text:
    HUBERT LINK v. STATE. Ex parte HUBERT LINK.
    No. A-5171.
    Opinion Filed June 14, 1924.
    (226 Pac. 882.)
    (Syllabus.)
    1. Judgment and Sentence — Judgment to be in Pursuance of Verdict. In a criminal action the judgment of the court must be in pursuance of the verdict of the jury.

      2. Same — Judgment of Conjoint Robbery on Verdict of Larceny of Automobile Void. In a prosecution for the larceny of an automobile the jury returned a verdict finding the defendant guilty as charged in the information. The judgment rendered on the verdict was that the defendant was guilty of the crime of conjoint robbery. Held, that the judgment and sentence so rendered is void.
    3. Larceny — Evidence not Sustaining Conviction of Larceny of Automobile. The evidence in this case considered, and held insufficient to sustain the verdict of the jury.
    Appeal from District Court, Delaware County; A. C. Brewster, Judge.
    Hubert Link was convicted of stealing an automobile, and he appeals.
    Beversed.
    E. H. Beauchamp, for plaintiff in error.
    ' The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Hubert Link, was tried in the district court of Delaware county upon an information charging him and one Fred Hays with unlawfully and felon-iously stealing a Dodge roadster automobile, 1923. model, the personal property of O. F. Walker. He was found guilty by the jury, and his punishment fixed at imprisonment .for a term of five years. To reverse the judgment rendered upon such' conviction, November 24, 1923, he appealed'by filing in this court on May 15, 1924, a petition in error with case-made.

The errors assigned relate to rulings of the court in the admission and exclusion of evidence and the sufficiency of the evidence taken as a whole to sustain the verdict. May 30th plaintiff in error filed in this court an application for a writ of habeas corpus, alleging that he is unlawfully imprisoned by the warden of the penitentiary under a commitment issued out of the district court of Delaware county, upon a judgment of conviction for the crime of conjoint robbery, and alleging that he was never tried for conjoint robbery, but was tried under a charge of stealing an automobile and was convicted as shown by the case-made on his appeal, being case No. A-5171, now pending in the Criminal Court of Appeals.

The Attorney General has filed the following confession of error:

"After a careful examination of the record in case No. 5171, Link v. State, we find that the plaintiff in error was tried upon an information charging him with stealing an automobile, being minutely described by name and number both engine and serial, and by license tag number; that the verdict of the jury was of finding the defendant guilty as charged in the information, but that the court failed to sentence plaintiff in error upon the verdict rendered and rendered his judgment and sentence finding the plaintiff in error guilty of conjoint robbery and sentencing him to the penitentiary for a term of five years.
"There having been no judgment and sentence pronounced in accordance with the verdict of the jury there is nothing left for us to do except to ask this court to remand this case to the trial court with directions to enter a judgment and sentence in accordance with the terms and conditions of the verdict rendered.”

The record shows that the judgment of conviction rendered on the verdict was for the crime of conjoint robbery, and for this reason, the Sentence of the lower court must be set aside, and the judgment reversed.

A careful reading of the record convinces us that this defendant should also have a new trial.

The material and undisputed facts in this case as disclosed by the testimony are as follows:

That on the night of the 13th day of July, 1923, the automobile in question was stolen from Dr. C. F. Walker, at Grove, and some time thereafter was found by the sheriff at La Cross, Kan.; having been sold by the defendant, Fred Hays, to Milo Ryersee at McCracken, Kan. It appears that Hubert Link left Bartlesville on the 16th day of July, 1923, and rode in the stolen automobile with Fred Hays to Mc-Cracken, Kan. There Fred Hays disposed of the said automobile, executed a bill of sale for the same and received a Ford car in part payment; that the defendants then proceeded to Colorado, and from there to Corsicana, Tex., thence back to Bartlesville, where they were arrested September 22, 1923.

The state introduced in evidence a bill of sale transferring to the defendant Fred Hays a Ford touring car, dated July 20, 1923, signed Milo Ryersee, and also introduced a bill of sale to Milo Ryersee, reciting that for and in consideration of a Ford car and $250, Fred Hays sells one Dodge roadster to Milo Ryersee, signed by the defendant, Fred Hays, dated, July 20, 1923, with pencil notation on back that $215 is to be paid when additional bill of sale arrives from Bartlesville.

Also letter and envelope postmarked Kansas City, and Tulsa T. 210 August 16 1923. R. P. 0., addressed to Mr. Bert Juvenall, McCracken, Kan. The letter is as follows:

Casper, Wyo., Aug. 3 — 23.
“Mr. Bert Juvenall — Dear Friend: I will write you a few lines. Bert I had .hard luck. I never got to see Joe Smith to get that bill of sale. Will you see that boy I traded with and send the money to my wife. She needs it worse than I do. I am working in the oil field out here at Casper, but take out for your trouble. From Fred Hays.
“Mrs. Fred Hays, 12 É. 4th St.,
“Bartlesville, Okla.”

The state also introduced- a statement subscribed and sworn to by Hubert Link, September 22, 1923, in substance as -follows: About the 15th or 16th of July Fred Hays was working in a barber shop at Bartlesville and cut my hair and shaved me; he told me that he bought a Dodge roadster from Joe Smith for $400; wanted me to go to Great Bend, Kan., with him; that was on Saturday, and we started Sunday morning. He traded the car at McCracken, Kan., to a fellow named Milo, or something like that, for a Ford and some money; I did not see him get the money; and we went from there to Denver and worked near there in harvest and then came down to Burbank and worked there; then went down to Corsicana, Tex., and worked putting up tanks; there Fred Hays received a letter from his wife saying that the law was looking for us, and we came back to Bartlesville in the Ford car; I went home and stayed all night, and the next morning they arrested me; my wife and three children were living in Bartlesville.

J. H. Hendricks testified:

"I am desk sergeant at the police station at Bartlesville; after the defendants were arrested I turned them over to the authorities of Jay, and after the preliminary hearing of this defendant in Delaware county, I turned the Ford car that had a Colorado license tag to Mr. Ryersee and Mr. Juvenall of McCracken, Kan.”

He was then asked:

“Q. Do you know whether or not Fred Hays has been convicted any time pertaining to the. Dr. Walker car?”

Over the defendant’s objections he answered:

“Yes, sir; he was convicted here at Jay yesterday.”

Dr. C. F. Walker testified:

“I had information that the sheriff of Rush county at La Cross, Kan., was holding a Dodge roadster that had Mr. L. F. Mayfield’s license tag on it; Mr. Mayfield lived in the northern part of Grove. Roy Frazier, uncle of Hubert Link, lives about a quarter of a mile from Mr. Mayfield; I sent E. D. Hammond and Mack Long to get the car; when these men came home I had information that Fred Hays had sold my ear at McCracken, Kan., and that there was another man with him, then I offered a reward for the arrest and conviction of Fred Hays.”

Against the defendant’s objections he further testified:

“I had information that this Ryersee car when it got to Bartlesville it had a Colorado license tag on it, and that this tag belonged to R. G. Swain, of Seibert, Colo.; I had information from R. G. Swain that his tag was stolen there late in July.
“The Court: This statement, gentlemen of the jury, of the witness, the last part of it is not competent; you should not consider it.
“ Ryersee’s car had a Kansas tag on it when it left Mc-Cracken; I saw Ryersee’s receipt for his tag from the highway department of Kansas. I had a conversation with Hubert Link just before he made his statement; he looked at my car and said it was the ear that he and Fred Hays went from Bartlesville to McCracken, Kan., in; I heard the statement of Fred Hays on the witness stand yesterday when he testified about when and where he picked up Hubert Link. He said he left Bartlesville about 10 or 11 o ’clock Sunday morning and just saw Link on the street and asked him to go with him, and he said they drove to Pawhuska, and from there to Ponca City and stayed that night at Hutchinson, Kan.”

E. D. Hammon testified:

“I am cashier of the First National Bank of Grove, and with Mr. Long went to McCracken, Kan.; we found Mr. Juvenall, and he told us that Mr. Hays had driven the Dodge roadster to his house; we learned from other conversations with Mr. Juvenall and also from certain papers in the custody of the Bank of McCracken which were introduced here in the trial of Fred Hays yesterday that Hays had traded Dr. Walker’s car to Mr. Ryersee, which papers are again offered in evidence.”

J. C. Ferree testified:

“I live one block from Dr. Walker; on the night his car was stolen I was in bed by the window and saw two men roll the car down the street to the crossing; then they got in and started off north with the car; I know Fred Hays and Hubert Link, but I had not seen Hubert Link lately in this county. ’ ’

L. F. Mayfield testified:

"I live half a mile north of Grove; I had two license tags which were found on Dr. Walker’s car; my two boys and one or two other boys drive my car a great deal; when Dr. Walker’s car was stolen, one of my sons was in Tulsa and the other was working on the 101 Ranch.”

Bill Freeman testified:

“I keep the toll bridge four miles west of Grove, on the Grand river; on the evening of July 13, 1923, a footman crossed the bridge; he had on a pair of automobile goggles and his cap pulled down over them, and he turned his head from me when he paid the toll; as he went on there was a car coming over the hill from the east, and he jumped over the fence and went into, the corn field out of sight. I saw that man yesterday in the courtroom, and according to my best judgment the man was Fred Hays.”

