his sanity was insufficient even to overcome the legal presumption of sanity presumed to exist in all those charged with crime.

The evidence discloses a willful, deliberate, and in our opinion a premeditated, taking of human life, by a person who understood perfectly well the nature and consequences of his act. Upon the whole record we are of the opinion that the defendant had a fair and impartial trial, with every right accorded to him that the law justifies or requires, and it would have been a miscarriage of justice, as we think, if upon the evidence any other verdict had been rendered.

The judgment of the district court of Rogers county herein is therefore affirmed.

BAREFOOT, J., concurs. DAVENPORT, J., not participating.


text:
    PETE MARTIN v. STATE.
    No. A-9488.
    Sept. 22, 1939.
    (94 P. 2d 270.)

      Falkenstine & Fisher, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Nelson Crow, Co. Atty., of Watonga, for the State.
   BAREFOOT, J.

Defendant was charged by information filed in Blaine county, with the crime of “assault and battery with a deadly weapon with intent to kill”; was tried, convicted, and sentenced to serve a term of four years in the penitentiary, and has appealed.

The facts in this case are that defendant resided near the town of Longdale, in Blaine county. On the night of June 26, 1937, he entered the restaurant of Bob McClaren, and was drinking beer. Some party, whose name the record does not disclose, with a lady companion, was sitting in a booth, and was approached by defendant. An altercation arose, and defendant was knocked down. The proprietor, Bob McClaren, came from the kitchen and got between the parties, and the city marshal, Oscar Phillips, came in the restaurant, and at the request of the proprietor, took charge of defendant and started with him to the city jail. Another man, by the name of Parmenter, who claimed to be an officer, but who was not a witness in the case, accompanied them. When at or near the jail defendant broke away from the prosecuting witness and ran back in front of the Hutton Drug Store.

There is a conflict in the testimony as to why he broke away, the defendant testifying that the prosecuting witness hit him over the head with his “billy”, and the city marshal saying that he did not do so, but that he ran without cause. The marshal, Oscar Phillips, followed defendant to the front of the drug store, and defendant was standing behind several parties, asking them not to let the officers “get him,” or “hit him.” There is a direct conflict in the testimony as to what occurred at this time. The prosecuting witness and several others testified that when the city marshal took defendant by the arm to return him to the city jail, defendant immediately struck Phillips, the city marshal, and that blood flowed. The defendant and others testified that the prosecuting witness first struck defendant with his “billy,” and knocked him down. As a result the prosecuting witness was cut at three different places, once on his body, his arm, and his leg. The defendant was struck on the head from ten to twenty times with the “billy,” and both parties were taken to the same doctor at Canton, a nearby town, and their wounds dressed. They were both confined to their homes for a period of four or five days.

Several errors are assigned, and we are of the opinion that they may all be considered together, and in a general way. It is contended that there was error in the admission of certain evidence; that certain instructions were erroneous, and that the evidence was insufficient to sustain the verdict, and that the punishment assessed by the jury was excessive, and was the result of passion and prejudice.

The information in this case was based upon Oklahoma Statutes, 1931, section 1873, Okla. Stats. Anno, title 21, sec. 652, which is as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.”

In compliance with many decisions of this court, the trial court also submitted to the jury, as an included offense, a charge under Oklahoma Statutes 1931, sec. 1870, Okla. Stats. Anno., title 21, sec. 645, which is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

And also under the assault and battery statute, Oklahoma Statutes 1931, secs. 1865, 1866, and 1868, Okla. Stats. Anno., title 21, secs. 641, 642, and 644, respectively, as follows:

“An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.”
“A battery is any willful and unlawful use of force or violence upon the person of another.”
“Assault, or assault and battery, shall be punishable by imprisonment in a county jail not exceeding thirty days, or by a fine of not less than five dollars or more than one hundred dollars, or both, at the discretion of the court.”

