text:
    GEORGE BREWER v. STATE.
    No. A-9299.
    Jan. 21, 1938.
    (75 P. 2d 901.)
    E. H. Beauchamp, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and H. P. Walker, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged in Craig county with the crime of larceny of domestic animals, was convicted, and sentenced to serve a term of four years in the penitentiary at McAlester, and has appealed.

The defendant was charged .jointly with Connor Duncan, Elmer Duncan, Tom Oaraclc, Blue Rogers, Lee Davis, and Max Monday with the larceny of seven head of cattle, the property of George Whittington. These cattle were located in a pasture belonging to Mrs. Cop-pedge in the Leach community, in Delaware county. They were stolen from this pasture some time in the month of February, 1935. One of the parties, Blue Rogers, indicted ivith defendant, turned state’s evidence and testified for the state. His testimony was that he was acquainted with the complaining witness, George Whittington, and the defendant, George Brewer; that he also knew Connor Duncan and Max Monday; that he remembered the cattle stealing deal in the vicinity of Leach, in Delaware county in 1935; that he had a conversation with defendant and Connor Duncan about this transaction at Duncan’s place on the afternoon of the day the cattle were stolen about 4 or 5 o’clock. He, in company with Connor Duncan and Elmer Duncan, went from Connor Duncan’s place to George Brewer’s home; that they there saw and talked with George Breiver about stealing the cattle from George Whittington. After the conversation they went up to the pasture where George Whittington’s cattle were, it was dark and about 8 o’clock at night. This witness, George Brewer, and Connor Duncan drove seven head of cattle out of the field, and drove them to the home of Connor Duncan; that they placed them in the barn, George Brewer, the defendant, assisting in the driving and helping to put them in the barn. They then went to the house and about 10 o’clock Max Monday, Arnold McClelland, and a truck driver named Lee Davis arrived. Max Monday and the truck driver lived in Siloam Springs, Ark., and Arnold McClelland was a neighbor Avhom they had awakened and had come to show them the way. Connor Duncan had called them, and when they arrived they went to the bam and looked at the cattle and bought them. They bought nine head, the seven head that had been brought by the parties and placed in the barn, and two head which were the property of Connor Duncan and were located in the lot adjoining the bam. Max Monday purchased the cattle and paid $86 for all of them, $60 for the seven head and $26 for the other two. The $60 was divided between Connor Duncan, the defendant, George Brewer, and the witness, each receiving $20. The $26 was given by Connor Duncan to his wife, the same being for the two' head of cattle privately owned by him. This witness admitted that he was charged in the original information with this same crime, and that he talked to the deputy sheriff and the justice of the peace and they had agreed to assist him in getting a parole if he would come clean in telling the truth. He also stated that he told the county attorney his story. This witness was corroborated by witnesses, both for the state and the defendant, as to the presence of defendant at the time that the cattle were bought by Max Monday.

The witness Max Monday testified as follows:

“Q. Did you buy any cattle in Oklahoma about that time? A. Yes. Q. How many head? A. Nine head. Q. Where did you buy them? A. I bought them about one mile south and one-half mile west of Cole’s store. Q. Is that in the Leach community in this county? A. Yes, sir. Q. Yon remember who was present when that trade was made? A. Arnold McClelland, Lee Davis, Blue Rogers, Connor Duncan and Brewer. Q. Just state whether this defendant, George Brewer, was there? A. He was. Q. Who went with you to this place? A. Lee Davis, Arnold McClelland. Q. You bought nine head of cattle? A. Yes. Q. This man Brewer was preesnt when the deal was made? A. He was there. I bought the cattle from Mr. Duncan. Q. Was that in his presence? A. He was there. I wouldn’t say for sure whether he was right present or not. He went outside.”

Similar evidence was also given by Arnold Mc-Clelland and Lee Davis and also Connor Duncan and Blue Rogers.

The witness Arnold McClelland testified as follows:

“Q. Did you go with them down there? A. Yes. Q. Who was with them when you got there? A. Blue Rogers, Connor and George. Q. What happened after you got there? A. They ivent to trying to sell them the cattle when we got there. Q. The George you have reference to is the defendant? A. Yes, sir.”

The owner of the cattle, George Whittington, testified as to the loss of the cattle and that they were located in Delaware county -at the time of their loss, and then testified as follows:

“Q. Do you remember in the spring of this year, 1936 —sometime in April — having a conversation with this defendant, George Brewer? A. Yes. Q. Can you fix the date? A. It was sometime in February, or March. Q. Where was the conversation? A. The first conversation I had with him was down in my field, just me and him. I was down there plowing a little clearing. Q. Was that before this case came up in the spring or May term? A. Yes, sir. Q. Do you remember the substance of that conversation? A. Yes. Q. Tell the court and jury what it was? A. He came down there and asked me — I will tell it as near as I can — be asked me if I had seen Jim Cop-pedge. I told him I had seen him the day before, for Jim told me he wanted to see me, but there were some other fellows there. He said I just thought I would come myself so there would be nobody to hear the conversation, only me and you. He said, I would like to get you to fix pins 0jj -op o} era ^utm noi! pjnoAi pres i -dn fix it so I could get out on a straight parole. I said you know I don’t have anything to do with that. He said you can help and can get the county attorney to do that. I said yes, I might but I wouldn’t. Q. You know what he had reference to? A. Yes, these cattle we are trying today. And we talked there all day — oh for an hour anyway that day, and the next night he came to my place and we talked about it again. Q. Who was present then? A. Nobody, just me and him, and the best I can remember I was up at the house and we talked again about it. Q. That same day? A. No that night, along the same conversation as to me agreeing to Avhat I would do. Q. Then the next day where did you see him? A. I saw him the next day out in front of his house. I was passing there and he stopped me and in this conversation I related to him what another party had told me. I told him Connor Duncan had told me he didn’t know whose cattle they were getting, and George said ‘we all knew whose cattle we were getting.’ He said ‘you know nobody would go in and get a bunch of cattle without knowing whose cattle they were.’ That was the conversation me and George Brewer had.”

The defendant, in his brief, relies for reversal of this case upon his assignment of error “that the court erred in overruling the demurrer of plaintiff in error in the lower court to the state’s evidence at the close of the state’s testimony, on the grounds of insufficient testimony adduced on the part of the state in chief, for the reason that the testimony adduced in chief and upon which the state secured a conviction is the sole and uncorroborated testimony of an accomplice.”

As urged by the defendant there is no question but that the witness Blue Rogers was under his testimony an accomplice of the defendant. He participated in the larceny and was given a part of the money received from the cattle which were stolen. Under the decisions of this court it has been universally held that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. It is not necessary in order to corroborate an accomplice, that the state should introduce evidence of complete proof of the crime, but there should be only some evidence of 'material facts in addition to the testimony of the accomplice, tending to connect the defendant with the commission of the crime charged. And when there is such corroborative evidence its weight and effect is a matter for the jury to determine. Oklahoma Statutes, 1931, § 3071 (Okla. St. Ann. tit. 22, p. 407, § 742); Frank Rice v. State, 60 Okla. Cr. 398, 64 Pac. 2d 1240; Smith v. State, 40 Okla. Cr. 88, 267 Pac. 283; Armstrong v. State, 39 Okla. Cr. 364, 265 Pac. 663; Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087; Campbell v. State, 12 Okla. Cr. 349, 157 Pac. 49; Martin v. State, 12 Okla. Cr. 510, 159 Pac. 940; Fortman v. State, 45 Okla. Cr. 23, 280 Pac. 1109. The question here presented is: Was the evidence sufficient to corroborate the witness Blue? We think it was. He was corroborated by witnesses for both the state and defense that he was present at the home of Connor Duncan when the cattle were purchased. Max Monday, who bought the cattle, Lee Davis, the truck driver, and a neighbor, Arnold McClel-land, who went with them on the night that the cattle were purchased, all testified to this fact. This testimony was also corroborated by Connor Duncan and Arnold McClelland. In addition to this testimony, Mr. Whitting-ton, the owner of the cattle, testified that after defendant was arrested and while this information was pending against him he had two or three conversations with defendant. It will be noted that in this connection the defendant, by his own statements, said: “ We all knew whose cattle we were getting.’ He said ‘You know nobody would go in and get a bunch of cattle without knowing whose cattle they were.’ That was the conversation me and George Brewer had.” The corroboration of an accomplice necessary to justify a conviction may be found in the testimony of the defendant, as well as that of other witnesses. State v. Lovelace, 29 Nev. 43, 83 Pac. 330; People v. Sullivan, 144 Cal. 471, 77 Pac. 1000; People v. Watson, 21 Cal. App. 692, 132 Pac. 836 ; People v. Tinnin, 136 Cal App. 301, 28 Pac. 2d 951; 16 Corpus Juris, p. 706, § 1440, and cases there cited; 12 Cyc. p. 458.