The state rested, and the defendant demurred to the evidence on the ground that the same is insufficient to warrant a conviction, and asked the court to advise the jury to acquit the defendant. The demurrer was overruled and the request denied. Exception reserved. The defendant did not testify.

We think the court erred in admitting the testimony that codefendant Hays had been convicted the day before. It was also error to admit testimony as to what codefendent Hays testified to as a witness in his own trial.

The other testimony objected to was hearsay testimony, and, although a part of it was subsequently stricken out, there was error in admitting it. It had a tendency to injuriously affect the rights of the defendant. We think this incompetent testimony may have influenced the jury to the extent of depriving the defendant of a fair trial.

It is also urged that the evidence is insufficient to support the verdict. The above statement is a complete synopsis of the testimony which tended to incriminate this defendant, and, while some of it tends to justification of suspicion of his complicity, we do not think there was sufficient evidence to remove every reasonable doubt upon that point. There was no proof that this defendant had been in Delaware county about the time the car was stolen, and there was no evidence of facts and circumstances beyond the statement made by this defendant which was introduced in evidence. In effect the testimony of the state strongly corroborated the theory of the defense that he did not knowingly participate in the commission of the offense charged.

For the reasons stated yre are of the opinion that the verdict was without the support of sufficient evidence to sustain it. The judgment is therefore reversed and a new trial granted.

The warden of the penitentiary will deliver the prisoner, Hubert Link, to the sheriff of Delaware county to be held in custody by him until discharged therefrom according to law.

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


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    CARL THOMAS v. STATE.
    No. A-4347.
    Opinion Filed June 14, 1924.
    (226 Pac. 600.)
    (Syllabus.)
    1. Intoxicating Liquors — Distance of Unlawful Transportation Immaterial — not Necessary that Ultimate Destination be Fixed Point. Where the accused is charged with the illegal transportation of intoxicating liquor from one place to another, where it is apparent that the removal was made to facilitate the barter or sale of the liquor, the distance over which it was carried or moved is immaterial.
    (a) It is not necessary that the ultimate destination shall be a fixed point.
    2. Evidence — Intoxicating Liquor Obtained by Unlawful Search Inadmissible. Intoxicating liquor obtained from the home of the accused by means of an illegal search and seizure may not be used as evidence over the timely objection of the accused.
    3. Appeal and Error — Reversible Error-Comment of Attorney in Argument Outside Record. It may be reversibe error for a county attorney in his argument to the jury to comment on assumed facts not in evidence.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Carl Thomas was convicted of the illegal transportation of whisky, and he appeals.
    Modified and affirmed.
    Monk & MeSherry, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Appellant was convicted of the illegal transportation of intoxicating liquor, and by verdict of the jury his punishment was fixed at a fine of $300 and confinement in jail for a period of four. months. From the judgment on this verdict he appeals.

The proof shows that just after dark certain peace officers saw several men in an automobile drive up to the residence of the appellant, herein referred to as the defendant, and saw him enter his home while the other men remained in the car. These peace officers secreted themselves behind a hedge and saw the defendant come out of his home and go towards the waiting automobile, carrying a bottle. The defendant, when accosted by the officers, threw the bottle againt the front wheel of the car, breaking the bottle. As he did so he said, “You fellows haven’t got anything on me.” The officers recovered one of the fragments of the bottle containing corn whisky. The car to which defendant was carrying the whisky was standing in the street, close to the property line. Defendant was immediately arrested and placed in jail, and the arresting officers then returned and searched the home of the defendant without a search warrant, and found and seized two more bottles of whisky.

Defendant claims that. these facts do not constitute an illegal transportation of intoxicating liquor, within the meaning of the statutes. In support of this claim he cites the case of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, in which this court held that the removal of intoxicating liquor from one room to another on the same premises was not an illegal transportation, within the meaning of the statute.

The facts in the De Graff Case and this case are so dissimilar that the holding of the court in the former cannot be considered as a guide for this ease. One may be in lawful possession of intoxicating liquor, for the purpose of personal home consumption. The purpose of all the features of the prohibitory liquor laws is to prevent and discourage the illegal sale, transportation, and distribution of intoxicating liquor. The facts in this case indicate that the defendant was about to make a sale of corn whisky to the men in the car, or to give it to them, or to join them in a bibulous joy ride on the public highway. The purpose in any event was to do something which the law prohibits. One of the restraints imposed by law is that liquor shall not be transported in such manner as will facilitate an illegal sale or use.

It has been held that the words “transport, transporting, and transportation,” as relates to intoxicating liquor, embrace a movement of the liquor by the accused on his person. 33 Corpus Juris, 582, and eases cited. This includes the carrying on one’s person of whisky procured at some place and carried to the home of the accused. Allen v. State, 159 Ark. 663, 252 S. W. 899. That the ultimate destination shall be a fixed point is not necessary to constitute transportation. Thacker v. Commonwealth, 131 Va. 707, 108 S. E. 559. Carrying liquor from one point on the public highway to another point on the same highway is within the statute. Jentho v. State, 19 Okla. Cr. 434, 200 Pac. 251. Transportation of liquor illegally acquired by a farmer from another who had manufactured the liquor contrary to law on the premises and carried by the farmer to his home • is within the prohibition of the statute. Scaggs v. Commonwealth, 196 Ky. 399, 244 S. W. 799.

Where the removal of intoxicating liquor from one place to another is for an illegal purpose, the space or distance over which it is removed would make no • difference. In this case the automobile . stood in the public highway; the bottle of corn whisky removed or transported was taken from the residence of the accused by him to the automobile, where the container was broken on the front wheel — undoubtedly done for the purpose of preventing the officers from seizing the liquor, and to destroy the evidence. This we think constituted an illegal transportation within the meaning of our statute.

The defendant attacked the sufficiency of the information. We think the information sufficiently apprised the accused of the nature of the charge, so that more specific pleading would have availed him nothing.

Defendant says, and the record shows, that the arresting officers, after placing defendant in jail, returned to his residence, and without a search warrant searched the house, finding there more corn whisky. This was introduced in evidence at the trial, over the timely objection of the defendant. This was error, under the holdings of this court in Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, and cases following. The evidence so improperly introduced may have led the jury to believe that the defendant was a bootlegger and that his residence was his “plant” and place of distribution. This may indeed have been true, but the evidence was improperly admitted, and probably caused the jury to assess the severe penalty they imposed. -

A search warrant could easily have been procured, and under its authority this evidence could have been legally obtained and introduced. Officers must not themselves violate the constitutional or statutory law in order to convict another law violator charged with a misdemeanor.

Defendant further urges that this cause should be reversed on account of prejudicial remarks made by the county attorney in the closing argument to the jury.

The record shows that the county attorney and his assistant, in i.heir addresses to the jury, alluded to the defendant as the “king bee” bootlegger; made frequent references to the evidence procured by the illegal search and seizure (the corn whisky taken from defendant’s residence) and to defendant’s selling of whisky; and appealed to the jury repeatedly to assess the maximum penalty,' because the evidence showed that he was a professional bootlegger.

Upon this state of the record it becomes incumbent upon this court either to reverse this cause on account of the prejudicial argument and remarks of the prosecuting attorney and his assistant, and on account of the erroneous reception of evidence illegally obtained by the unauthorized search and seizure, or to modify the judgment so as to impose the minimum punishment provided by the statute. Notwithstanding the prejudicial remarks in the arguments to the jury, and notwithstanding the erroneous reception in evidence of the whisky taken from the residence of the accused, the evidence is clear that defendant did illegally transport whisky, and that he was guilty as charged; but the jury might, in the absence of this illegal evidence, and in the absence of the prejudicial arguments of counsel relating thereto, have assessed only the minimum punishment.

The judgment of the trial court is therefore modified to to a fine of $50 and 30 days in jail, and as so modified is affirmed.

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


author: MATSON, P. J.

text:
    HERBERT HOWARD v. STATE.
    No. A-5059.
    Opinion Filed June 14, 1924.
    (226 Pac. 602.)
    (Syllabus.)
    Appeal and Error — Where on Motion Pending Appeal, New Trial for Newly Discovered Evidence Granted, Appeal Dismissed as Moot. Where, pending appeal from a judgment of conviction in a criminal case, the trial court, at a time not later than the next term of court after judgment is rendered, grants the defendant a new trial on the ground. of newly discovered evidence on a motion pending and undetermined at the time the appeal is filed herein, the questions involved in the appeal become moot, and the appeal will be dismissed.
    Appeal from District Court, Ottawa County; J. J. Smith, Judge.

      Herbert Howard was convicted of highway robbery and he appeals.
    Appeal dismissed..
    John L. Crank, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

On the 12th day of January, 1924, the county attorney of Ottawa county filed in the district court of said county an information charging Herbert Howard with the crime of robbery, alleged to have been committed in said county on the-day of June, 1923, by making an assault upon one Boy Smith with a certain deadly weapon, to wit, a revolver, and then and thereby putting the said Boy Smith in fear of immediate injury to his life and person, etc., and by the use of said force and putting in fear, taking, stealing, and carrying away, against the will of the said Boy Smith, from the possession and person of him the said Boy Smith, certain personal property, etc. On the 19th day of January, 1924, the defendant was present in open court in person, and J. L. Crank was appointed as attorney to defend him, and the defendant entered a plea of not guilty to the charge.