The verdict of the jury finding defendant guilty under the first charge was as follows:

“We the jury, impaneled and sworn to try the issues in the above entitled cause, do upon our oaths, find the defendant guilty of assault and battery by means of a deadly weapon, with intent to kill, as charged in the information, and assess his punishment at imprisonment in the state penitentiary, for a term of 4 years.”

From a reading of the above statute, Oklahoma Statutes 1931, sec. 1873, Okla. Stats. Anno., title 21, sec. 652, it will be noted that it is divided into four distinct parts. It is the violation of the second part of this section with which defendant was charged, and convicted, it says:

“* * * or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death.” Gober v. State, 25 Okla. Cr. 145, 219 P. 173.

Under the decisions of this court it has been universally held that to sustain a conviction under this clause of this section, it is necessary for the state to prove that the instrument used was a deadly weapon, or that the wounds inflicted would likely produce death. This does not mean that they could produce death if complications were allowed to arise.

In the case of Brown v. State, 3 Okla. Cr. 42, 104 P. 78, 79, the court quotes the indictment, as follows:

“* * * unlawfully, knowingly, willfully, intentionally, wrongfully, and feloniously, with certain knives, the same then and there being deadly weapons, which they then and there in their hands had and held, commit an assault and battery on one John Horton, and they, the said Ira Brown, Roy Temple, and Vick Minnick, with the said knives held in their hands as aforesaid, then and there at and against and into the head and face and against and into divers other parts of the body and person of him, the said John Horton, with said knives, so held in their hands as aforesaid, did ‘strike, cut, and wound, as aforesaid, the head, face, body, and person of him, the said John Horton, with the felonious intent then and there and thereby, he, the said John Horton, unlawfully, knowingly, willfully, intentionally, wrongfully, and feloniously to kill.”

This indictment is practically the same as in the instant case. The court further said:

“The above statute embraces several species of offense, punishable alike, yet different both in description and degree, as appears in some of the offenses denounced a person may be convicted of a lesser degree of misdemeanor, while under the last offense there are no degrees. The defendant by the indictment in this case is charged with a violation of that species of the offense the elements of which are an assault and battery upon another by means of a deadly weapon, or by other means or force likely to produce death. The language of the indictment is that ‘defendants with certain knives, the same being deadly weapons, which they then and there in their hands had and held, commit an assault and battery upon one John Horton,’ etc. An ordinary penknife is not necessarily a deadly weapon. A witness’ testimony is no stronger than it is made on his cross-examination. Kopf v. Monroe Stone Co., 133 Mich. [286] 296, 95 N. W. 72. The prosecuting witness, Horton, testified, in answer to a question concerning the assault and battery, as follows:
“‘No; here is where he struck me first (indicating), and after that he broke his knife blade, and I had on a thin shirt, and of course he struck me with the blunt end of the knife blade and made this scar.’ ”

The court then discusses the evidence which is very similar to the evidence in the case at bar, and says:

“Under this evidence it cannot be said, either as a matter of law or matter of fact, that a knife with the blade broken off is a deadly weapon. Evins v. State, 46 Ala. 88. There is no evidence as to the size of the knife, or the length of the broken blade. The evidence shows that the wounds inflicted by the knife were slight, and not of a serious nature. There being no proof in the record of the deadly character of the weapon, and such proof as was offered repelling the idea that the weapon was deadly, dangerous, or likely to produce death, the motion of the plaintiff in error based on the ground of the insufficiency of the evidence to sustain the verdict, should have been granted. Key v. State, 12 Tex. App. 506.
“The plaintiff in error complains that the verdict of the jury is not sustained by the evidence, and this court is not unmindful of the rule that appellate courts should not disturb verdicts of juries in cases where there is a conflict in the evidence, and especially where the verdict has been approved by the trial judge upon a motion for a new trial; yet where the evidence in the case to sustain the verdict is of such weak and uncertain character that the court cannot say that the jury was not misled by irrelevant and illegal testimony appearing in the record, and did not act upon prejudice or passion, this court will order a new trial. Drury v. Territory, 9 Okla. 398, 60 P. 101. We have examined the evidence in this case, and find it very weak and uncertain, and on this evidence the defendant was sentenced by the court to serve a period of seven years in the state prison. He is a young man, having a family, and as far as the record discloses has always borne a good character. There is no evidence whatever, except the testimony of the prosecuting witness, that the defendant committed the crime charged. On the other side, the evidence is most convincing that he did not, at least, taking the testimony as a whole, it is so uncertain as to raise a reasonable doubt. Okla. St. 1893, § 5201, 22 Okla. St. Ann. § 836; Ratzky v. People, 29 N. Y. 124. And such a severe sentence should not be permitted to stand on such weak evidence.”