The judgment and sentence of the district court of Delaware county is affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte ROY WILLIAMS.
    No. A-9433.
    Jan. 21, 1938.
    (75 P. 2d 904.)

      Samuel W. Liske, for petitioner.
    Mac Q. Williamson, Atty. Gen., and ,Sam H. Latti-more and Owen J. Watts, Asst. Attys. Gen., for respondent.
   DOYLE, J.

This is an application for discharge from imprisonment in the state penitentiary by writ of habeas corpus on the part of Roy Williams.

It appears that petitioner is held under a commitment issued in execution of sentence upon a judgment of the district court of Muskogee county, rendered January 5, 1927, in accordance with the verdict of the jury finding petitioner guilty of the crime of robbery with firearms, wherein he was sentenced to serve a term of 25 years in the state penitentiary. He appealed. No briefs were filed and no appearance for oral argument made, the case was submitted on the record, and the judgment affirmed. Williams v. State, 41 Okla, Cr. 419, 273 Pac. 1009. The minimum expiration of the sentence based upon good conduct and works credit is November 19, 1938, as shown on the face of his prison record, showing* also, that petitioner had a clear record, without any penalties for violations of penitentiary rules. That on a prior conviction for the same offense, petitioner appealed, and while the appeal was pending he served one year, four months, and twenty-eight days in the penitentiary before the judgment was reversed and case remanded for a new trial. Williams v. State, 35 Okla. Cr. 171, 249 Pac. 433.

That having* been once convicted -for the same offense and having suffered punishment under the former conviction, he is entitled to credit for the time so served on the first conviction. Wherefore he has more than served out the entire term of punishment, and should have been discharged.

That for the reasons stated he is unlawfully deprived of his liberty, as his detention is without due process of law, and is a denial of the equal protection of the laws.

The argument is made on behalf of petitioner that since only defendants who are unable to give appeal bonds are tfie ones who have to serve the sentence in the penitentiary pending appeal, while those giving the statutory bond retain their freedom pending appeal, therefore, by the ruling of the Attorney General, petitioner-is denied justice according to due process of law; citing Jackson v. Com., 187 Ky. 760, 220 S.W. 1045, 9 A. L. R. 955, quoting annotation p. 958, as follows:

“It is generally conceded that where an original sentence is merely erroneous, credit may be had for the time served thereunder. But in some of the cases a distinction has been made between sentences which are merely erroneous and those which are regarded as absolutely null and void, and in the latter instance credit for the time served thereunder is refused — a result seemingly more consistent with dry logic than natural justice. The distinction has not been made in all of the cases. For instance, in the reported case (Jackson v. Com. [187 Ky. 760, 220 S. W. 1045, 9 A.L.R.] 955), the court without reference to1 the question whether or not the original judgment was void or merely erroneous, held that in resentencing, the defendants they should be allowed credit for the time served under the erroneous sentence. It will be remembered that the theory of. the court was that it would be both an. in justice and a ‘flagrant invasion of their legal rights’ to require them to serve their terms or any part thereof twice.”

In some jurisdictions statutes have been enacted which in some instances, at least, have a bearing upon the question under consideration. For instance, the Iowa statute, Code 1935, § 14018, provides that if a defendant, imprisoned during the pendency of an appeal, is granted a new trial and is again convicted, the period of his former imprisonment shall be deducted from the period of imprisonment to be fixed on the last verdict of conviction.

See State ex rel. Bone v. Barr, Warden, 133 Iowa, 132, 110 N.W. 280, holding that upon resentence the defendant is entitled to> have the “good time” earned under his former sentence considered in determining the amount of further punishment that should be imposed.

In the case of In re Bojar, 7 Wash. 355, 35 Pac. 71, it is held that a defendant is entitled to the benefit of the statute when the appeal is dismissed for want of prosecution.

Counsel for the state in their brief say:

“The effect of the granting of a new trial has been declared by statute in this state.
“Section 3119 O.S. 1931, [22 Okla. St. Ann. § 951] provides in part: ‘A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. * * * The former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction ivhich might have been had under the indictment or information,’ ”—citing Watson v. State, 26 Okla. Cr. 377, 224 Pac. 368; Duncan v. State, 41 Okla. Cr. 89, 270 Pac. 335; Bayne v. State, 48 Okla. Cr. 195, 290 Pac. 354.

The response to the rule to show cause why the writ should not issue concludes:

“Respondent denies that petitioner is entitled to credit for the time he served while said case was on appeal, and that petitioner will not have served his present sentence on a minimum basis until November 19, 1938.”

The important question involved in the case on the uncontroverted facts is whether or not petitioner is entitled, under the law, to credit with the time he had served in the penitentiary before the reversal of the former judgment; in other words, to have the period of his former imprisonment for the same offense deducted from the term of imprisonment fixed on the last verdict of conviction?

In the early case of Ex parte Tyler, 2 Okla, Cr. 455, 102 Pac. 716, 718, a similar question was before this court. In the opinion, after quoting the statute, we said:

“Here are two distinct provisions. The first provides that: ‘If an appeal is taken and the bond so fixed is given by the defendant, conditioned, etc., the execution of the judgment shall be stayed until affirmed or reversed, or modified by the Supreme Court.’ The second provides that: ‘If no bond be given the appeal shall stay the execution of judgment, but the defendant shall be confined in the county jail, until the case is finally disposed of.’ The first provides for a supersedeas bond when an appeal is taken. The latter dispenses with a bond, but stays the execution when the appeal is taken. The greater includes the less as in many other instances, but the less does not necessarily extinguish the greater. The section amended (5612, Wilson’s Rev. & Ann. St. 1903 [22 Okla. St. Ann. §§ 1057-1062]) originally provided: ‘If no bond be given the appeal shall not stay the execution of the judgment’ ; as amended it omits the word ‘not,’ and adds: ‘But the defendant shall be confined in the county jail until the case is finally disposed of.’ This amendment was manifestly designed to prevent the imprisonment in the penitentiary of a defendant pending his appeal from a judgment of conviction. * * *
“We are not disposed to' defeat the object of the statute by so construing it as to make- it a nullity. The true inquiry in the interpretation of statutes is to ascertain the intention of the lawmaking power in order to give it proper effect; and the only reasonable construction that can he placed on this provision is that upon the court notifying the defendant of his right to appeal and fixing the time within which the petition in error shall be filed in this court, as provided in said section aforesaid, and upon the defendant giving notice that he intends to appeal, the judgment of imprisonment in the state penitentiary shall thereupon be stayed for a period of not less than 33 days, the statutory .time to make and serve a case. Should the court or judge thereof extend the time for making a case, and the time within which the case may be served, the time for settling, certifying, and signing the case should be limited, also the time should be fixed for filing the petition in error in the Criminal Court of Appeals. The defendant should have the advantage of every right which the law secures to him before a conviction should be made final. Among these rights, the defendant has the right of appeal, the right to give bail, if the crime be a bailable one, and the right to have the execution of the judgment of imprisonment in the state penitentiary stayed pending the appeal, even though no bail bond is given. * * *
“Counsel for the state in their brief argue that to give force and effect to this provision of said section as amended no defendant in a criminal case could be transported to the state penitentiary for a period of one year after his conviction, for the reason that under the statute (section 5609, Wilson’s Rev. & Ann. St. 1903 [22 Okla. St. Ann. § 1054]) every defendant as a matter of right has one year after judgment is rendered in which to take his appeal, but neither reason nor authority has been adduced to support this argument. .Such a construetion would make this provision an anomaly in our Criminal Procedure on appeal. There is a rule of construction which we think applicable to this question, and it is, where the court finds in any particular clause an expression not so definite and expressive in its import as those used in other parts of the same statute, if, upon a view of the whole act, the real intention of the lawmaking power can be collected from the definite and more extensive expressions used in the other parts, the court should give effect to such definite expressions, unless such a' construction contravenes some other potent provision of the law. While said second provision is somewhat indefinite, yet, when we consider it with the direct and definite expressions of the provision providing- for super-sedeas and prescribing the practice in cases of bail, the obvious intention of the lawmaking power as manifested in these amendments ivas to prevent the degradation of a defendant by incarceration in the state penitentiary pending his appeal, who might thus secure a reversal of the judgment of conviction, and who by reason of his poverty was unable to give a supersedeas bond. We believe it is clearly contemplated by these amendments and the act as a whole that the execution of a judgment of imprisonment in the state penitentiary shall be stayed by proper proceedings taken to reverse, vacate, or modify the judgment on appeal, and it is the privilege of a defendant unable to give bail pending his appeal to be held in the county jail.”