Thereafter, on the 22d day of January, 1924, the cause came regularly on for trial, and the jury was impaneled and sworn, the evidence both for-._the state and the defendant heard, the jury instructed as to the law of the case, and a verdict returned, finding the defendant guilty and requesting the court to assess the* punishment. Thereafter the court on the 28th day of January, 1924, after hearing and overruling a motion for new trial, rendered judgment against the defendant, assessing punishment at imprisonment in the State Beformatory at Granite for a period of 25 years. Proper exceptions were reserved to.the action of the trial court in overruling the motion for a new trial and in rendering judgment, and an appeal prayed to this court, which was allowed, and a case-made ordered to be transcribed at the expense of Ottawa county.

On March 10, 1924, on application of plaintiff in error, the petition in error and case-made were ordered filed in this court without cost to plaintiff in error, upon a sufficient showing that plaintiff in error was a poor person and unable to pay the cost of this appeal. Since the perfecting of this appeal, it has been made to appear to this court by a proper showing that on the 15th day of May, 1924, upon motion of the defendant for a new trial upon the ground of newly discovered evidence, pending and undetermined at the time the appeal was filed herein, the trial court sustained said motion and set aside the verdict and judgment so appealed from, and granted the defendant a new trial under authority granted to the trial court by the seventh subdivision of section 2754 and section 2755, Compiled Statutes 1921, permitting motions for a new trial on the ground of newly discovered evidence to be made after judgment, but not later than the next term of court after judgment is rendered.

The judgment from which this appeal was taken having been set aside and held for naught, it follows that the appeal must be dismissed. The appeal, therefore, is accordingly dismissed, and the cause remanded to the trial court.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    FRED FOSTER v. STATE.
    No. A-5150.
    Opinion Filed June 16, 1924.
    (226 Pac. 602.)
    (Syllabus.)
    1. Searches and Seizures — Affidavit Made on Information and Belief — Invalidity of Warrant. An affidavit for a search warrant is insufficient if made on information and belief without stating the facts on which the belief of the affiant is based, and a search warrant issued on such an affidavit is void.
    2. Intoxicating Liquors — Warrant to Search Private Residence Unauthorized Except in Cases Specified in Statute. Under the statute (section 7013, Comp. St. 1921) no officer is authorized to search a private residence occupied as such, unless it or some part of it is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort, and no magistrate in this state has the power to issue a search warrant to search a private residence unless it is made to appear that such private residence comes within the exceptions stated in said .section.
    3. Evidence — Intoxicating Liquor Obtained by Unlawful Search Inadmissible. Liquor obtained by a search of defendant’s residence, under a search warrant issued without authority of law for the sole purpose of obtaining evidence against him, in violation of the Bill of Rights, § 30, guaranteeing the security of the people in their right to be exempt in their persons, house, papers, and effects from unreasonable search and seizure, is inadmissible against him.
    Appeal from County Court, Beaver County; J. D. Meese, Judge.
    Fred Foster was convicted of unlawful possession of intoxicating liquor, and lie appeals.
    Reversed.
    D. W. Buckner and Loofbourrow & Loofbourrow, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Fred Foster did have in his possession 16 quarts of whisky with the unlawful intent to sell the same. Upon his trial he was found guilty by the jury, but they were unable to agree upon the punishment. March 6, 1924, he was by the judgment of the court sentenced to be confined in the county jail for 60 days and to pay a fine of $300. He has been permitted to prosecute his appeal from the judgment as a poor person, but he was fortunate enough to secure the assistance of counsel who have presented his case in an excellent brief. Unable to give bond defendant is now confined in the county jail in execution of said sentence.

The first error assigned for reversal of this judgment is the admission of evidence procured under a search warrant that is said to be illegal because of the affidavit on which it was issued. The affidavit states:

“That J. 0. Karnes, being duly sworn, deposes and says, that he has good reasons to believe, and does believe, that a still for the manufacture of intoxicating liquors or mash for the purpose of making intoxicating liquors or substitutes for the same are being manufactured, sold,-bartered, given away and otherwise furnished, are being kept and possessed and used in violation of the prohibitory laws of the state of Oklahoma, at the following place, to wit: Sections 26 and 27, Twp. 3 N., range 27 E. C. M., Beaver County, Okla. — now owned and occupied by Fred Foster and John Doe. That as reasons for such belief affiant, states the following: Information furnished by sheriff.”

On this affidavit J. D. Meese, judge of the county court, issued the search warrant in question.

The evidence shows that H. D. Bridgewater, sheriff, and J. 0. Karnes, undersheriff, who made the affidavit upon which the search warrant issued, went to the farm of the defendant, searched his house, and found about 4 gallons of whisky, a quart in the kitchen and 15 quarts in the cellar;

Prior to the commencement of the trial the defendant filed a motion to suppress the introduction in evidence of the whisky so seized, which he alleged to have been obtained by an illegal search and seizure, in that the same was. obtained under a .purported search warrant that is. void, because the affidavit on which it was issued is made upon information and belief, and does not set forth-facts tending to show probable cause, and that said liquor was unlawfully and illegally seized, in that it was taken from defendant’s private residence, occupied as such, and said affidavit does not state that said residence is used as a store, shop, hotel, boarding house, or place for storage, or that such residence is a place of public resort as required by the statute, section 7013, Comp. Stats. 1921, which motion was overruled and exceptions reserved.

It appears that when the whisky seized was offered in evidence the defendant objected on the ground that it had been seized under a void search warrant, and for that reason moved the court to withdraw from the consideration of the jury the testimony of the officers and the evidence' so obtained. The objection was overruled and the motion denied. Exception reserved.

It is urged that the affidavit is insufficient in that it fails to show probable cause supported by oath or affirmation, required by section 30, art. 2, of our Constitution, and is in violation of section 7013, Comp. Stats. 1921.

In the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, it is held:

“A search warrant must not be issued except upon a showing of probable cause, supported by oath or affirmation, which must set forth the facts tending to establish probable cause.”

In Russell v. State, 25 Okla. Cr. 423, 221 Pac. 113, it was held that:

“Liquor obtained by a search of defendant’s premises under a search warrant issued without authority of law, for the sole purpose of obtaining evidence against him, in violation of Bill of Rights, §- 30, guaranteeing the security of the people, in their right to be exempt in their persons, houses, papers, and effects from unreasonble search and seizure, is inadmissible against him.

In Duncan v. State, 11 Okla. Or. 217, 144 Pac. 629, it was held that under the statute (section 7013, Comp. Stats. 1921) no officer is authorized to search a private residence occupied as such or any portion thereof unless it or some part of it was used as a store, shop, hotel, boarding house, or place of storage, or unless sueh residence is a place of public resort, and that no magistrate in this state has the power to issue a search warrant to search a private residence occupied as such, unless it is made elearly to appear that such private residence comes within the exceptions stated in said section.

It follows that the search and seizure shown in this case was an invasion of the constitutional rights of the defendant and that the evidence complained of was improperly admitted.

The judgment of the trial court is therefore reversed.

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


text:
    E. W. TURNER v. STATE.
    No. A-4400.
    Opinion Filed June 17, 1924.
    (226 Pac. 1064.)
    (Syllabus.)
    1. Trial — Verdict Leaving to Court Fixing of Punishment Held to Indicate Only that Jury Were Unable to Agree Thereon. Where the court had instructed the jury, advising the jury of the maximum and minimum punishments for violating the prohibitory liquor laws, to the effect that the punishment should be a fine in some amount together with imprisonment for a designated period, the verdict of guilty, qualified by the expression, “and leave the matter with the court to assess the fine," simply indicated that the jury were unable to agree upon, the punishment. ' •

      2. Trial — Jury Should Be Requested to Modify Verdict Improper in Form. The verdict' was irregular in form, and the jury should have been requested to., modify its verdict in proper form.
    3. Same — Verdict—Mere Irregularity in Form — Reduction of Penalty on Appeal. Where a verdict of guilty is clear, a mere irregularity in form will not vacate the verdict, but may be considered by this court as operating to reduce the penalty to the minimum prescribed by statute.
    Appeal from County Court, Alfalfa County; W. E. Wiles, Judge.
    E. W. Turner was convicted of the illegal sale of intoxicating liquor, and he appeals.
    Modified and affirmed.
    Hill & Kirkendall, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

E. W. Turner, plaintiff in error, defendant below, was convicted for the alleged sale of an indefinite quantity of blackberry wine to one Floyd Batson. Turner had previously had Batson prosecuted for breaking into Turner’s house. While Batson was in jail on that charge, he lodged in the county court a complaint against Turner for selling him this wine.

Batson, the only witness for the state, says that in his judgment the wine had a 60 per cent, alcoholic content; three witnesses for the defendant claimed that it was sweet wine and without intoxicating properties. Defendant says he purchased it believing it was old wine, and that when he discovered that it had no “kick” he gave it away to the other witnesses. The jury, as indicated by their verdict, did not believe the defendant nor his witnesses.