The evidence in this case is not only very conflicting, but also shows that the prosecuting witness had been found by a jury in the county court of Payne county to be insane. This verdict was set aside, but the record does not disclose for what reason. The motion to set it aside raises several jurisdictional grounds, and it is not shown by the record why it was set aside. But the evidence of many citizens from the community where the prosecuting witness resided revealed that he was a high strung, quarrelsome and highly excitable man, and several swore to his bad reputation as an officer, and the evidence of his actions on the night of the difficulty with defendant easily bears this out. The defendant’s conduct is not to be commended. The evidence shows that he had been drinking beer at the time it was attempted to arrest him, but no one testified that he was drunk. The party with whom he had the controversy at the.restaurant was a stranger, and no doubt left immediately, and was not present at the trial, and no one knew his name. Even if the prosecuting witness had the right to arrest the defendant, there was very little use of placing him in jail if he was not drunk. He lived in the community and was well known. No doubt he could have easily posted a bond for his appearance. He could have only been charged with a misdemeanor. But the evidence reveals that the prosecuting witness had placed him in jail before, and that no charge had been filed against him, and the evidence justifies the belief that the actions of the marshal were not such as a careful, cool officer would have taken under similar circumstances. However, the action of the defendant in cutting the prosecuting witness is not to be condoned. Under the evidence the officer probably had the right to arrest him for a crime committed in his presence, and he should have submitted to that arrest in a peaceable manner. It is not for this court to pass upon the conflict in the evidence, and if the state had proved all that was required under the statute as above quoted, this judgment would not be reversed, but would be modified.

In the case of Blevins v. State, 11 Okla. Cr. 563, 149 P. 925, 926, which was a case very much like the case at bar, the court said:

“Cases of this character should ordinarily be prosecuted under section 2344, R.L. 1910” (now Oklahoma Statutes 1931, sec. 1870, 21 Okla. St. Ann. § 645). Russell v. State, 9 Okla. Cr. 692, 133 P. 475.

In the case of Clemons v. State, 8 Okla. Cr. 452, 128 P. 739, 741, the facts were very similar to the facts in this case. The court said:

“Dr. Hill and Dr. Pague testified that in their opinion death would likely have resulted from the wound if they had not treated it. * * *
“Without entering upon an analysis of the testimony, it is sufficient to say that there was no testimony offered to show that the knife used in making the assault was a deadly weapon, except the manner and probable effect of its use.”

The court further said:

“An ordinary penknife is not necessarily a deadly weapon. Brown v. State, 3 Okla. Cr. 42, 104 P. 78. A deadly weapon is one likely to produce death or great bodily harm by the use made of it, but a weapon capable of producing death is not necessarily a weapon likely to produce death. In many cases the court may declare as a matter of law that the particular weapon was or was not a deadly weapon, but where the weapon used may be a deadly weapon or not, according to the manner in which it was used or the part of the body struck, the question must be submitted to the jury. To convict of the highest degree of the offense charged in this information, it was necessary to show that the assault and battery was committed by means of a deadly weapon, and not by means of any sharp or dangerous weapon as prescribed by section 2337 [Comp. Laws 1909], 21 Okla. St. Ann. § 645. * * *
“While this court under section 6955, 22 Okla. St. Ann. § 1066, is given the power in a proper case, if necessary in the furtherance of justice, to modify a judgment so as to prevent the imposition of punishment which the evidence will not warrant (Fritz v. State, 8 Okla. Cr. [342], 128 P. 170), we do not think that that power should be exercised in this case.
“The verdict is very vague, and is too uncertain to support a judgment for the highest degree of the offense charged. Neither is it responsive to the issue under the proof which was not of assault by a deadly weapon, but an assault and battery by means and force likely to produce death with intent to kill.” Brown v. State, 3 Okla. Cr. 42, 104 P. 78.