Our statute provides:

“The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.” Chapter 1, art. 1, § 2, St. 1931, 12 Okla. St. Ann. § 2.

It was the rule at common law that a writ of error operated, by its own inherent force, as a supersedeas of all proceedings on the judgment in the court below. 3 Cor. Jur. p. 1272.

The statutory provisions in this state providing for appeals in criminal cases changed the common-law rule as to the effect of an appeal or writ of error upon the right of enforcement of a judgment of conviction in the court below.

The difference between the cases cited in the Attorney General’s brief based on the common-law rule and the one at bar is a radical one.

In a case like this the court has the right to examine its own records and take judicial notice thereof in regard to the proceedings formerly had therein by one of the parties to the proceedings now before it. Ex parte Nowabbi, 60 Okla. Cr. App. 111, 61 P. 2d 1139.

We have examined the record on the appeal in Williams v. State, 35 Okla. Cr. 171, 249 Pac. 433. It appears the reversal of the judgment was for misconduct of the prosecuting attorney in cross-examining a witness. We have also examined the record in Williams v. State, 41 Okla. Cr. 419, 273 Pac. 1009, and it appears that the judgment was affirmed for failure to prosecute the appeal.

Under Procedure Criminal, section 3204, 22 Okla. St. Ann. § 1066, this court, exercising its revisory jurisdiction, has the power and authority to modify any judgment appealed from by reducing the sentence. Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599.

This court has plenary power to rectify the judgment appealed from by reducing the sentence in conformity to the punishment prescribed by the statute. Johnson v. State, 12 Okla. Cr. 260, 154 Pac. 1004.

If the attention of the court had been called to the question of appellant’s right to be credited with the actual time served as a part of his term of imprisonment pending the appeal, we think that under the statute, section 3196, as amended by Laws 1935, c. 17, art. 5, § 1, 22 Okla. St. Ann. § 1058, the same should have been allowed, and the judgment so modified. However, the precise question involved is a question of first instance.

Under Bill of Rights, bail is a matter of right before conviction in all cases, “except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” Const, art. 2, § 8.

The right of bail after conviction pending appeal is purely statutory, and would not exist in the absence of the statute.

The Procedure Criminal sections construed in Ex parte Tyler, supra, appear as amended in the Revised Laws of 1910, §§ 5994, 5995, 22 Okla. St. Ann. §§ 1057, 1058. In statutes of 1931, as follows:

“If the crime of which the defendant is convicted be a bailable one, the court shall at the time of entering judgment notify the defendant of his right to appeal and fix the amount of his appeal bond and the time within which the bond shall be given in order to stay the execution of the judgment pending the filing of the appeal in the appellate court, and if the bond be given in the time fixed by the court, execution of the judgment shall be stayed during the time fixed for the settling of the case-made. If the case-made be settled in time and the appeal filed in the appellate court as required by law, then the bond shall stay execution of the sentence during the pendency of the appeal, subject to the power of the court to require a new or additional bond, when the same is by the court deemed necessary.” Section 3195, 22 Okla. St. Ann. § 1057.

Section 3196, 22 Okla. St. Ann. § 1058, in part provides :

“If no bond be given the appeal shall not stay execution of the judgment, except in capital cases or where otherwise specifically provided by law.”

Section 3196, as amended, article 5, c. 17, p. 20, Session Laws of 1935, 22 Okla. St. Ann. § 1058, provides:

“If no bond be given the appeal shall not stay execution of the judgment, except in capital cases or where otherwise specifically provided by law. If pending the appeal the bond be given, a further execution of the judgment shall be stayed and the defendant released pending the determination of the appeal.”

The first provision, is that:

“If the bond be given in the time fixed by the court, execution * * * shall be stayed during * * * the pendency of the appeal.”

The second provides that: “If no bond be given the appeal shall not stay execution of the judgment.”

In the case of Ex parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549, 26 L.R.A., N.S., 110, this court held:

“The law giving to prisoners certain deductions from their term of imprisonment for good behavior is not unconstitutional as an infringement of the prerogative of the Governor to pardon. It does not restrict or interfere with this power in any way. It simply fixes the term of imprisonment in certain cases and upon certain conditions, and thus enters into and becomes a part of the judgment and sentence of the court.”

In the course of the opinion it is said:

“Under the provisions of Procedure Criminal (article 14, c. 89, Snyder’s Comp. St. 1909 [22 Okla. St. Ann. § 961 et seq.]), after a plea or verdict of guilty the court must render judgment, and assess the punishment or penalty prescribed by law. The time fixed for executing a judgment and sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the judgment and sentence. The essential part of the judgment and sentence is the punishment, and the amount thereof, without reference to the time when it shall be executed.”

The uniform holding of this court is that expiration of time without imprisonment is in no sense an execution of the sentence, and, where the punishment is imprisonment, the sentence may be satisfied only by serving the imprisonment imposed, unless remitted by death or legal authority.

Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L.R.A., N.S., 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Smith, 17 Okla. Cr. 578, 190 Pac. 1092; Heath v. State, 22 Okla. Cr. 122, 210 Pac. 560; Ex parte Porter, 60 Okla. Cr. 327, 64 P. 2d 1235.

It appears that before the amendment in the 1910 revision of the statutes, that while an appeal was pending, the judgment was not enforceable against the defendant. A detention during the pendency of the appeal, subject to his right to be admitted to bail, was of the same character as a detention on the charge made against him during the pendency of the action in the trial court, down to the time of rendering the judgment and taking of the appeal. The amendment specifically provides: “If no bond be given the appeal shall not stay execution of the judgment.”

Applying the rule of statutory construction in the Tyler Case, that where the court finds in a particular clause an expression not so definite in its import as those used in other parts of the same statute, if upon review of the whole act the real intention of the lawmaking power can be collected from the definite and more extensive expressions used in other parts, the court should give effect to such definite expressions, unless such a construction contravenes some other potent provision of the law. While said second provision is somewhat indefinite, in that it does not specifically provide that the period of time served under the sentence while the appeal is pending is to be computed as a part of the time of sentence served, yet, when we consider it with the direct and definite expressions of the provisions providing for appeal and prescribing the practice in cases of bail, the obvious intention of the lawmaking power, as manifested in this amendment, was that a defendant, committed in execution of the judgment during the pendency of his appeal, shall be allowed credit for the time served in the penitentiary before the affirmance or the reversal of the judgment.

A convicted defendant by taking an appeal has waived his jeopardy only. On this subject, Mr. Bishop says:

“It would resemble a civil suit to recover a debt already paid, and punishment paid is no more due a second time than a civil debt.” 1 Bish. New Crim. L. 614.

And we have invariably held that a defendant committed in execution of the judgment on affirmance is entitled to credit for time served while the appeal was pending. Section 3208, 22 Okla. St. Ann. § 1070. Equal rights to all are what are intended to be secured by the establishment of constitutional limits to legislative power.

It is a well-settled rule of law that statutes prescribing punishment are to be strictly construed, in favor of the defendant, and, where such statute is capable of two constructions, the construction which operates in favor of the defendant is to be adopted. Ex parte McClure, 6 Okla. Cr. 241, 244, 118 Pac. 591.

It follows from the foregoing review that under the provision of the statute providing for the execution of the judgment, if no bond be given pending the appeal, and the defendant is committed to the penitentiary in execution of the judgment, and on a new trial after reversal on appeal, he is again convicted of the same offense, he is entitled to have the period of his imprisonment deducted from the period of imprisonment to be fixed on the last conviction.

Prom all the foregoing’ considerations, we are of the opinion that petitioner, Roy Williams, is unlawfully restrained of his liberty, and that he is entitled to a discharge from the imprisonment from which he complains.' He is therefore by the judgment and order of this court discharged therefrom.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    THEODORE PLESS v. STATE.
    No. A-9314.
    Jan. 21, 1938.
    (75 P. 2d 910.)

      J. Q. A. Harrod and Laynie Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was by information charged with the crime of murder; was tried, convicted of murder, and sentenced to life imprisonment; from which judgment and sentence he appeals.

An examination of the record, which contains 397 pages, clearly shows it is not necessary to set out in full the testimony, hut the substance of the testimony on behalf of the state as given by Iona Harkey, mother of the deceased, Dyris Pless, Evans Harkey, a brother of the deceased, and his wife Palmetto Harkey, and Emma Mae Harkey, sister of the deceased, which testimony is substantially the same; that on December 24, 1936, they were at the home of Iona Harkey, 1338 West Grand, Oklahoma City, Okla., that the house where Iona Harkey lived was a frame house and faced north, with a porch in front with steps leading up from the ground; there was a hallway in the building running north and south, and Iona Harkey lived on the west side of the house and occupied four rooms; the room back of the front room which was on the north was a bedroom and had a door leading from it into tbe hallway, and a door from the hall opened out on the porch.