The defendant claims that the judgment should be reversed because it does not conform to the verdict, which was as follows:

“We, the jury duly impaneled and sworn in the above-entitled action, 'do upon our oaths find the defendant guilty as charged, and leave the matter with the court to assess the fine.”

It will be noted that the verdict recited that the defendant was guilty as charged; defendant says that the jury by the expression “and leave the matter with the court to assess the fine,” indicated that it was their intention that a fine without imprisonment should be assessed. This could scarcely be true, because the court had previously instructed the jury, informing them of the maximum and minimum punishments prescribed by law, in which both a fine and imprisonment were named. The expression quoted simply meant that the jury were unable to agree upon the punishment. However, the verdict was in bad form (by a strained construction it might be deemed ambiguous), and it should have been reformed by the jury when the defendant objected to its reception on the ground of informality. Section 2743, Comp. Stat. 1921.

The jury in positive terms found the defendant guilty; therefore under the law he should at least suffer the minimum penalty. Under all the circumstances, as shown by this record, it is deemed advisable to modify the judgment of the trial court to confinement in the county jail for a period of 30 days and a fine of $50; it is therefore so ordered, and the judgment as so modified is affirmed.

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


text:
    BERT CAREY v. STATE.
    No. A-4700.
    Opinion Filed June 17, 1924,
    (226 Pac. 1063.)
    (Syllabus.)
    Intoxicating Liquors — Extremo Penalty for Giving Liquor to Minor Excessive. The extreme penalty of imprisonment in a penitentiary for a term of 5 years, and a fine of $2,000 assessed against a young man for the crime of giving liquor to a minor companion under the circumstances here, is excessive.
    (a) For reasons appearing in the opinion, the judgment of the trial court is modified.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Bert Carey was convicted of furnishing intoxicating liquor to a minor, and he appeals.
    Modified and affirmed.
    B. J. Giddings, for plaintiff in error.
    The Attorney General and G. B. Pulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, Bert Carey, was on the 24th day of April, 1923, in the district court of Canadian county, adjudged guilty of furnishing intoxicating liquor (corn whisky) to a minor, a girl under the age of 14 years. The court assessed the maximum punishment, a fine of $2,000 and imprisonment for a term of 5 years. From the judgment so rendered plaintiff in error appeals to this court.

Defendant, Carey, with three other young men and two girls, indulged in a night joy ride in an automobile, in which a pint bottle of corn whisky was passed around, and from which all drank on at least two occasions, with the exception of one of the young ladies named Henderson. The younger girl became intoxicated — “limber drunk,” as one witness expressed it.

From the evidence it appears that the defendant and another of the party, one Rhodes, procured this whisky, and that the two other young men probably aided and abetted in its distribution, including that part consumed by the young girl. From the record and' other authentic sources it appears that Rhodes was separately tried and convicted of selling and disposing of this corn whisky, a misdemeanor, with'his punishment fixed at confinement in jail for a period of 6 months and a fine of, $500. One of the young men, named Laird, was given immunity for testifying against defendant, Carey, and the other, named Green, was shown the same courtesy for testifying in the Rhodes case. The- testimony of the mother of the young girl indicates that the girl was wayward, and that she had previously participated in drinking parties.

To us it seems that several of the participants in the incidents of this night of debauchery were equally culpable and that the penalty assessed in this case is excessive and out of all proportion to that inflicted upon the others participating. Except where there are impelling reasons for doing so, this court will hesitate to modify a judgment of a trial court; but in this instance, if confinement in the reformatory at Granite will indeed work a reformation of the character of the defendant, a shorter period will be better than a long period of years, and therefore for the best interests of the state, as well as for the benefit of the defendant, the punishment should be reduced.

It is therefore ordered that the judgment of the trial court be modified to confinement in the state penitentiary at Granite for a period of two years and a fine of $500, and as so modified the judgment below is affirmed.

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


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    J. W. COOPER v. STATE.
    No. A-4288.
    Opinion Filed June 21, 1924.
    (226 Pac. 1066.)
    (Syllabus.)
    1. Perjury — Information—Unnecessary to State that Affidavit of Surety to Supersedeas Bond was Material. In- an information' charging perjury by making false statements as to property qualifications, as a surety in an affidavit attached to a super-sedeas bond, in a civil action, it was not necessary to state in terms, in the' information, that the affidavit was material; that would have been a mere conclusion. The facts pleaded, under the statutes defining the offense, sufficiently showed the materiality- of the false averments contained in the affidavit.
    (a) Section 889, Comp. St. 1921, provides that any' person willfully making a false affidavit in such undertaking is guilty of perjury, and shall be punished accordingly.
    2. New Trial — Jury—Disqualification of Juror for Alienage not Invalidating Judgment — Failure to Question Juror’s Qualifications Waiver of Objection — Granting New Trial Discretionary. The disqualification of alienage is cause for challenge of a juror propter defectum, on account of personal objection, and if, voluntarily, or through negligence or want of knowledge, such objection fails to be insisted on, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental, as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it.
    (a) It is the duty of the defendant to question the jurors on their voir dire as to their qualifications;- and if he fails to do so, he waives any objections on that point, even though the disqualification is unknown to him until after the rendition of the verdict.
    (b) The granting of a new trial in such case is a matter of discretion.
    Appeal from.District Court, Muskogee County; Benjamin B. "Wheeler, Judge. ^
    J. "W. Cooper was convicted of perjury, and he appeals.
    Affirmed.
    A. L. Harris and T. H. Davidson, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. W.- Cooper, plaintiff in error, in this opinion referred to as the defendant, was by information charged with having, on the 14th day of September, ■ 1917, made a false affidavit before a notary public as to his qualifications as a surety on a supersedeas bond in a civil action then pending in Muskogee county; .that this false affidavit was made knowingly, willfully, and corruptly, for the purpose of deceiving the court clerk, whose duty it was to approve such bond, and that the statements made by the defendant concerning the property listed in said affidavit were false and by him known to be false at the time. The de-' fendant challenged the sufficiency of this information by objecting to the introduction of evidence on the part of the state.

Section 885, Compiled Statutes 1921, provides that a ministerial officer (court clerk), whose duty it is to take surety in any undertaking provided by the code of civil procedure or the statutes, shall require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer, and which shall be indorsed upon or attached to the undertaking. Section 889, Id., provides that any person willfully making a false affidavit in such undertaking is guilty of perjury, and shall be punished accordingly.

The information sets out, at considerable length, all the facts necessary to apprise the defendant of the nature of the accusation. Since it was the duty of the court clerk to require such an affidavit before approving the bond, the making of such affidavit was a necessary and material step in a judicial proceeding, made so by statute; and whether the affidavit was sworn to before the court clerk, or before a notary public, would make no difference. The authorities cited by the defendant in his brief, for the most part relating to nonjudieial proceedings, are not applicable to the situation disclosed by.this record.

It was not necessary to state, in terms, in the information that the affidavit was material; that would have been a mere conclusion. The facts pleaded, under the statutes quoted, sufficiently showed the materiality of the false averments contained in the affidavit.

The defendant next contends that the verdict and judgment based thereon are void because one of the jurors who rendered the verdict was not a qualified elector of the state, and was not a citizen of the United States, but was an alien.

The fact that one of the jurors was an alien was not known to either party until after the conclusion of the trial, and this objection was first urged in the supplemental motion for a new trial, and later in a motion in arrest of judgment. In these proceedings it appeared that one of the jurors, Fred Bennett, had filed his declaration of intention of becoming a citizen of the United States before this trial, but had not taken out his second or final papers, and had not been declared and adjudged a citizen of the United States by the United States court at the time of the trial; and that, at the time of the rendition of judgment, he was a citizen of Great Britain.

A. L. Harris, attorney for the defendant, upon the hearing of the supplemental motion for a new trial, testified as follows, with reference to the interrogating of prospective jurors in this case:

“Q. You say that you didn’t ask the juror Bennett, on your examination of him, where he was born? A. My recollection is that I didn’t ask any question of the jury — that you qualified the jury, and they said they knew nothing about the ease, and I didn’t ask any questions of the jury as a whole, or any particular juror.
“Q. Are you positive of that? A. That is my best recollection.
“Q. In other words, then, you say you declined to ask any questions of the jury? A. I don’t think I asked any questions whatever.
“Q. You had the opportunity to, did you not? . A. I presume so.
“Q. Oh, you had it, did you not? A. Yes.”

The trial court, upon the hearing of this supplemental motion for a new trial, stated that, prior to the trial, and at the same term of court, in commenting upon and reading the statutory requirements of qualifications of jurors he pointed out to the members of the jury, including this juror, they must all be. male citizens, having the qualifications of electors, citizens of the United States, and residents of the state of Oklahoma for a year, and of Muskogee county for a period of six months; that he addressed the jurors as a body by asking-if any one was disqualified, and that none said anything signifying that he was disqualified.

An objection that one of the jurors is an alien should be taken by challenging his competency. It is the duty of the defendant to question the jurors on their voir dire as to their qualifications, and if he fails to do so, he waives any objection on that point, even though the disqualification is unknown to him until after the rendition of the verdict. The granting of a new trial, in such case, is a matter of discretion. 16 Corpus Juris, 1158.

