text:
    GEORGE BLISS v. STATE.
    No. A-7338.
    Opinion Filed May 2, 1930.
    (287 Pac. 778.)

      M. L. Minton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted for the larceny of a cow, and was sentenced to imprisonment in the state penitentiary for .five years. Motion for a new trial was filed, considered, and overruled, and the defendant has appealed to this court.

The state, to sustain the allegations of the information, called Eli Smith, who testified that “on or about the 12th day of October, 1927, I lost a Durham-Herford cow from my pasture in Beckham county, Okla. My pasture adjoins Bert Everett’s. I had 25 or 30 head of cattle in the pasture at the time I lost the cow; I found tracks of two horses, a cow, and a man’s track, where they crossed the fence on the west side of my pasture; the tracks turned south after they got out of my pasture. Mr. Baker lives south and Mr. Bullard about a mile south of my pasture. The cow was taken without my knowledge or consent.” On cross-examination witness stated:

“I am not positive how long the cow has been taken before I missed her. X live four miles north of the pas-' ture. No gate between my pasture and Everett’s pasture, but the fence was down where I found the tracks of the two horses, the cow, and the man. Mr. Bullard has a pasture about a half mile south of mine.”

W. L. Mooney, called as a witness for the state, in substance stated:

“I am 61 years of age. I knew the defendant in October, 1927. We have been together a right smart. I saw the defendant about October 12, 1927. I went to his house on South Elm about six or seven miles southwest. of Everett’s pasture. Two or three days before I went to defendant’s house I talked with Mr. Everett about a stray cow in his pasture. The defendant and I went up to the Everett pasture and got the stray cow to sell. I did not know whose cow it was. We drove the cow a little west into the Smith pasture, a little southwest from the fence into the lane, then about a quarter of a mile south, and turned west into' a canyon and went near the defendant’s house, taking the cow along. We took another cow from Baker’s pasture; we took the two cows to- the defendant’s pasture around the river below the old Buckles ranch, and from there to Texas, putting them in Tom Wall’s pasture. I agreed with the defendant to sell the cows, and told the defendant I would be back in two or three days; I sold the cows to Clyde Bridges, at Shamrock, put the money in the Erick Bank, and gave the defendant a check for his half; have been convicted of receiving stolen property, but did not serve a term.”

On cross-examination witness stated he was under indictment in Texas for cattle theft; “that the prosecution in this case had said nothing to him about giving me immunity if I testified for the state in this case.” Witness then goes into detail as to the route he and the defendant traveled after they started with the cow from Everett’s pasture until they arrived in Texas and sold the cow and deposited the money in the bank and gave the defendant a check for it.

H. B. Bullard testified:

“I know Bert Everett and Eli Smith. I was living about a mile south of the Smith pasture in October, 1927; saw Mr. Mooney and the defendant pass through my pasture going north; this was about the 15th day of October, 1927. They were about a quarter of a mile away from me, on horseback. . They looked at a mare and colt that belonged to me, and then went out of sight into Mr. Baker’s place. Going north, Mr. Everett’s pasture is a half mile north and a half mile west. They were just a half mile from Mr. Smith’s pasture when I saw them.”

On cross-examination witness stated he was about a quarter of a mile away from the parties; that he saw their faces, and knew it was Mr. Mooney and the defendant.

Harper Baker also1 testified that he knew Eli Smith and M. L. Mooney; he saw the defendant and Mooney about the time the cow was alleged to have been stolen; they were about a half mile from him, going north. Herman Hart testified about the time the cow was taken he saw two men come through his pasture; they were on horseback, driving a cow or two, traveling south and west. He was not close enough to see who they were. “This was just before I learned the Smith cow had been taken.” This is in substance the testimony that was introduced by the state.

At the close of the state’s testimony, the defendant demurred to the testimony, and moved the court to direct a verdict in favor of the defendant, for the reason that the testimony is insufficient in law to prove that an offense had been committed against the laws of the state of Oklahoma, or that the defendant had anything to do with the commission of said offense, if any offense .was committed, which motion was heard by the court and overruled, and defendant saved an exception.

Twelve errors are assigned by the defendant alleged to have been committed by the trial court in the trial of his case; the eleventh assignment being that the verdict of the jury was not supported by the evidence, in that there was no evidence corroborating the accomplice’s testimony, which tended in itself, without considering the accomplice’s testimony, to connect the defendant with the commission of the offense.