About 10 o’clock on said evening, Dyris Pless, the deceased, came to her mother’s house and they were all in the bedroom discussing Christmas presents and exchanging one with another. Shortly after Dyris arrived at her mother’s home, the witnesses state they heard the defendant walk up on the porch, knock on the front door, and call for his wife Dyris; that Dyris immediately went to the front door and out on the porch, and immediately thereafter they heard three gun shots distinctly; they all went to the front porch and saw the body of Dyris Pless lying on the ground by the steps of the porch, and saw* the defendant running in a northeastern direction across the schoolyard and around the schoolhouse across the street. One of the witnesses picked Dyris Pless up and laid her on the porch, at which time her tarn fell off, and when the officers arrived the tarn was still on the ground. The police and an ambulance were called, and the ambulance took Dyris Pless to the Oklahoma City General Hospital, where aid was administered. Several police officers testified they were called to the scene; some of them arrived about the time the woman was being placed in the ambulance to. be taken to the hospital; that an empty shell was found on the porch and one on the ground, the shells were for a 32-caliber automatic, and fitted the .pistol taken off the defendant when he was arrested.

The officers testified they went to the hospital and talked to Dyris Pless, and she told them she was dying, and that her husband, Theodore Pless, was the person who shot her. The officers found the defendant about 12:30 or 1 o’clock the night of the shooting, and after the defendant was arrested and taken to the police station he made a statement that was signed by the defendant, which statement omitting the caption, and signature of the witnesses, is as follows:

“I, Theodore Pless, age 26, of 20 N. Brauer, make this statement of my own free will and accord, without being under threat or promise of any party or parties and after having been advised that what I say .herein may be used as evidence in the event criminal charges are filed.
“About 10 p. m. on the night of December the 24, I was at my house with my wife and Joe Edgeworth, a friend of mine came by and asked me to walk down to his brother’s house and back with him, which I did, telling my wife, Dyris Pless, that I would be back in about 15 minutes. In about 15 minutes I returned to find my wife gone. She left the fire and lights on so I figured she would be at her mother’s house, which is at 1338 W. Grand Ave., so I went over there to bring her home. When I walked up and knocked on the front door, they turned all the lights off in the house and would not come to the door as her mother does not like for me to come around her place. I waited a few minutes on the porch and then went back home. I stayed at my home for about a half an hour and then went back to my mother'-in-law’s house to get my wife. I knocked on the door this time off and on for about five minutes and no one would answer, although the kitchen light was on. I then said, ‘I know my wife is in there, and why don’t you come on out and let’s go home,’ and no one answered. Just as I started to turn and walk off the porch, I heard some one walking through the hall to the front porch where I was and as she opened the door I saw it was my wife. I then told her that she had heard me knocking the first time and she did not say anything. I then said ‘Well, come on let’s go home, you good and well know your mother and them don’t like for me to come here.’ She then said, ‘Well, I wasn’t doing anything.’ I then told her I was ready to go home and told her if she was not going I was going on. As I turned to walk off of the porch she grabbed me around the waist and went to tussling with me and we both fell to the porch and as we were scuffling and falling I pulled a 32 caliber automatic out of my pocket that I had gotten when I went home the last time and put in my pocket before I returned to get her. While we were scuffling on the porch I heard her folks running to the door, then is when I shot her with this automatic, two times is all I remember shooting her. When I shot her she turned me loose and I turned and ran, leaving her on the ground close to the edge of the porch.
“After leaving I went to my sister’s house on S. Ellison where she told me the officers were looking for me. I then went down the alley to go to my brother’s house on S. Klein, No. Ill, and as I started to walk up to the house from the rear one of the officers called me by name and I answered him, told him I had come to give myself up, whereupon he came and took the gun out of my pocket after he made me put up my hands and had asked me where the gun was and I told him in my pocket. They then brought me to the police station.
“When I got off work about 1 p. m., the day this happened, I went by a friend’s house on the way home and had one drink of whisky before I went home. I did not have any more to drink before or after this happened.
“Signed (sgd) Theodore Pless.”

Iona Harkey, mother of the deceased, was at the hospital and testified with reference to a dying statement made by the deceased. When asked why the defendant shot her, the deceased stated he did not have any cause to do it; she said, “He just asked me why I did not come when I was called; I said, ‘I did not hear you’; he just pulled his gun and went to shooting.”

To the same effect was the testimony of Palmetto Harkey as to the statement made by the deceased at the hospital in talking with Iona Harkey. The record further shows that testimony was given by Paul Jeter with reference to the dying statement.

P. L. Borden, testifying for the state, stated he was one of the officers who went to 1338 West Grand avenue, on the night of the shooting, and stated the deceased was shot twice in the abdomen, and described the location of the wrounds. The empty shells found at the scene of the accident were introduced in evidence.

Dr. Prank Harbison testified the patient was brought to his hospital after midnight:

“I operated on her and the patient expired the 27th, I don’t recall the hour, I think in the morning, the chart-gives the hour and date. The principal cause of her death was the wound in her breast, uncontrolled hemorrhage and rapid developed pneumonia; she died of the gunshot wound in her chest but the other gunshot wounds were, predisposing factors. The patient I am talking about is Dyris Pless.”

The defendant, testifying in his own behalf, stated:

“I am the defendant in this case. On the date of the shooting I lived at 20 North Brauer; my wife’s name was Dyris Pless; we had been married since August 4-, 1935. In 1936 we moved to Tulsa and lived there for a while; during the time we lived in Tulsa my wife shot me in the leg. Dr. Neal treated me; I was treated at the police station but later I was taken to the St. Johns Hospital. I have no children; my wife had two children, Wilbur D. Irvin and Adella Laverne Williams. The father of the boy is Nathaniel Irvin. Prior to- December 24, 1936, my wife and I had not had any trouble whatsoever. My wife threatened to kill me about three weeks before the 24th of December, 1936, I kind of feared her, in a way I did; we had not had a bit of trouble on December 24, 1936; I got off from work at noon; I know Joe and Les Edgeworth; Les lives south of me.
“Exhibit No. One is a pistol I bought at the O. L. Pawn Shop for my wife; she wanted a pistol and gave me- the money to buy the pistol; I bought it about two months ago. I have shot the pistol; I think it holds about nine shells. It was a 32 Liberty model. It will fire once or twice and then it will jam. The night of the difficulty Les Edgeworth borrowed the pistol and taken it home with him about 8 or 8:30 o’clock in the evening; later I went down to Les Edgeworth’s house and got the gun; I wrapped it up in a pocket handkerchief and stuck it down in my pants pocket and went over to my mother-in-law’s house; she lives at 1338 West Grand; her name is Iona Harkey.
“As I walked up on the porch, in this north room the door is facing the east, a light was in the front room and the window curtain was up at the door; I saw this boy, Nathaniel Irvin, and my wife in the front room; when I knocked on the door the light was pnt out; they did not let me in; I then went back home and turned the gas out in the room where we sleep and lit the oven in the kitchen stove and was going to cook our Christmas stuff that night. My wife was supposed to go to the Christmas tree; when I passed the church it was dark, there were no lights in the church; when I got back to my mother-in-law’s house the second time it was about 10 or 10:30; I walked up on the porch and knocked two or three times, directly I looked through this door that was facing north and saw a flash of light in the door when it was opened, and saw my wife walk out in the hall, another man came out with her; then I looked through the window and knocked again, I said I knew my wife ivas there, ‘Why don’t you let her out and let her go home?’ Directly she walked to the door. The man I saw with her was Nathaniel Irvin.
“When my wife came to the door and asked what did I want, I said, ‘Come on, let’s go home,’ she said, ‘Wait a minute,’ and I said, ‘If you are not going home I am going ahead, you don’t have to come now if you don’t want to.’ When I turned she cracked the door a little wider and pushed the screen back. As I turned to walk off the porch she fastened me around the waist and we went into a scuffle; the gun was in my pants pocket when she put her arms around me; when she hit that pocket she grabbed the gun. I have a sprained hand, I fastened my hand but didn’t have any grip; I turned and got the gun completely out; after she got the gun we scuffled off the porch, and she was around my waist and had the gun; when I fell off the porch she landed on top of me in front of the steps. We scuffled around three or four minutes, maybe five, I did not attempt to shoot her, nor did I go to the house with the intention of killing her. I don’t remember how many shots were fired, but I think there was two; she Avas standing and I was on my knees; after the shots I snatched the gun loose from her.
“The folks in the house came running to the door; I did not knoAv she was shot, I was so scared I did not know what was going on; they was all coming out of the house. I was arrested in the rear of 111 South Klein. I did not have that conversation with officer Barnett as testified to by him in this case.”