The disqualification of alienage is cause for challenge propter defectum, on account, of personal objection, and if, voluntarily or through negligence or want of knowledge, such objection fails to be insisted upon, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental, as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it. Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432; Chase v. People, 40 Ill. 352; Presbury v. Commonwealth, 9 Dana (Ky.) 203; Commonwealth v. Penrose, 27 Pa. Super. Ct. 101.

A defendant will not be permitted to speculate on the result of a verdict to be rendered by a jury of which some member may be disqualified, and later challenge the verdict if, perchance, it should not be to his liking. The defendant must exercise diligence to ascertain the qualifications of jurors at the time they are examined for that purpose. Queenan v. Territory of Okla., 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324; Id., 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175; Raub v. Carpenter, 187 U. S. 159, 23 Sup. Ct. 72, 47 L. Ed. 119; Papernow v. Standard Oil Co. (D. C.) 228 Fed. 400.

The general rule of inhibiting allowance of a new trial for matter constituting a principal cause of challenge to a juror; existing before the juror was selected and sworn, unknown to the complaining party until after the vcidict, not disclosed on a thorough voir dire examination, and undis-coverable by the exercise of ordinary diligence, unless it appears from the whole case that the complainant suffered injustice by reason of the disqualification, applies to criminal cases. State v. Harris, 69 W. Va. 244, 71 S. E. 609, 50 L. R. A. (N. S.) 933, 973, Ann. Cas. 1913A, 889.

While the decisions are not unanimous on this question, the great weight and trend of modern authorities is as above stated. For a more exhaustive treatment of the authorities, see note on Alien Jurors, 50 L. R. A. (N. S.) 973.

The judgment of the trial court is affirmed.

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


text:
    ROY FURRH et al. v. STATE.
    No. A-4521.
    Opinion Filed June 22, 1924.
    (226 Pac. 1065.)
    (Syllabus.)
    1. ' Indictment and Information — Necessary to Allege Facts Constituting Offense, not Conclusions. An information must allege the facts constituting the offense. It is not sufficient to allege a mere conclusion.

      2. Same — Particular Facts Necessary to Set Forth Statutory Offense with Requisite Certainty. As a general, rule, it is sufficient to charge a statutory offense in the words of the statute, but, when a more particular statement of the facts is necessary to set forth with requisite certainty, they must be alleged. ■
    3. Intoxicating Liquors — Information not Alleging Kind or Method of Manufacture, Demurrable. An information which merely charges that the defendants did “commit the crime of manufacturing intoxicating liquor,” but fails either to allege the kind of intoxicating liquor, or else the mode of manufacture, is not sufficiently definite and certain, and the demurrer thereto should have been sustained.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Roy Furrh and another were convicted of a violation of the prohibitory liquor law, and they appeal.
    Reversed.
    H. A. Stanley, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were tried and convicted and each sentenced to be confined in jail for 90 days and pay a fine of $50 on an information charging that Roy Furrh and R. L. Linderman did in Carter county, the 2d day of August, 1922—

“commit the crime of manufacturing in manner and form as follows, to wit: That they the said Roy Furrh and R. L. Linderman did in the county and state aforesaid, and on the date aforesaid, commit the crime of manufacturing intoxicating liquor with the unlawful intention of bartering, selling, giving away or otherwise disposing of the same, contrary to,” etc.

The defendants interposed a demurrer to the information on the ground that the facts stated do not constitute a public offense. The demurrer was overruled and exception taken.

As a general rule it is sufficient to charge a statutory-offense in the words of the statute, and every fact mentioned in the statute as constituting the offense must be alleged in the information. The general rule is subject to the qualification that, when a more particular statement of facts is necessary to set it forth with requisite certainty, they must be alleged.

The prohibition ordinance prohibits the manufacture of “intoxicating liquor of any kind, including beer, ale and wine.”

The statute (section 7002, Comp. Stats. 1921) provides:

“It shall be unlawful for any person, individual or corporate, to manufacture * * * any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor. ’ ’

The information here does not even follow the words of the statute; it states a mere legal conclusion. It does not allege that the intoxicating liquor alleged to have been manufactured by the defendants was spirituous, vinous, fermented, malt, or any other kind of intoxicating liquor. It merely charges that said defendants did commit the crime of manufacturing, in manner and form as follows: That they the said defendants did “commit the crime of manufacturing intoxicating liquor.” And there is no allegation that the offense named was committed jointly.

The Constitution requires that the accused shall be informed of the nature and cause of the accusation against him. To charge the offense named, with sufficient certainty and definiteness, the nature or kind of intoxicating liquor either should be named or else the mode or manner of manufacture should be alleged. For the reasons stated we are of the opinion that the demurrer to the information should have been sustained. The judgment of the lower court is therefore reversed and the case remanded with direction to sustain the demurrer.

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


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    M. A. BRENNON v. STATE.
    No. A-4447.
    Opinion Filed June 25, 1924.
    (226 Pac. 1062.)
    (Syllahus.)
    Trial — Instruction Placing Burden on Defendant to Establish Innocence and Depriving Him of Benefits of Its Presumption, Erroneous. In this case the court gave the following instruction: “You are further instructed that if you believe from all the facts and circumstances in this case that said defendant did not sell, aid,' abet, or encourage, or was interested in the sale of said corn whisky as charged in the information filed herein, then you should say so by your verdict and • find the defendant not guilty.” Held error because it places the burden of proof on the defendant to establish his innocence, and deprives him of the benefit of the presumption of innocence.
    Appeal from County Court, Texas County; Geo. M. Frittz, Judge.
    M. A. Brennon was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed.
    W. G. Hughes, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case filed in the county court of Texas county March 26, 1921, M. A. Bren-non, R. É. Purcell, and Elba Renfroe were charged with unlawfully selling corn whisky to certain parties whose names are unknown.

It appears that the defendants R. E. Purcell and Elba Renfroe pleaded guilty. Upon appellant’s trial on the'22d day of April, 1922, the jury - returned a verdict finding him guilty and fixing his punishment-at confinement in the county jail for six months and a fine of $500. He has appealed from the judgment rendered on such conviction.

Counsel for appellant contends that the court misdirected the jury to the prejudice of the substantial rights of the defendant by giving the following instruction:

“No. 7. You are further instructed that if you believe from all the facts and circumstances in this case that said defendant did not sell, aid, abet, or encourage or was interested in the sale of said corn whisky as charged in the information filed herein, then .you should say so by your verdict and find the defendant not guilty. Given. .Geo. M. Frittz, County Judge. Excepted to by defendant.”

The Attorney General has filed a confession of error as follows:

“This instruction is not the law, and in addition thereto it is highly prejudicial to the rights of any defendant, and this court has repeatedly held that where such instructions were given the judgment' of the lower court would be reversed.
“We therefore respectfully suggest that this cause be reversed and remanded.”

Our Code provides that—

“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.” Section 2692, Comp. Stats. 1921.

The instruction excepted to is subject to the exception that it requires the jury to believe from the evidence the existence of facts and circumstances which entitle defendant to an acquittal. It virtually requires the jury to believe from the evidence that he is innocent before finding him not guilty.

It is fundamental that a defendant in a criminal action is presumed to be innocent until the contrary is proved, and, in case of reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355; Vaughn v. State, 9 Okla. Cr. 121, 130 Pac. 1100.

We may remark that the information is duplicitous, and that upon the record the court erred in refusing to advise the jury to return a verdict of acquittal because the evidence is insufficient to connect this defendant with the commission of the offense charged.

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

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


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    ONA HUCKELBY v. STATE.
    No. A-4522.
    Opinion Filed June 25, 1924.
    (226 Pac. 1068.)
    (Syllabus.)
    Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, the evidence considered, and held insufficient to sustain conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Ona Huckelby was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    James H. Mathers, for plaintiff in error.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Ona Huekelby did have in his possession 16 gallons of choc beer with the unlawful intention of selling the same. Upon his trial he was found guilty, and his punishment fixed at confinement in the county jail for '30 days and a fine of $50. From the judgment rendered on the verdict, he appeals.

The errors assigned are based on rulings of the court in the admission and exclusion of evidence, requested instructions refused, and the sufficiency of the evidence taken as a whole to sustain the verdict.

Bob Short, deputy sheriff, testified:

"We went to Mr. Huekelby’s house, south of Rexroat. He was away from home. About 40 yards due east we found a keg of choc beer under a tree. There was a lot of brush, then a circle where there was no brush. It was about half a mile from the oil derricks. I went back there three or four times, but did not find him. He came in one day and said that he heard that I had a warrant for him. Rass Coombs was with me when I found it. I tasted it and would call it choc beer; it was pretty sweet. I guess, if a man would drink enough of it, it would make him drunk.’.’

Rass Coombs testified:

"It looked like the keg might have been there a couple days. The beer was just making; I do not know how much of alcohol it contained. It had just began to ferment.”

When the state rested, the defendant demurred to the testimony on the ground that it was insufficient to warrant a conviction, and asked the court to advise the jury to return a verdict of acquittal. Which motion was overruled and request denied.