The question to be considered is whether or not there is sufficient testimony in the record corroborating W. L. Mooney, who is admitted to be an accomplice of the defendant. Mooney detailed all the facts and circumstances concerning the taking of the cow, and in doing so he described the manner in which they went to the Smith pasture and the route traveled in returning with the cow from the pasture. Bliss told Mooney about the cow being in the Everett pasture, and the defendant, Bliss, told him that Everett stated the cow was a stray. The witness Everett testified that Bliss was the only person he told about his cow being in the pasture. The other witnesses, Bullard, Hart, and Baker, saw the defendant and Mooney riding in the direction of the Smith and Everett pastures about the time the cow was missed. Hart could not identify the defendant and Mooney as being the parties he saw riding toward the. Smith and Everett pastures, but Bul-lard and Baker did identify them, and shortly after they were seen going in the direction of the pasture Hart testified he saw two men on horseback returning with a couple of cows. The testimony of the accomplice, Mooney, shows they got one of the cows in the Everett pasture and passed out through the Smith pasture at the southwest corner, weighting down the Smith fence so they could cross over it. Mooney says they went on to the Baker pasture and got another cow. Smith, the owner of the cow taken from the Everett pasture, tells where the fence was taken down at the southwest corner, where he saw the tracks of two horses, a cow, and a man.' No testimony is offered by the defendant contradicting any of the testimony of the accomplice, Mooney, or the other witnesses who testify in the case. The testimony is undisputed that the day the cow was taken Mooney was at the home of the defendant, and that he and the defendant were seen together going in the direction of the Smith and Everett pastures. Shortly thereafter the cow described in the information and the proof was missed from the pasture. Eli Smith was the owner of the cow, and that the party was tracked out of the pasture where the witness Mooney says they went out, about the same time the two parties unidentified by the witness Hart were seen driving two cows coming from the direction of the Smith pasture.

In order to sustain the conviction, there should be testimony independently of the accomplice’s testimony tending to connect the defendant 'with the commission of the offense. It is not sufficient that the testimony independent of the accomplice’s testimony show the commission of the offense. It must show more than the mere commission of the offense or circumstances thereof.

In Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, in the first, second, and third paragraphs of the syllabus,. the court said:

“1. Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“2. Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“3. It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

The contention of the defendant is that there is not sufficient corroboration of the accomplice’s testimony to justify a conviction, and has cited a long line of authorities showing that an accomplice must be corroborated. We cannot agree with the contention of the defendant. Independent of the testimony of W. L. Mooney connecting the defendant with the commission, of the crime, the record discloses a number of circumstances which, when considered together, in our opinion, also tend to connect the defendant with the crime. Standing alone, these independent facts and circumstances would not be sufficient-to authorize a verdict of guilty, but, under our statute, the corroboration of the accomplice does not have to be sufficient to establish the guilt of the defendant beyond a reasonable doubt. It is sufficient if it tends to connect the defendant with the commission of the offense. These independent facts and circumstances must go farther than a mere proof of the commission of the offense, or proof of the circumstances surrounding its commission.

After a careful study of all the testimony contained in the record, we hold that the testimony of the accomplice, W. L. Mooney, is sufficiently corroborated, and that the evidence is sufficient to sustain the conviction. Counsel for the defendant in his brief argues the instructions of the court were prejudicial to the rights of the defendant. After a careful reading of the instructions, we conclude that the instructions taken together are fair to the defendant and correctly stated the law; if anything, they were more favorable to the defendant than to the state. It is also urged by the defendant that the attorney for the prosecution in his closing argument made an improper argument. The closing argument of the attorney for the state is reported in full in this record. We have studied this argument, and we cannot find any statement contained therein that we consider improper or outside of the record. In summing up the testimony, the state’s attorney used a great many illustrations, but we hold these were not improper and did not redound to the prejudice of the defendant.

Finding no fundamental or prejudicial errors in the record possessing sufficient merit to warrant a reversal, the judgment is affirmed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    W. TEMPLE et al. v. STATE.
    No. A-7271.
    Opinion Filed May 2, 1930.
    (287 Pac. 743.)

      Sigler & Jackson, for plantiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county of the crime of having possession of a still and their punishments fixed at a fine of $50 and confinement in the county jail for 30 days for each of them.

The evidence of -the state was that Con Keirsey and Cecil Crosby, deputy sheriffs of Carter county, arrested the defendants in possession of and operating the still charged in the information; that the still.was in actual operation and whisky being run off at the time defendants were arrested. After the defendants were arrested, defendant J. L. Patrick escaped from the officers and was not recaptured until about 60 days later. The evidence of the defendants was that they had just learned about the still and had merely gone there for the purpose of seeing it at the time they were arrested. J. L. Patrick explained his running away by saying he did not want to have to go to jail for another man’s crime.

Defendants contend that the evidence is insufficient to- support the verdict of the jury. The defendants being found in possession of the still, and the officers testifying that they were actually operating it at the time they were arrested, was sufficient to justify the jury in finding the defendants guilty. The jury were not bound to believe the explanation of the defendants and evidently did not do so.

For the reasons stated the cause is affirmed.