Some other testimony was introduced by the defendant with reference to the shooting, and also with reference to searching the room of the deceased the next morning and finding a letter in the glove of the deceased.

Les Edgeworth testified to borrowing the pistol the night of the trouble, but defendant came to his home about 10 p. m. the night of the trouble and got the pistol.

The foregoing is the substance of all of the testimony of the state and the defendant deemed necessary to be set out in this opinion.

Several errors have been assigned by the defendant as grounds for reversal of his case. The only assignment-argued by the defendant is assignment 9:

“The verdict and judgment is excessive and was incited by passion and prejudice of the jury which was induced by the prejudicial remarks of the county attorney and prejudicial evidence admitted by the court.”

Counsel for tlie defendant in their brief, after setting forth the testimony and facts as shown by the record, urge only that life imprisonment is excessive punishment, and argue at length that the judgment and sentence should be modified to 20 or 25 years.

Under the provisions of section 3204, O. S. 1931, of the Code of Criminal Procedure, 22 Okla. St. Ann. § 1066, this court in furtherance of justice has the power to modify any judgment appealed from by reducing the sentence. Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599; Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688.

The court only exercises that authority under the statute to modify the judgment when it is clearly shown that the ends of justice would be properly met by the imposing of a modified sentence on the defendant. The defendant in this case, in the judgment of the court, has not presented facts tending to mitigate his crime.

The record discloses that the deceased and the defendant were man and wife; that they had been living near the mother of the deceased; that in the evening of December 24, 1936, the deceased advised the defendant she was going to a Christmas program; that the defendant was away from home for some time and when he came back the deceased was not at home. During the early part of the evening the defendant had loaned to his neighbor a pistol he claims to have bought some time previous from a pawnship. After the defendant returned to his home and found the deceased gone, the defendant claims he went by the church where the Christmas program was to be held and found it was dark, and he then went to the home of his mother-in-law and knocked on the door and received no response.

Some time during the evening, the exact time is not clearly stated, be went to Les Edgeworth’s home and got the pistol be loaned to him and put it in bis pocket. The defendant claims be went back to bis home after bis first trip to bis motber-in-law’s place, and turned the gas out in the sleeping room and turned the gas on in the kitchen oven and was going to prepare their Christmas meal; he then went back to bis mother-in-law’s home and knocked on the door, and saw bis wife and a colored man by the name of Nathaniel Irvin come out of the room; bis wife came to the door and be asked her to go home with him, and she said, wait or something of the kind, and be told her if she was not ready she need not go, that be was going and turned to go off the porch and bis wife grabbed him around the waist and in the scuffle they both fell off the porch; that bis wife in the scuffle got bold of the pistol be bad in bis pocket and was on top of him, and about that time the family came rushing out from the inside and be shot twice as be remembered it. This evidence of the defendant was contained in a statement made to the officers.

In bis testimony on the trial be stated in the scuffle bis wife got bold of the gun and it was fired twice and she fell, and be snatched the pistol away from her and ran off, and was arrested later and incarcerated in jail.

The deceased just prior to her death, and while in the hospital, in talking to her mother and other friends, stated she did not know why her husband shot her, as he had no cause to do so. The defendant in his testimony states he and his wife had not had any trouble the day previous to the killing, and tries to make it appear that in the scuffle the shots were fired unintentionally, and says he had no desire to kill his wife and did not intend to kill her.

The acts of tbe defendant show a malicious and premeditated design on bis part, for tbe reason that be bad loaned Les Edgeivorth bis pistol, and when be went to- bis borne and found his wife gone he went and got tbe pistol and placed it in bis pocket, and then went to tbe borne of bis mother-in-law, and after some conversation with his wife on tbe porch, shot and killed her. There is not a single mitigating circumstance that tends in any way whatever to justify tbe actions of the defendant.

No authorities have been cited by either tbe defendant’s counsel or tbe state’s, and tbe only argument presented is tbe appeal of defendant’s counsel for a modified judgement.

He is represented by able counsel, and the record shows- that his case was properly tried. There is no complaint of any errors in the trial of the case sufficient to warrant a reversal. It is tbe opinion of tbe court that the facts are sufficient to have warranted tbe jury in returning a verdict sentencing the defendant to tbe electric chair. This court does not feel that there are any facts in tbe record to warrant it in modifying the judgment.

The judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    J. E. SCRIVENER v. STATE.
    No. A-9318.
    Jan. 28, 1938.
    (75 P. 2d 1154.)

      Homer H. Bishop, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Seminole county, rendered on a verdict convicting J. E. Scrivener on a charge that he did have in his possession “two' pints of whisky, one pint of alcohol and four pints of gin,” with the unlawful intent to sell the same, and fixing his punishment at a fine of $75 and confinement for 60 days in the county jail.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and relate to the rulings of the court in empaneling the jury.

It appears that the state relied for this conviction, upon the testimony of George Snider, deputy sheriff, the only witness testifying in the case.

He testified that he searched defendant’s place of business in the city of Seminole, directly across the street south of the post office, a cold drink, three-two beer place, known as the Derrick Bar; that Charley Cannon assisted him in the raid. That they found six pints of alcohol, gin, and whisky, one pint was open; that was all the whisky, the rest was alcohol and gin. That he knows the general reputation in that community as to the place for being a place where intoxicating liquor is kept and sold; and that is the reputation of the place.

On cross-examination he was asked if he knew how many pints of gin he found. He stated he did not remember; that he brought the liquor to the jail but did not mark it and did not know where any of it is now, and did not file a report in the county court of the amount of liquor seized.

When the state rested, the defendant demurred to the evidence. Demurrer overruled. Exception reserved.

It appears that Joe Irvine was convicted of a violation of the prohibitory liquor law by the verdict of the jury returned the day before the trial of this case commenced, and five of the jurors in the Irvine case were called as trial jurors in this case. On their voir dire each of these jurors was in substance a:sked this question : If the evidence should disclose that Mr. Irvine and Mr. Scrivener were partners in that place of business, you sat on the jury yesterday and convicted Mr. Irvine, fixing, as penalty a fine of |500 and six months in jail, now, you Avould say defendant is guilty and vote for conviction if they say they found that liquor there. Wouldn’t you?

Four jurors answered “No, sir,” and one, “Not necessarily.”

The court overruled the challenges for cause.

The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual or implied bias; also to enable the defendant to exercise intelligently his peremptory challenges. Our Procedure Criminal provides that, upon the trial of a challenge, the juror challenged may be examined as a witness to prove or disprove the challenge, and is bound to answer every question pertinent to the inquiry. Section 3003, 22 Okla. St. Ann. § 665. Under the statute the defendant had the right to ascertain, by appropriate questions, the effect or influence, if any, the hearing of the tetimony in the Irvine case had upon the minds of these jurors, where such testimony might reasonably be expected to be introduced on the trial of this case.

Upon a careful examination of the record, we have reached the conclusion that thq jurors who had agreed to a verdict of guilty in the Irvine case were not impartial jurors, under the meaning of our Constitution, article 2, § 20, and that it was a manifest abuse of discretion to overrule the challenge to said jurors on the ground of implied or actual bias. Under the Constitution and laws of this state, it is a fundamental principle that fairness and impartiality are prerequisite qualifications in all jurors who are called upon to try a defendant in a criminal action, and no jury can in truth be said to be fair and impartial when this principle has been transgressed in selecting such jury.

Section 2997, Procedure Criminal, provides, 22 Okla. St. Ann. § 659:

“Particular causes of challenge are of two kinds :
“1. For suck a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this chapter as implied bias.
“2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, Avhich satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias.”

It may be possible that a juror may be so peculiarly constituted that the rendition of his verdict in the one case would have no influence upon his action in the other, but this question must be disposed of upon the assumption that all jurors possess the characteristics common to ordinary men. A fair trial cannot be had except by an unbiased jury, and jurors who have passed upon the credibility of witnesses in the one case are disqualified and incompetent as jurors in a case where the same witnesses will be called to give the same testimony on an issue the same in both cases. Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733.

The competency of a juror is, under the statute, a question to be determined by the court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.

The fact that these jurors stated on their voir dire that they formed no' opinion as to the guilt or innocence of the defendant and that they could and would act impartially and fairly upon the matters to be submitted to them, was wholly immaterial.

They could not be the judges of their own impartiality. They had received the evidence in the former case in the most solemn form and rendered a verdict. They had thus formed and expressed an opinion on some of the facts, including the general reputation of the place of business of both defendants as partners, on which this defendant was to be tried, and were therefore disqualified. Our construction of the statute is that when the opinion is formed in this manner — that is, from hearing the facts of the case testified to', the juror is incompetent.