The testimony of the defendant in his own behalf is as follows:

“I live four miles northeast of Wilson, and work on the farm and in the oil fields. I did not own or have anything to do with the keg found by the officers between my house and the bathing pool, which is within a quarter of a mile of my house. From 1 to 15 cars pass by every day and night with people going there to swim. I had no interest in this stuff, whatever it was, and had nothing to do with it. I did not know that it was there until a day or two after the officers found it. I have never before been arrested. I heard Mr. Short had a warrant for me and I came in; he told me what it was, and I made bond.”

The insufficiency of the evidence to support the verdict, finding the defendant guilty of having in his possession intoxicating liquor, is apparent. There is no evidence tending to prove possession by the defendant of the keg and its contents, and the evidence is wholly insufficient to show that the contents of the keg in question was intoxicating liquor or a liquid containing more than one-half of 1 per cent, of alcohol, measured by volume.

Because there was no competent evidence tending to show that the offense charged had been committed, the judgment of the lower court is reversed.

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


text:
    FRANK WIMBERLY v. STATE.

      No. A-4690.
    Opinion Filed July 2, 1924.
    (226 Pac. 1065.)
    (Syllabus.)
    Appeal and Error — Appeal Dismissed When Appellant Becomes Fugitive from Justice. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal unless defendant is where he can be made to respond, to any judgment or order which may he rendered or entered in the case; and, where a defendant becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal.
    Appeal from County Court, MeCurtain County; T. G. Carr, Judge.
    Frank Wimberly was convicted of a violation of tbe prohibitory law, and he appeals.
    Appeal dismissed.
    C. D. Wilkinson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Frank Wimberly, was convicted on a charge that he did have possession of about 30 gallons of whisky with the unlawful intent to sell the same and his punishment fixed at six months’ confinement in the county jail and a fine of $500. From the judgment rendered in pursuance of the verdict on March 25, 1923, an appeal was perfected by filing in this court on May 19, 1923, a petition in error with case-made.

On June 4, 1924, counsel for the state filed a motion to dismiss the appeal for the following reason:

“That plaintiff in error, Frank Wimberly, has fled from the jurisdiction of this court, as shown by the affidavits of the sheriff, undersheriff, and a citizen of MeCurtain county.”

No response or answer has been filed to this motion.

On the facts as averred in the motion and the affidavits attached thereto, we think the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions that, where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and, where the plaintiff in error becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss his appeal. Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515; Glover v. State, 12 Okla. Cr. 287, 155 Pac. 199; Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453.

It is our opinion that plaintiff in error has waived the right to have his appeal in this court considered and determined.

The appeal is therefore dismissed. Mandate forthwith.

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


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    STANLEY SNYDER et al. v. STATE.
    No. A-4625.
    Opinion Filed July 8, 1924.
    (227 Pac. 892.)
    (Syllabus.)
    1. Abatement of Prosecution — Death of Accused. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.
    2. Appeal and Error — Dismissal of Appeal where Defendant Pardoned. Where a defendant is pardoned pending the determination of his appeal, the appeal will be dismissed.
    Appeal from County Court, Washington County; Robert D. Waddill, Judge.
    Stanley Snyder and another were convicted of transporting intoxicating liquor, and they appeal.
    Dismissed and cause remanded.
    George, Campbell & Ray, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were tried and convicted on a charge that they did in Washington county, on or about November 15, 1922, unlawfully transport 24 quarts of whisky, and in accordance with the verdict of the jury were each sentenced to be confined in the county jail for five months and pay a fine of $400. From the judgments rendered on the verdict an appeal was perfected by filing in this court on April 6, 1924, a petition in error with case-made.

On July 3, 1924, counsel of record filed a suggestion of the death of the plaintiff in error, Stanley Snyder, with affidavit attached showing that he was killed on or about May 9, 1924.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in this action as to plaintiff in error Stanley Snyder do abate. The trial court is directed to enter an order to that effect.

Counsel of record also filed a motion to dismiss the appeal of plaintiff in error Pat Durkin for the reason that on the 22d day of October, 1923, J. C. Walton, then Governor, granted a full pardon, duly authenticated under the great seal of the state, and filed in the office of the secretary of state.

The uniform holding of this court is that when a pardon is granted by the Governor, and this fact is called to the attention of the court, pending the determination of an appeal, the appeal will be dismissed. •

It is therefore considered and adjudged that the appeal herein as to plaintiff in error for Pat Durkin be dismissed and the cause remanded to the lower court.

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


author: PER CURIAM.

text:
    G. W. SMALLEY v. STATE.
    No. A-4019.
    Opinion Filed July 9, 1924.
    (227 Pac. 1119.)
    Appeal from County Court, McCurtain County; T. C. Carr, Judge.
    G. W. Smalley was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    J. N. Fortner, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, G. W. Smalley, was convicted on a charge that he did have in his possession about two gallons of whisky with the unlawful intent to violate the prohibitory liquor laws, and his punishment fixed at confinement in jail for 30 days and a fine of $50. From the judgment rendered in accordance with the verdict on June 23, 1923, an appeal was perfected by filing in this court on January 2, 1924, petition in error with case-made. On June 19, 1924, counsel of record in open court moved that said appeal be dismissed. Which motion was allowed, and the appeal herein dismissed. Mandate forthwith.


text:
    ADELIA SMITH v. STATE.
    No. A-4425.
    Opinion Filed July 14, 1924.
    (227 Pac. 901.)
    (Syllabus.)
    1. Continuance — Dismissal for Delay of Trial' — Burden on State to Show Cause for Holding Accused Without Trial Beyond Statutory Time. Under the provisions of section 2913, Comp. St. 1921, providing for a dismissal of a criminal case on application of the accused for unnecessary delay, it is enough for the accused to show that the time fixed by the statute, after information filed, has expired, and that the cause was not postponed on,his application. If there was any cause for holding him for a longer time without trial, it was for the prosecution to show it.
    2. Trial — Instruction on Burden of Proof and Reasonable Doubt Held Erroneous. An instruction on reasonable doubt and burden of proof, as given by the court, held misleading and prejudicial to the rights of the accused.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    Adelia Smith was convicted of the unlawful manufacture of whisky, and she appeals.
    Reversed and remanded.
    C. H. Madden, for plaintiff in error.
    'The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, Adelia Smith, defendant below, was convicted of manufacturing corn whisky. The jury fixed her punishment at confinement in the county jail for a period of sixty days, and assessed a fine of $350.

The defendant was an unmarried, middled aged woman, the owner of a large farm, on which she resided alone. She also owned bank stock and other valuable personal property. At the time of her arrest she was in poor health, and had just recently returned to her home from a hospital in a nearby town. At and just before the time of her arrest she was partially confined to her bed, and her food and other necessities were brought to her by her neighbors.

The officers made application for and secured a search warrant to search her house and premises. They found a still in operation in her garage, under lock and key, located near the residence, together with a large quantity of mash, and about one and a half gallons of whisky, the product of the still.

Defendant testified that she knew nothing about the still or its operation, and was not implicated in the manufacturing of the whisky seized and offered in evidence. The key to the garage was in defendant’s possession, and she attempted to show that this garage was a kind of combination implement shed and garage, and that it was possible to enter and leave the shed without disturbing the lock.

No facts were set forth in the affidavit for the search warrant nor in the warrant itself as a foundation for its issuance. It was issued merely on information and belief. Section 2879, Comp. Stat. 1921, provides that the application shall "set forth the facts” upon which the cause for belief is founded, but, since no timely objections were made to the introduction in evidence of the liquor and implements of manufacture seized, on the ground that the search and seizure were illegal, that point cannot now be successfully urged on appeal.

Defendant made a showing that she was arrested in April, 1921, and not tried until more than a year later, with two terms of court intervening; that she was at all times ready, demanding a trial, and that she was not accorded her constitutional right of a speedy trial, and that the delay was through no fault of hers, and that she had not asked for nor assented to the several continuances by the state. Section 2913, Comp. Stat. 1921, is as follows:

"If a defendant, prosecuted for a'public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

This court has held that not every such delay will operate as a cause for a dismissal, but we think the showing made was sufficient to require the state to show that the delay was necessary. In McLeod v. Graham, County Judge, 6 Okla. Cr. 197, 118 Pac. 160, the court said:

“It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the cause was not postponed on his application. If there was any cause for holding him for a longer time without trial, it was for the prosecution to show it. The court could not presume it.”

And in Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80, a like declaration is made.

Touching this point, it appears that the trial court gave the county attorney permission to supply the record here with certain portions of the records below. The record here is silent as to any showing made by the state on this point, and we can only speculate as to what that which has been omitted from the record would disclose. We are therefore unable to determine whether the application for a dismissal under this statute should have been granted.

Defendant excepted to and urges as error instruction No. 2 given by the court, which is as follows:

“You are instructed that the burden of proof is upon the. state to prove all material allegations contained in the information beyond a reasonable doubt, but, when the state has made out its case by competent testimony beyond a reasonable doubt, the burden of proof shifts to the defendant, who must introduce sufficient testimony in rebuttal to raise a reasonable doubt in your minds as to the guilt of the defendant. In this connection you are instructed that, if you believe beyond a reasonable doubt that at the time the officers made a raid upon the premises of the defendant that a still was found in operation in the garage of the defendant, and that intoxicating liquor containing more than one-half of 1 per cent, of alcohol, measured by volume, was being-manufactured, as charged in the information, and that the premises were in possession of the defendant, although the defendant was not in the garage but in the house a few feet away, it would warrant your finding of a verdict of guilty, unless there was sufficient evidence submitted by the defendant in rebuttal to the testimony offered by the state to the extent of raising in your minds a reasonable doubt as to her guilt; and if you believe from the evidence in this case beyond a reasonable doubt that the defendant is guilty of the crime as charged in the information, then you will find the defendant guilty; but, if you have a reasonable doubt as to her guilt, then your verdict should be not guilty.”