In the instant case there was not a line of proof as to the kind or character of the knife used by the defendant. No witness testified that he even saw a knife, and it was at no time introduced in evidence, nor was there any testimony that it was a deadly weapon. The prosecuting witness’ only testimony was that he knocked the knife from defendant’s hand when he struck him with his “billy.”

The testimony of Dr. Buchannon as to the wounds upon the prosecuting witness was:

“A. On the left arm, forearm, there was a wound approximately eight inches in length, beginning about four inches above the inner condyle of the humerus, extending downward and outward from the radial forearm. Q. Will you just show the jury where that would be? A. Beginning approximately at this point, extending downward and outward from the radial forearm. In this wound there was three of the veins of the arm and forearm severed. I don’t suppose you want the name of those veins, do you? Q. No. Approximately how deep was that cut, doctor? A. Well, it was varied. On the upper portion of the cut it was through the skin, the subcutaneous tissue. As it progressed downward it became deeper, severing one of the radial muscles of the arm. That would at that angle be approximately an inch and a half in depth. Q. Go ahead as to the other wounds. A. There was a wound approximately one and a half inches in the mid-line of the upper sternal natch — upper part of the sternal; a wound in the right leg approximately three inches in length. One blood vessel was severed, and there was one small wound in the upper part of the left arm.”

The only testimony of Dr. Buchannon with reference to the seriousness of the wounds was:

“Q. From your observation as a physician and from your treatment of that particular case, what have you to say as to those wounds in regard to their being of a serious nature? By Mr. Fisher: If the court please, I think that is a matter for the jury to consider. By the Court: Overruled. By Mr. Fisher: Exceptions. A. Well, I would consider them as serious wounds in regards to complications from hemorrhage and infection.”

With reference to the “billy” used by the prosecuting witness, the doctor testified:

“Q. Doctor, is that such a weapon in the hands of any man that it might be used as a deadly or dangerous weapon? By Mr. Crow: We object to that. By the Court: Overruled. By Mr. Crow: Exceptions. A. Yes.”

After the verdict in this case was rendered, and the motion for a new trial was presented, a motion was presented to the trial court asking for a suspended sentence. This was in accordance with the law enacted by the Legislature in 1937. Session Laws, 1937, article 2, ch. 17, p. 20, 22 Okla. St. Ann., § 991. At the hearing, the testimony of many witnesses was given as to the good character and habits of defendant, and a petition signed by one hundred fifty residents of Blaine county, many of whom were officers and former officers and prominent citizens of that community was filed. This petition was overruled by the trial court. This was within his discretion, and this court would not attempt to interfere with that discretion. Under ordinary circumstances, we would feel that in a case of this character it would be best to lower the punishment assessed and modify the judgment, but under the circumstances presented in this case, we are of the opinion that it is best that the case be reversed and sent back to Blaine county. If the county attorney is of the opinion that it should be retried, he can do so, and a jury of that county may pass upon the merits thereof.

If defendant is retried, it would be well for the county attorney, if he deems advisable, to file an amended information as suggested in the case of Blevins v. State, supra, charging defendant under Oklahoma Statutes 1931, sec. 1870, 21 Okla. St. Ann., § 645, and the court should also charge the jury upon assault and battery, as an included offense, as was done in the instant case.

Having decided that this should be done, we will say, that if a new trial is had, the bloody clothes worn by the prosecuting witness should not be permitted to be introduced. They threw no light upon the facts, and could only have the effect of causing passion and prejudice to arise in the minds of the jury. There was no question as to the location of the wounds as was shown by the testimony of Doctor Buchannon.