It has been the uniform holding of this court that, whenever the fairness and impartiality of a juror are called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the accused. Temple v. State, supra.

A fair and impartial trial is guaranteed to all persons whether guilty or innocent, and it is the duty of the trial court to uphold this guaranty.

It is evident from the record that the defendant was not accorded a fair and impartial trial within the letter and spirit of the Constitution and laws of the state.

The judgment appealed from is therefore reversed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    GERALD BELL v. STATE.
    No. A-9319.
    Jan. 28, 1938.
    (75 P. 2d 1157.)
    Con Long and Homer Bishop, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Joe Irvine with possession of intoxicating liquors, with the willful and unlawful intent to sell, give away, or otherwise furnish, contrary to law. He whs tried separately, convicted and sentenced to pay a fine of $250, and to be confined in the county jail for 90 days, from which judgment and sentence the defendant has appealed.

It is not deemed necessary to consider the evidence in this case for the reason that when the case was called for trial the attorney representing the defendant, Con Long, filed a motion for a continuance, which is as follows:

“Comes now the defendant and moves the court to continue the trial of the above-entitled cause now set for the 14th day; of December, 1936, for the reason that Con Long, attorney'of record for the defendant, Gerald Bell, is serving as a member of the Legislature of. the State of Oklahoma, how in session, and that he has been unable to prepare this case for trial.” '

This motion was supported by a statement from Homer Bishop, a member of the Bar of Seminóle county, as to Con Long being the defendant’s attorney, and that Mr. Long had telephoned báck and forth to him, and sent the motion for continuance down to be filed which is set out in this opinion. Joe Irvine had employed Mr. Long to defend the defendant and himself.

The defendant was placed on the stand and testified that he did not have enough money to pay a lawyer, but testified he went with Mr. Irvine to Mr. Long’s office and Irvine hired Mr. Long to defend them; that he himself did not hire Mr. Long.

It is not disputed by the state that Mr. Long, represented the two defendants named in this information, and that Joe Irvine had employed Mr. Long to defend Gerald Bell and himself.

The motion for a continuance on the ground that his attorney of record, who was employed prior to the convening of the Legislature, and who was a member of the Legislature, was denied, and the defendant was forced to trial, resulting in a conviction. The motion for continuance was denied and the defendant reserved an exception.

Section 1, of the Session Laws 1935, c.- 2, art. 1, found on page 2, 12 Okla. St. Ann. § 667, in part is as follows:

“The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such fact shall constitute cause for continuance of the case, and all motions, demurrers and preliminary matters to be heard by the court, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right.”

The defendant has set out several grounds of error, but it is only necessary for this court to consider one question for the purpose of determining the issues in the case.

The facts in the case appear to be that the defendant was charged with the offense on the 29th day of August, 1936; and shortly thereafter one of the defendants informed against in this case hired Con Long to defend the defendant and himself; that the attorney was hired to defend the parties prior to the convening of the Legislature, and it is undenied by the state that when the motion for continuance Avas filed on the ground that Con Long was a member of the Legislature, the Legislature was in session.

In support of his motion, Homer Bishop, an attorney and member of the bar of Seminole county, in open court Avhen the motion for continuance was filed, stated to the court the reason why the attorney for the defendant, Con Long, was not present.

Under the provisions of section 1, Session Laws 1935, supra, it is mandatory on the court to grant a continu-anee when it is made to appear to the court that Con Long had been employed prior to the convening of the Legislature; and that at the time set for the trial of said cause said Long was in attendance of a session of the Legislature. The purpose of this statute is to encourage members of the bar to become candidates for the lawmaking body of the state, and for the further purpose to protect a defendant whose attorney is familiar with his case and could not attend his trial for the reason of official duty; and for the further purpose of protecting members in their business while serving, the state in this capacity by permitting trials to be continued during the session of the Legislature and for ten days thereafter; that during the attorneys’ service they should not be disturbed in their duties as lawmakers. The privilege of the continuance applies to the defendant whose attorney of record is a member of the Legislature. Upon the facts presented in this case which were undisputed by the state, the defendant’s application entitled him to a continuance as a matter of law, and it was reversible error for the trial court to refuse such continuance.

Other errors are assigned by the defendant, but the view we take of this record, it is not necessary to pass upon them. Where one is charged with a crime, he is entitled to a speedy trial and it is the duty of the court to see that the case is tried, as soon as convenient, but, under the laws of this state, members of the Legislature who have been employed to defend men charged with a crime prior to the convening of the Legislature are entitled to the benefit of that statute, and upon a showing made the case should be continued until the session of the Legislature has closed and for ten days thereafter.

For the reasons stated, this case is reversed and remanded, with directions to proceed in the case in accordance with this opinion.

DOYLE and BAREFOOT, JJ., concur.


text:
    RUTH KETCHAM v. STATE.
    No. A-9333.
    Jan. 28, 1938.
    (75 P. 2d 1159.)
    J. Q. A. Harrod and Laynie Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error in this case, hereinafter referred to as the defendant, was by information charged with the possession of six pints of intoxicating liquor with the unlawful intent to willfully and wrongfully barter, sell, give away, and otherwise furnish the same to divers persons; was tried, convicted, and sentenced to pay a fine of $50 and to be confined in the county jail of Oklahoma county for 30 days, and has appealed.

When the case was called for trial, the defendant objected to the introduction of any testimony on the part of the state, for the reason that the officer did not have a search warrant for the person of the defendant, or a search warrant for the automobile, and that all the evidence obtained by that search and seizure was obtained unlawfully and in violation of the defendant’s constitutional rights, and in violation of the laws of the state of Oklahoma.

The officer making the arrest was questioned in support of the objection of the defendant and stated he did' not have a search warrant when he arrested the defendant, and he did not have a search warrant for the automobile in which she was riding. The objections of the defendant were overruled and the testimony on behalf of the state was introduced as follows:

George Kerr stated he was deputy sheriff, and on the 31'st day of October, 1936, he had occasion to be at or near the place where the defendant lived for about an hour and. a half.

“Eight cars came up and stopped, and she came out and left and I followed her to Fifty-Fourth and High; on Fifty-Fourth street she got out and went in, and, when she came out I stopped them on Forty-Eighth and Stiles. She did not tell me where she had been until after she got out of the car. I searched the car and found six pints of whisky. She told me the boy with her had nothing to do with the whisky.”

On cross-examination witness stated positively he did not have a warrant for her arrest at the time he stopped her, nor did he have a warrant to search the automobile in which she was riding, or a warrant to- search her.

The defendant in her first and second assignment of error argues that the court erred in overruling her objections to the introduction of the testimony of George Kerr, and that the court further erred in refusing to strike from the record the testimony of the witness George Kerr concerning what he saw by reason of the search and seizure because the officer had no warrant for the defendant’s arrest, and no search warrant for her person or automobile in which she was riding. And that the judgment of the court in finding the defendant guilty is contrary to- the evidence, and that the trial court erred in overruling her motion for a new trial.

It is admitted by the officer that the defendant in this case was driving along the public streets of the city of Oklahoma City, and that he was without authority to search the defendant, to arrest the defendant, or to search the car in which the defendant was riding; that he stopped the car and had her get out and searched the car.

At the close of the state’s testimony the defendant renewed her objections to- the introduction of the testimony, which was overruled by the court.

The defendant demurred to the evidence and. moved, the court to- render a verdict of not guilty in her favor, which demurrer was overruled and exceptions duly saved.

The question in this case is one that has been before this court so often that it seems like the officers would respect the law and holdings of this court, and, when they desired to search parties driving along the public streets and highways, and do not see them committing an offense, they would procure a search warrant, or a warrant for their arrest if they know of any crime they have committed and not openly and flagrantly violate the law by stopping cars and making parties get .out and searching, the cars.

The officer making the arrest in this case is an officer that has been serving in different capacities for a number of years, and tries to justify his act by testifying to statements made to him by the defendant, but the record is clear from the officer’s testimony that at the time he stopped the car and arrested the defendant and searched the car he had not seen the defendant committing any offense, and that he did not see any whisky in the car, and that he arrested the defendant without any legal authority. He gives no reason why he followed the car the defendant was driving, or why he stopped the car on Forty-Eighth and Stiles and searched it.

In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, this court in the first paragraph of the syllabus stated:

“Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.”

In the second paragraph of the syllabus the court further stated:

“Where the officer does not know of the act constituting the offense it is not committed in his 'presence.’ ”

In the fifth paragraph of the syllabus the court further stated:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.” Strong et al. v. State, 42 Okla. Cr. 114, 274 Pac. 890.

In Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219, in the second paragraph of the syllabus the court said:

“The search of the car without a warrant of arrest or search warrant, or knowledge by the officer that it contained whisky, held illegal, and evidence should be excluded upon timely objection.”

In Bowen v. State, 50 Okla. Cr. 36, 295 Pac. 623, the court in the syllabus said:

“A search of an automobile without a search warrant and not as an incident of a legal arrest, not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of article 2, § 30, .State Const., and evidence obtained by such a search is inadmissible.” Mosier v. State, 59 Okla. Cr. 106, 56 P. 2d 908.

We have no- doubt that the search of the defendant under the circumstances in the record is unlawful. Some things are to be inore deplored than the unlawful sale of intoxicating liquor, one is the loss of liberty, common as the event may be; it is a serious thing to arrest a citizen, and it is much more serious to search a person or car, and whoever accomplishes it must do- so in conformity with the laws of o-ur state. There are two reasons for this, one is to avoid bloodshed, and the other to preserve the liberty of the citizen.

The demurrer of the defendant and her motion for a directed verdict should have been sustained. There being no evidence in the record other than that procured by tbe unlawful search and seizure, the judgment of the trial court is reversed.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    ERVAN WORK v. STATE.
    No. A-9293.
    Jan. 28, 1938.
    (75 P. 2d 1161.)
    Justin Hinshaw and Tom W. Cheatwood, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Aubry C. Moses, Co. Atty., for the State.
   BAREFOOT, J.

Defendant was charged with the crime of rape in the first degree in Cleveland county, was tried and convicted of assault with intent to rape, and was by the court sentenced to serve a term of one year in the reformatory at Granite, and has appealed.

The facts in the case are that defendant, who was 19 years of age, was charged with rape by force on July 21, 1935, upon one Yera Waldon, 21 years of age. Both the defendant and prosecutrix lived in tbe Box community-in the southeast part of Cleveland county. On the evening of July 21st, which was Sunday, prosecutrix attended services at the Box church. A friend and neighbor of hers, Mrs. Flora Boggs, also attended the services and had with her her small three-year-old child.. During the services and about 9 o’clock the child wanted a drink of water and Mrs. Boggs asked prosecutrix to go with her for the purpose of securing the same. They left the church to go- to a grocery store owned and operated by Clark and Mary Carruthers and which was located about 300 yards west of the church. When they had gone not quite half of the distance, they met defendant and a boy by the name of Jesse Potter. This party said: “Let’s walk with you.” He had been drinking and defendant-had left the church for the purpose of taking care of him. Prosecutrix replied that they did not know him, but the evidence shows that they walked on toward the store; the defendant, Ervan Work, walking with prosecutrix, and Jesse Potter with Mrs. Boggs. Jesse Potter was drinking and wanted to carry Mrs. Boggs’ baby, and there was some discussion with reference thereto. They arrived at the store and remained there a few minutes after drinking soda pop which the defendant purchased. Mrs. Boggs whispered to prosecutrix and they immediately started back toward the church. Defendant started back also, and walking with prosecutrix and holding her by the arm. Mrs. Boggs went on ahead, and Jesse Potter hollered at defendant to catch his girl, she was getting away. Mrs. Boggs ran on ahead and left defendant and prosecutrix behind. Jesse Potter remained at the store. Two residences were located between the church and the store. The one on the north side was the home of Jim Potter and his family, and the one almost opposite and on tbe south side of the road was the home of E. E. Webb and family.. Up to this point the evidence of prosecutrix and defendant is identical. Prosecutrix testified that when they reached a point opposite the Jim Potter home, the defendant said: “Let’s go in and see Jim.” She said: “Jim isn’t home.” She had seen him and his family at the church services. There was a turnstile at the entrance to Jim Potter’s home, and when prosecutrix told him he was not at home defendant grabbed her around the waist with both hands and carried her into the yard; that she begged him to turn her loose and told him if he did not she would scream, and defendant said: “Yes, and I’ll kill you.” That because of his strength she was not able to get loose; that she was afraid that he would carry out his threat to kill her; and that he threw her down on the ground and had intercourse with her. Her testimony was that immediately thereafter she started down the road to the store, and that she saw defendant going toward the store along the inside of the fence, and that when she arrived there she saw May Carruthers, Clark Carruthers, also her brother, Ira Waldon, Donald Mantooth, and Eaymond Douglas, who were at the store when she arrived; that she immediately told May Car-ruthers in the back room what had happened, telling her a part that night and a part the next morning; that as she went home that night, after the church services, she told Flora Boggs about it the first time she had a chance to talk to her privately; that she told her mother about it that night when she returned home and her father when he returned home the same night. Her underclothing were exhibited to the jury and were torn and stained. She testified that they were clean and in good condition prior to the assault made by the defendant. Some of the witnesses at the store testified that her clothing was disarranged and her hair disheveled, and that she was crying when she came to the store. Others testified that they did not notice her clothes being dirty or her hair being disheveled or did not notice her crying.

May Carruthers, the first person with whom prose-cutrix talked after the attack, testified for the defendant. She testified that prosecutrix was not crying when she came in the store, and she did not notice her clothing being disarranged, bnt said: “Her hair was tousled a little.” ,She further testified as follows:

“Q. Did Vera Waldon tell you anything at that time about being assaulted by Ervan Work? A. No, she didn’t say he insulted her. Q. What did she say? A. She just-said she was mad. I said, Who are you mad at?’ She said she was mad at Ervan. Q. Did she say what she was mad at him for? A. No, she asked me could she stay there until church was over, she didn’t want to go back up tkére. Q. She did stay there? A. Yes, sir, she did. Q. She tell you that anything had happened? A. Not that night. Q. She did return the next morning? A. Yes. Q. What did she tell you about it next morning? A. She said he insulted her. Q. Did she say ‘insulted’? A. She didn’t put it that way, she didn’t say ‘insulted.’ Q. Tell any other way she said it. A. She said Ervan didn’t treat her very nice, they had a big rookus, he tried to have intercourse with her. When she first told me, I said: ‘Did he?’ She said, ‘No.’ Then she kept talking. She was there a couple of hours I guess, maybe longer. She said: ‘Well, I’m going to tell you the truth, he did.’ Q. She first told you he didn’t? A. Yes, she did. Q. Did she tell you anything about having promised Ervan she would have intercourse with him? A. Yes, she did. Q. When did she tell you that, that morning? A. Yes, sir. Q. That she had promised previously that she would have intercourse with him? A. Yes, she did.”

On cross-examination, she was asked:

“Q. I will ask you if you didn’t have a conversation with John Blackburn on Tuesday following this Sunday morning, in which you told John Blackburn in these words, or in substance — at your store, there at Box, in which you told John Blackburn ‘that Vera Waldon came in here Sunday night crying, she was all mussed, her clothes were dirty and told you that Ervan Work had attempted to rape her? A. No, I didn’t tell him them words at all. Q. What did you tell John Blackburn? A. I don’t remember what words I used, but I didn’t use them kind of words. Q. When did you have that conversation with him? A. I don’t remember, but it was after this happened.”

John Blackburn testified that the witness May Oar-ruthers told him on Tuesday morning, following the Sunday night on which this occurred, in substance, that:

“Q. I will ask you if you didn’t have a conversation with her in which she said in substance: ‘Vera came into my house Sunday night, her hair was all ruffled or mussed up, her' clothes were dirty and torn and her face was dirty, and I helped wash her up and that Ervan Work had assaulted her, and that he ought to be killed and shouldn’t be allowed to live.’ Did she tell you that? A. You’ll have to talk * * * Q. Did she say those words to you or that in substance? A. In substance — wasn’t exactly the same words.”

Mr. C. I. Adams testified as follows:

“Q. I will ask you to state whether that conversation wasn’t in these words or in substance — ‘Vera came into my house — ■ That Vera came into my house last night, I never saw more disheveled, more ruffled clothing, and hair than she had and if he had done that he was onery, dirty and ought to be prosecuted?’ A. Yes, sir. Q. That is what she told you that night? A. Yes, sir. By the Court: Q. When did she tell you that? A. Next morning after this offense was committed.”

Kee Durkee, a deputy sheriff, testified as follows:

“Q. Did you bave a conversation with Mrs. May Car-ruthers in front of her store on that morning? A. Little past in front of the store I had a conversation with her. Q. In which she said that ‘Vera came into my house last night and I never saw more disheveled or more ruffled clothing on a person or more ruffled hair than she had' and that if Ervan had done that he was onery and dirty and ought to be prosecuted?’ A. Correct. Q. That was the conversation she had with you? A. Yes, sir.”

The evidence further revealed that the defendant left the community the day following the occurrence, going into different parts of Oklahoma, to California and Texas, and finally being located at Shidler, Okla., where he was working for an oil company under the name of Buck Hershel, on November 1, 1935.