This instruction is faulty in several particulars. It is an unwarranted comment on the weight of the evidence and a misleading statement of law on the burden of proof. In a criminal case the burden of proof, strictly construed, never shifts from the state to the defendant. The burden of introducing further evidence may shift from side to side, but the burden is always with the state on the proof as a whole. Ordinarily, it is error for the court to single out and call to the attention of the jury a part of the state’s case and say to them that, if they believe that part beyond a reasonable doubt, then the burden devolves upon the defendant to show proof of justification. The burden is upon the state as to the whole of the testimony, as distinguished from some designated part of it. And section 2719, Comp. Stat. 1921, relating to mitigation or justification in homicide cases, will not apply in this case. The instruction as given was prejudicial.

For the reasons stated, the cause is reversed and remanded.

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


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    LEE EYLAR v. STATE.
    No. A-4428.
    Opinion Filed July 14, 1924.
    (227 Pac. 897.)
    (Syllabus.)
    Trial — Witnesses—Scope of Impeaching Testimony of State’s Own Witness — Necessary Instruction. Where the trial court permits the prosecuting officer, upon the ground of surprise, to impeach the state’s chief witness by showing contradictory testimony given by him at the preliminary examination, the impeachment of such witness should be limited to a contradiction of the material testimony, given at the trial, which is injurious to the state. The trial court, under such circumstances, should positively instruct the jury that none of the contradictory statements made at the preliminary trial may be considered as substantive evidence of guilt.
    Appeal from District Court, Pittsburg County; John L. Norman, Special Judge.
    Lee Eylar was convicted of tbe larceny of an automobile, and he appeals.
    Reversed and remanded.
    R. W. Higgins and Cad Mathis, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, Lee Eylar, defendant in the trial court, was by a verdict of a jury rendered February 11, 1922, found guilty of the theft of an automobile, and the court, rendering judgment on the verdict, fixed his punishment at confinement in the penitentiary for a term of seven years. The defendant says that the evidence is insufficient to support the verdict; that the verdict is based on evidence vital portions of which were incompetent and erroneously admitted, tending to arouse the passions and prejudices of the jury; and that the court failed to define or instruct upon certain issues of law raised by the evidence.

The evidence implicating the defendant was largely circumstantial. It will serve no good purpose to fully describe the plot and all the things done by those who participated in its commission. The deductions based on the evidence as it appears in the record are these: That the defendant is a versatile individual, who has been engaged in numerous and varied occupations. At different times he has been a farmer, a telephone operator, a newspaper editor, a minister of the gospel, and more recently a lawyer. The county attorney insisted at the trial that he was also an automobile thief and a paramour — a situation well set to arouse the suspicions of the jury and divert their minds from the main issues in the case.

Charley Morris, the chief witness for the state, a young man 20 years of age and by trade an automobile mechanic, was arrested as a joint participant in the automobile theft. At the preliminary trial Morris testified that the defendant owned two old Ford cars and that he had been employed in making repairs on both of these cars; that at the request of Eylar, the defendant, Morris, and Harry Young went in the nighttime to where the stolen car was hidden in an isolated place and took from the stolen car the radiator, timer, tires, and other parts and placed them on one of the defendant’s cars. At the trial in district court Morris repudiated his story told at the preliminary and told a different story, exonerating the defendant. IThis state’s witness explained that he had testified as he did at the preliminary examination for his own protection; that Jim Roberts, a deputy sheriff, had threatened to send him to the penitentiary if he would not by his testimony help send Eylar to the penitentiary. Quoting from the testimony of Morris at the final trial:

“A. He [Jim Roberts] told me that he had found out that Mr. Eylar stole Mr. Marlow’s car and he knew all about it, and that if I didn’t help send Lee Eylar to the penitentiary he would send me; and he later on said if he hadn’t told me what he did, he had already made up his mind to arrest me and throw me in for it, and he told me down by the Doss House there that Mr. Eylar told Mr. Marlow that for $25 he would prove that I stole his automobile. That was Mr. Eylar’s statement to Mr. Marlow; Jim Eoberts told me that Mr. Eylar told Mr. Marlow that.
“Q. Then did he make you believe that if you didn’t tell a story connecting Lee Eylar with the theft of that automobile that he would put you in prison? A. Yes, sir.
“Q. Is that the reason that you stated at the preliminary that Lee Eylar was connected with the theft of that ear? A. Yes, sir.
“Q. Now, do you know — did Mr. Eylar have anything to do, so far as you know, with the stealing of this man’s ear down there? A. No, sir; he had nothing to do with the stealing of it.
“Q. And you took those parts off of the Eylar ear and Harry Young took them away? A. Yes, sir; Harry made away with them; I don’t know what become of them.
“Q. I will ask you if you know whether or not, at that time, Lee Eylar knew that you boys were going to do that? A. I don’t know, unless him and Harry knew about it.
“Q. Did he ever tell you to do it? A. No, sir; he never did tell me to do it.
“Q. So far then as you are concerned, and so far as your knowledge of this matter goes, Lee Eylar knew nothing of that car being stolen, whatever, did he? A. No, sir.
“Witness: I have a statement I would like to make to the jury, Mr. Whitt, if it will be all right with you.
■ “Mr. Whitt (County Attorney): What is it?
“A. A statement I would like to make. Mr. Eylar came to me here a day or two ago and asked me what I was going to swear to in this case and I told him I wasn’t going to swear to anything but the truth and I didn’t care who it hurt; if it hurt him it would hurt him; and if it hurt me it would hurt me. I told him I would swear to the facts in this case, and I have done my part of it.”

None of the parts taken from the stolen car could be identified as being those replaced on the defendant’s car, except that some witnesses said that the Firestone tires on one of the defendant’s cars looked like those that were on the stolen car. One of these tires had a short cut in the tread and the owner of the stolen ear said that that was the condition of one of his tires.

It will be seen that the state impeached its own chief witness and offered no other witness to prove that the story told him at the preliminary was true, rather than the story told by him at the final trial.

The court did not instruct the jury that the testimony taken at the preliminary trial could be considered only for purposes of impeachment and that it could not be considered by the jury as substantive proof of the truth of the facts testified to by the witness at the preliminary trial. This being the case, it is fair to assume that the jury believed it was incumbent upon them to decide which of the two stories was the true one, and by their verdict it appears that they did decide that this witness told the truth at the preliminary trial and that the story told at the final trial was false.

In the case of Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995, the court said:

“Contradictory statements made by a codefendant after the commission of the crime, not shown to have been made in the presence * * * of the defendant being separately tried, are in no sense original evidence against the latter. Where such statements relate to material matters and proper foundation is laid, they may be shown and may be considered by the jury only for the purpose of affecting the credibility of the witness making them. And when requested it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendant, but only for the purpose of affecting the credibility of the witness. Refusal of the court to instruct upon this issue after such request is error.”

In the case of Broshears v. State, 17 Okla. Cr. 192, 187 Pac. 254, the court said:

“Where the trial court permits the prosecuting officer, upon the ground of surprise, to impeach a state’s witness by showing contradictory testimony given at the preliminary examination, the impeachment of such witness should be limited only to a contradiction of the material testimony given at the trial which is injurious to the state, and such matters should be called specifically to the attention of the witness. The trial court, under such circumstances, should positively instruct the jury that none of the contradictory statements may be considered as substantive evidence of guilt. Before impeaching evidence of this kind is permitted to be introduced, there should be a clear showing of surprise on the part of the state.”

Other cases to the same effect are Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668.

Ordinarily, where an incidental issue of law is involved and no request is made for an instruction on that point and none is given on the court’s own motion, the aggrieved party cannot insist upon that omission for the first time on appeal; but where the omission of an instruction on impeaching evidence is an omission upon the main issue in the case the rule should not apply.

In the Thomas Case, supra, a request was made for a proper instruction on the purpose for which the impeaching proof should be considered. While no such instruction was requested here, the most vital question in the case was the admissibility of the statement made by this witness at the preliminary trial as substantive evidence and not merely for purposes of impeachment. Under circumstances like these, where the ease stands or falls upon a single question of law clearly raised by the evidence, the court should declare the law on that point whether requested to do so or not, and particularly where, as in this ease, an objection was made to the introduction of the record of the former testimony of the state’s chief witness. Section 2722, Comp. Stat. 1921. Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375; Gray v. State, 7 Okla. Cr. 102, 122 Pac. 265.

The testimony of Morris at the preliminary trial could not be considered as substantive proof implicating the defendant, but only as affecting his credibility; the other testimony adduced by the state, and the only competent testimony for the consideration of the jury, was fragmentary and insufficient to establish the defendant’s guilt, or to point strongly to such guilt, amounting to nothing more than a surmise of suspicion — circumstances not inconsistent with innocence.