There is also doubt as to the admission of the evidence of the former arrest of defendant by the prosecuting witness, and the testimony as to the finding of liquor on or near his person. This evidence no doubt was a strong factor with the jury in giving him the length of sentence that was assessed.

For the reasons above stated, the judgment of the district court of Blaine county is reversed and remanded.

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


text:
    Ex parte JACK NEWMAN.
    No. A-9728.
    Oct. 3, 1939.
    (94 P. 2d 556.)

      Jack Newman, in person.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State and respondent.
   DOYLE, P. J.

Jack Newman filed in this court by mail his petition for writ of habeas corpus, directed to Jess F. Dunn, warden of the state penitentiary, wherein it is averred he is unlawfully held and illegally imprisoned by respondent, warden of the state penitentiary, under a commitment issued upon an unlawful judgment and sentence of the district court of Caddo county.

It is averred, as showing illegality of said imprisonment, that petitioner was convicted in said district court on information charging him, with the use of firearms, of having robbed the Gracemont State Bank, alleged to have been committed on or about February 21, 1924; that at this time and prior thereto the penalty provided for the said crime was that any person, or persons, convicted of said crime shall suffer punishment by death or by imprisonment in the state penitentiary for a period of time not less than 25 years (sec. 1, ch. 85, Session Laws 1923, 21 Okla. St. Ann. § 801 note, defining robbery, and fixing penalty therefor); that thereafter, after the crime was committed, for which petitioner was charged, tried and convicted, said act was amended by act approved April 7, 1925, 21 Okla. St. Ann. § 801, wherein it was provided that any person, or persons convicted of the crime of robbery with the use of firearms, “upon conviction therefor, shall suffer punishment by death, or imprisonment at hard labor, in the state penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

It is further averred:

“That during the procedure of the trial, the court, Will Linn, district judge of Caddo county, instructed the jury on the new and ex post facto law, which had been enacted by the state Legislature after the crime had been committed, and further instructed the jury to the effect that in case they found him guilty they could assess his punishment at imprisonment in the state penitentiary for five years, nor more than death in the electric chair, when as a matter of fact and law he had no jurisdiction or power to give such an instruction to the jury, and had no power, authority and jurisdiction to sentence him for any period of time other than that provided in the law and the statutes at the time the crime was alleged to have been committed.”

A rule to show cause issued directed to said warden and made returnable September 28, 1939.

The Attorney General filed a response to said petition as follows:

“Comes now the respondent herein, and for answer to the petition of said Jack Newman, admits that he is holding the said Jack Newman in custody pursuant to commitment to serve the sentence imposed upon him by the district court of Caddo county, Okla., and that such term of imprisonment has not yet expired.
“Respondent would call attention of the court to the fact that petitioner appealed from such conviction to the Criminal Court of Appeals and that in said appeal the specific issue and question relied upon in the petition now filed herein was passed upon and decided adversely to the contentions of petitioner; said appeal being that of Henry Cornett, Jack Newman et al. v. State, 40 Okla. Cr. 172, 267 P. 869.”

In the foregoing case the court held:

“Where the court in its instructions submits to the jury a smaller penalty for the offense than that prescribed by law, but of the same kind, and where the defendant does not call the attention of the court to, nor except to, the error in defining the punishment, and a smaller penalty is assessed by the jury, the error being beneficial to defendant, the defendant, upon appeal, will not be heard to complain that such instruction is prejudicial. The error in such case is not reversible.”

This court will also take judicial notice that said petitioner, Jack Newman, was convicted in the district court of Kay county on a charge of robbery of the Uncas State Bank, with firearms, and his punishment fixed at confinement in the state penitentiary for a term of 25 years; which judgment was affirmed August 17, 1929. Jack Newman v. State, 44 Okla. Cr. 137, 279 P. 980.

It is well settled that where petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment, and the judgment is void, and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial, or in the proceedings preliminary thereto. Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

It follows that the writ should be denied, and the cause dismissed. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.