Prosecutrix was examined by Dr. J. B. Lambert, of Lexington, who testified as a witness. He said he noticed a discoloration on one side of her neck. She had testified that defendant had bit her on the neck. Dr. Lambert’s.testimony was as follows:

“Q. Go ahead and describe to the jury the condition you found in the vagina of this young lady. A. I didn’t find any pathology around in the vagina or about the vagina or about the vulva at all and I could barely admit one finger through the hymen. Q. Had this young lady had complete intercourse then at that time, in your opinion? A. In my opinion she had never had complete intercourse at that time. Q. Could you tell whether or not- she had partial intercourse? A. There was no recent evidence or damage to the hymen. The hymen barely admitted one finger. Q. Then would you say if there was intercourse or penetration, it had been up to the hymen and not completely past the hymen, is that right? A. Yes, sir.” •

Cross-examination by Mr. Cheatwood:

“Q. Did you make any further'examination-except just' her private parts • there to determine whether she had been recently attacked or raped? A. I examined the vulva and the lips all around there for evidence of any bruises. Q. Did you find any? A. I did not. Q. Did you prescribe any treatment for her that you now remember of? A. I don’t recall that I did. I’m not positive.”'

Redirect examination by the-county attorney:

“Q. Dr. Lambert, say that on' Sunday night, July 2lst, 1935, Avlien your examination occurred -on Tuesday afternoon the 23rd, could it have been possible that this girl could have- been attacked to such extent that there was some penetration to have caused some bleeding, around the private parts and not have been discernible at the time of your examination? A. No, sir, I think not. Q. You didn’t find any evidence of that? A. No, sir. Q. Wouldn’t it be possible that there could be some slight laceration there to have produced some amount of blood' and not be-discernible the following Tuesday, had-it occurred oh Sunday? A. It is possible that a slight laceration could have occurred and be overlooked. A laceration of any consequence would not have been overlooked.”

Recross-examination by Mr; Oheatwood:

“Q. I' will ask you, from your learning as a physician- and observation of patients from time to time,- especially-, the private parts of females, in your judgment would it be possible or probablej that an assault to rape by a man of the size of the defendant in this case, this young man here, could have been perpetrated upon a female of the age and size of Vera Waldon, the young lady here, you know her? A. Yes, sir. Q. Could be done to the extent you found it without — and it be done by forces — without' tearing' the hymen all up, rupturing it completely — do you think that could be done? A. I don’t'know, I don’t-think it would have been possible for anyone, a grown individual, to have had complete sexual intercourse with this girLwithout having produced more damage than was evidenced.”

Prosecutrix’s testimony was further corroborated by her brother, mother, father, and sister, and by Mrs. Flora Boggs.

Defendant testified in his own behalf and denied that he had used any force in having intercourse with prosecu-trix, but- that it had been voluntary and agreeable upon her part; that she had made prior promises and had fulfilled them on the night of July 21st. He explained his flight by testifying that he did not desire to be arrested and suffer the humiliation of a trial upon a charge of which he was not guilty. In reference to using an assumed name he said this was done for the purpose of holding his job. He testified to his marriage subsequent to this occurrence, and other witnesses contradicted certain testimony of the prosecutrix, and he also introduced witnesses who testified to Ms previous good character and reputation. It will thus be seen that there was a direct conflict in the evidence. Under the evidence of prosecutrix, defendant was guilty of rape* by force and his punishment could have been assessed under the law at death or not less than 15 years in the penitentiary. Under defendant’s testimony he was not guilty. If no force was used and the prosecutrix had voluntarily submitted to the act of intercourse, then he was not guilty of rape by force. The jury were the final arbitrators of his fate. They saw and heard the witnesses, observed their demeanor upon the stand. They had the best opportunity to' judge the truthfulness of the statements of those witnesses. They were from the home county of both the parties, and under the law their judgment ought to be final. They found the defendant guilty of assault with intent to commit rape, and left the punishment to the court. The court assessed punishment at one year in the reformatory. The defendant has been ably repre-. seated. His defense was placed squarely before the jury, and they decided the issue against him. Under tbe law and facts be could have been given much more severe punishment. He has received a fair and impartial trial, and therefore the judgment of the district court of Cleveland county is affirmed.

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


text:
    JAKE HAFF v. STATE.
    No. A-9297.
    Jan. 28, 1938.
    (76 P. 2d 276.)
    Theo. D. B. Frear and S. F. Parks, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Upon an information charging that on or about the 31st day of October, 1935, in Craig county, Jake Haff did unlawfully and feloniously commit an assault upon the body of one O. Stanislaus with a pocketknife, with a long sharp blade, said knife being a deadly weapon, and did then and there with said knife stab, wound, and injure the said O. Stanislaus, in the manner reasonably calculated to produce the death- of said' O. Stanislaus, with the felonious intent then and there to kill the said Stanislaus, he was tried and the jury found him guilty of assault with a dangerous weapon, fixing his punishment at confinement in the state penitentiary for a term of two years.

From the judgment rendered on the verdict October 6, 1936, an appeal was taken by filing in this court on April 3, 1937, a petition in error with case-made. No brief has been filed and no appearance made on behalf of plaintiff in error in this court.

In cases of this kind, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred' in its rulings during the. course of the trial. However, it appears that the evidence gives full support to the verdict. We have examined the information, the instructions given by the court, to which no objection or exception was made or taken, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

The judgment of the district court of Craig county is therefore affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    EDISON ANDERSON v. STATE.
    No. A-9316.
    Jan. 21, 1938.
    Rehearing Denied Feb. 4, 1938.
    (75 P. 2d 914.)
    Robt. W. Hoyland, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., C. E. Barnes, Co. Atty., and Sam K. Abrams, Asst. Co. Atty., for the State.
   DAVENPORT, P. J.

The plaintiff in error, Edison Anderson, whs by information charged with the possession of spirituous liquor with intent to sell, barter, or give the same away; was tried and convicted by a jury, and his punishment fixed at a fine of $100 and to be confined in' the county jail for 45 days. Motion for new trial was filed, considered, and overruled, and the defendant appeals.

The testimony of the state in substance is that the sheriff of Logan county secured a search warrant which described the premises to be searched as lots 5 and 6, in block 88, in the city of Guthrie, Logan county, Okla. The return of the sheriff shows he searched the place described in the search warrant and seized 12 pints of whisky, one bottle of peach liquor, and three bottles of slo gin.

The affidavit for the search warrant, the search warrant, and the sheriff’s return are incorporated in the case-made, but there is nothing in the record showing, that either the state or the attorney for the defendant introduced or caused the same to be incorporated in the record.

At page 22 of the case-made appears the following stipulation:

“It is hereby stipulated by and between the county attorney, C. E. Barnes, and the defendant by his attorney, Robert W. Hoyland, that the telephone listed in the telephone city directory of 906, in the name of Doe Anderson, is the defendant in this case; and, it is further stipulated that the premises described as 415 East Grant, on Lots 5 & 6, Block 88, East Guthrie, are owned by H. M. Adams, and rented to the defendant Doe Anderson, and were so rented to Doe Anderson, on the 4th day of May, 1936.”

The testimony of the state shows that the premises the sheriff searched were the premises described in the search warrant as lots 5 and 6, block 88, the property that it was stipulated the defendant had rented or leased at the time of the search. The testimony of the officer shows that the time the search was made there was a young man at the house by the name of Byron Anderson, who was a nephew of the defendant. That the officers found twelve pints of whisky, one pint of peach liquor, and three pints of slo' gin at the place where it was stipulated the defendant at the time had rented. The state’s testimony conclusively shows that at the place searched by the officers they found a larger quantity of whisky' than tbe defendant was entitled by law to have in his possession.

The testimony also shows this property was rented by the defendant at the time it was searched; it is also shown by the testimony that at the time the officers made the search they fonnd in the house a 45-caliber pistol and some men’s clothing, and they took the same to the sheriff’s office. Later on, the defendant came and wanted the pistol, saying it Avas his, and that the clothes belonged to him.

It is not deemed necessary to further set out the testimony of the state, and as the defendant did not offer any testimony, we hold that the testimony of the state is amply sufficient to sustain the verdict and judgment.

There is no evidence in the record showing that the defendant was a bootlegger, or that people congregated in any number around this place the defendant had rented.

Considering the testimony of the state, the court is of the opinion that a fine of |50 and 30 days in jail is ample punishment for this defendant, that the punishment of $100 and 45 days in jail should be modified to $50 and 30 days in jail, and, as modified, the judgment-should be affirmed. It is so ordered.

DOYLE and BAREFOOT, JJ., concur.