The defendant was asked on cross-examination if he did not frequently go to a certain farm, a resort for thieves, and whether his relations with a certain woman there were not improper. (This the defendant denied, and there was no proof or evidence offered establishing the truth of these accusations.

The judgment of the trial court is reversed and the cause remanded for a new trial.

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


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    B. L. HERRING v. STATE.
    No. A-4335.
    Opinion Filed July 14, 1924.
    (227 Pac. 1118.)
    Appeal from District Court, Alfalfa County; Jas. B. Cullison, Judge.'
    B. L. Herring was convicted of uttering a forged instrument, and sentenced to serve a term of 3*/2 years in the penitentiary, and he appeals.
    Appeal dismissed.
    Giddings & Giddings, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

B. L. Herring, plaintiff in error, moves this court to dismiss his appeal. Motion allowed, and appeal dismissed.


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    DOC BARKER v. STATE.
    No. A-4413.
    Opinion Filed July 14, 1924.
    (227 Pac. 846.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction for Murder. The evidence, in part circumstantial, amply justified the jury in finding the accused guilty of murder.
    Appeal from District Court, Tulsa County; W. B. Williams, Judge.
    Doc Barker was convicted of murder, and. he appeals.
    Affirmed.
    John Sykes and W. L. Coffey, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 26th of August, 1921, the Fuller Construction Company was engaged in the construction of the St. Johns Hospital located in the southern suburbs of the city of Tulsa. The building was of immense proportions, and there was much valuable material on and about the premises. To protect their property the construction company employed a night watchman, Thomas Terrill, a man about 65 or 70 years of age. Upon these premises there was a small frame building, used by the company in the daytime as an office, and containing office furniture and a small iron safe. At night the office was used by the watchman as a resting place, and from there he started hourly to inspect different parts of the premises, where at various places he was required to punch the dial of a time clock which registered the time of his various inspections.

On the night of the homicide this mechanical device showed that the watchman had made his regular 11 o’clock inspection, but that none of the dials had been punched after that hour. The following morning the old watchman was found dead, with his feet resting upon the steps leading to the entrance of the office, his body prone upon the earth, with two bullet wounds in it. Both of the bullets which had entered the body were found at a post mortem examination and preserved. One of these was of a peculiar shape and unusual composition. Upon investigation it was found that only one hardware store in Tulsa sold that kind of ammunition. From the clerks in that store the county evidence man ascertained that a man by the name of Bingley, who operated a line of taxi vehicles, had purchased such ammunition. Bing-ley had in his employ as a taxi driver one Sylvester Gillard, who, in the absence of Bingley’s wife, who was away on a visit, was frequently in Bingley’s room. In this room, in a leather hand bag, were two pistols, presumably the property of Bingley. On the night of the homicide one of the participants in the crime went to Gillard, told him that he wanted two guns to use that night, and asked Gillard if he knew where he could get them. Gillard knew that Bingley was away from his rooms, at some kind of ¿ lodge meeting, and in Bingley’s absence went to the room and procured these two guns and delivered them to the person who had asked him for them, this person in turn delivering them one to a man named Davis and the other to the defendant, Barker. The defendant and three others, with these pistols, lay in wait at Admiral Park, near the place where the hospital was being built, and there completed their plans which had been previously partly made for robbing the old night watchman and the safe in his charge. On several occasions Gillard had heard the participants discuss plans to rob this night watchman, and after the tragedy he heard them discuss the manner of the killing. After the homicide the guns were returned to Gillard and replaced in the room belonging to Bingley. Gil-lard had considerable difficulty in procuring the pistols from the men who had used them in order to return them to the owner without whose knowledge or consent they had been taken. A few days later these guns were stolen from Bingley’s room, and their whereabouts at the time of the trial was unknown.

The story in full is replete with interesting details. Some of the participants in the crime, mere boys, seemed to be imbued with a spirit of total depravity, and to be without any regard whatever for human life — one of them arguing that it would not be murder to kill so old a man because his span of life was nearly spent.

The defendant, on the witness stand in his own behalf, admitted that he was with the participants, and discussed with them the advisability of the robbery, just prior to the commission of the crime, but maintained that he refused to participate in the hold-up, not out of any moral consideration, but because the loot likely to be taken would be small, and would have to be divided among too many people.

For some time after the tragedy the murder of this old night watchman remained a mystery. It was due to the commendable zeal and skill of the county attorney and the county evidence man that the facts just recited, and many more that might be recited, were disclosed. Some of the evidence implicating the defendant was circumstantial and some of it was direct. Whether the man Gillard, who furnished the pistols with which the homicide was committed, was an accomplice, does not clearly appear from the evidence. However that may be, the jury were correctly instructed upon the law of aiding and abetting, and the term “accomplice” and its application in this ease were correctly defined. Whether Gillard was an accomplice or not, there was the testimony of other witnesses and a multitude of circumstances pointing to the guilt of the defendant. It appears conclusively that the defendant was one of the persons who planned the robbery, and the jury evidently believed that he was in the act of carrying out that crime when the murder was committed.

The court’s instructions to the jury were fair, clearly and correctly defining the law of the case, and the defendant in all other respects was accorded a fair trial. The claim of the defendant that his application for a continuance should have been granted, and that the court committed error in permitting a list of additional witnesses to be indorsed on the information, have been carefully examined, and found without merit. Neither of these claims presents any new question or application of law warranting an extended discussion of the question.

The judgment of the trial court is affirmed.

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


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    JIM THOMPSON et al. v. STATE.
    No. A-4390.
    Opinion Filed July 19, 1924.
    (227 Pac. 892.)
    (Syllabus.)
    1. Evidence — Indictment and Information — Information Describing Place to which Liquor Conveyed — Judicial Notice of Government Surveys of Land. An information charging the offense of illegally transporting intoxicating liquor “from some place at and within Canadian county, unknown to the affiant, to another place therein, to wit, a point on the public highway on the section line running north and south between sections 20 and 21, township 13, range 5, Canadian county, state of Oklahoma,” is sufficient.
    a. Courts will take judicial notice of government surveys of land.
    2. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Transportation. The facts and circumstances in evidence are sufficient' to sustain the conviction as to both defendants.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Jim Thompson and O. L. Anderson were jointly tried and convicted of the offense of unlawfully transporting intoxicating liquor, with punishment fixed as to Thompson at a fine of $250 and imprisonment in the county jail for 3 months, and as to Anderson at a fine of $100 and imprisonment in-the county jail for 30 days, and they appeal.
    Affirmed.
    E. T. Barbour, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

This is a joint appeal by plaintiffs in error from judgments rendered in the county court of Canadian county on the 2d day of March, 1922, with punishment assessed against each defendant as above stated.

It is first contended that the court erred in overruling the demurrer to the information. The information charged the offense as transporting “from some place at and within Canadian county, unknown to affiant, to another place therein, to wit, a point on the public highway on the section line running north and south between sections 20 and 21, township 13, range 5, Canadian county, state of Oklahoma.”

It is contended that, while the state may allege the conveyance to be from a point unknown to a point known in the county, the description of the known point as set out in the information in the instant case is too indefinite and uncertain, and that the court should have sustained the demurrer thereto for that reason. Courts will take judicial notice of the location of lines and places located by government surveys of land. Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796. The information described the place to which the alleged conveyance of liquor was made by these defendants as nearly as it was possible to do, and was sufficiently definite to preclude a second prosecution for this identical offense.

It is also contended that the evidence is insufficient to sustain the conviction. The evidence is to some extent circumstantial. The defendants were first seen by a witness on a public highway between sections 20 and 21, township 13, range 5, in Canadian county, at a point about 5% miles north and one-half mile east of the town of Yukon in said county. They were traveling in an automobile, and in the back part of the car this witness noticed a couple of suit cases and an old quilt, under which was apparently concealed something that resembled a jug. This witness provided the defendants with some gasoline for their ear and proceeded on his journey. Later he returned with an officer, and the defendants were found with the automobile on the public highway at a point about a city block distant from where they were first seen. Their car had broken down; the suit cases were still in the ear, as well as the old quilt, but nothing was under the quilt. Tracks were noticed leaving the car, across the road and into a field where a five-gallon water bottle full of whis-ky was found. These tracks led back from where the bottle of whisky was found to where the automobile was standing, and no tracks were discovered beyond where the bottle of whisky was found. This bottle of whisky was carried back to where the men were stopped with the broken down car, and the defendant Thompson was found to have a pint bottle about two-thirds full of whisky in his pocket. He stated to the parties that if they had had good luck they would have caught them with more whisky, and further said:

“There is no use having any trouble over this; you boys just take that whisky and sell it and keep the money.”

The defendants, as witnesses, admitted that they had driven from Guthrie to where they were found, but denied having any whisky in the car and explained Thompson’s possession of the pint bottle by stating that they bought that from a man who came along the road driving a truck.

We consider the facts and circumstances in evidence sufficient to sustain the conviction, and after a careful review of the record we find no errors sufficiently prejudicial to warrant a reversal of the judgment. The conviction as to each defendant is therefore affirmed.

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