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


author: DAVENPORT, J.

text:
    TOM MOFFITT v. STATE.
    No. A-7335.
    Opinion Filed May 2, 1930.
    (287 Pac. 736.)
    See, also, 45 Okla. Cr. 440, 283 Pac. 1027.
    Hugh A. White, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor, to wit, a liquor commonly kno wn as home-brew, capable of being used as a- beverage, with the unlawful intent to violate the prohibition laws, and was sentenced to pay a fine of $50 and costs, and be irii-prisoned in the co-tmty jail for a period of 30 days. From which sentence and judgment the defendant has appealed.

The testimony on behalf of the state tends to show that the officers went to the home of the defendant and searched the same, and found a quantity of liquor designated by the officers as home-brew. The officers testified that it was intoxicating, some of them say they tasted it, and others say they drank a small quantity of it.

When the case was called for trial, the defendant moved to suppress all the testimony secured by the officers on the ground that it was secured by an unlawful search and seizure; that the search warrant under which the search was conducted was illegally and unlawfully issued and served; and for the further reason that the place searched was the place of- residence of the said Tom Mof-fitt. The defendant further moved the court to suppress the evidence of the Avitness Sid Huddleson and any other witness in regard to anything that may have come to their knowledge by reason of the search of the premises. These motions were heard and overruled by the court, and the defendant duly excepted.

The defendant has assigned the overruling of his motion to suppress this evidence as the ninth assignment of error. All of the testimony shows that Avhatever. the officers found they found in the home occupied by the defendant and his family, in the city of Holdenville. The defendant insists that the affidavit upon which the search Avarrant was predicated Avas insufficient to authorize the officers in the search of his residence occupied by him as such. The affidavit for the search warrant, omitting the caption, prayer, and jurat, is as follows:

“I, M. C. LaValley, having first been duly sworn, upon oath depose and say: That I have reason for believing, and do believe, that the following Tom Moffitt in violation of the prohibitory laws of the State of Oklahoma.
“That said intoxicating liquors are kept by the above named Tom Moffitt upon his premises, in his house, barn or other outbuildings, or is secreted upon or about his place upon tbe following described lands in Hughes county, Okla., to wit:
“Lots 18,19 and 20, Block 52, Original Town of Hold-enville, Hughes county, Okla.
“The reasons for my belief as aforesaid, are: This . affiant knows, of his own personal knowledge, the general reputation of the premises above described, as being a place of public resort, where people go in the day time and in the night time and buy and drink intoxicating liquors, and that reputation is 'bad; This affiant knows the general reputation of the above named Tom Moffitt as being a person who keeps in his possession intoxicating liquors with the unlawful intent of him the said Tom Moffitt to sell the same and furnish the same to others and that reputation is bad; This affiant personally has watched said premises in the day time and nig'ht time and has seen people going to and coming from said premises, said persons being to this affiant known users of intoxicating liquor; and this affiant further says that the said Tom Moffit is an old offender, so far as violating the prohibition law is concerned, and has been convicted heretofore in the courts for such offense.’’

Section 7013, C. O. S. 1921, is as follows:

“No warrant shall be issued 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.”

It is urged by the defendant that the affidavit does not contain the proper allegations to authorize the officer to predicate a search warrant upon for the purpose of searching his home occupied as such, and there is no statement in the affidavit complying with the requirements of the statute, section 7013, supra. We agree with the defendant’s contention. There is no statement in the affidavit required by the said section, and the search made by the officers under the said search warrant was without legal authority, the affidavit not containing the statutory allegations necessary to search the home of the defendant; there being no positive statement in the affidavit that the defendant’s residence was used as a store, shop, hotel, boarding house, or place for storage, nor that the said residence was a place of public resort.

In Sprinkle v. State, 36 Okla. Cr. 36, 251 Pac. 614, in the second paragraph of the syllabus, the court said:

“An affidavit for a search warrant to search a private residence is invalid, unless it is made to appear by such affidavit that the private residence occupied as such, or some part of it, is used as a store, shop, hotel, hoarding house, or place for storage, or is a place of public resort. A search of a private residence, made upon authority of a search warrant based on such affidavit, which does not contain such allegation, is illegal.” Vice v. State, 36 Okla. Cr. 18, 251 Pac. 509.

In Loveless et al. v. State, 43 Okla. Cr. 146, 277 Pac. 672, in the second paragraph of the syllabus, this court held:

“No officer has a lawful right to search any private residence, even though he possesses a search warrant issued by a magistrate, unless the conditions, or some one of them, referred to in section 7013, C. O. S. 1921, exist in the habitation at the time the search is to be made.”

We hold that the motion of the defendant to1 suppress the evidence was well taken, and the court erred in not sustaining the same. Other errors are assigned, but, for the reasons herein stated, it is not deemed necessary to consider them. The case is reversed.

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


text:
    HERMAN WARD v. STATE.
    No. A-7341.
    Opinion Filed May 2, 1930.
    (287 Pac. 735.)
    P. G. Moore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor with intent to sell, barter, give away, and otherwise furnish the same to others, contrary to the form of the statute, and was sentenced to pay a fine of $50 and costs, and to be imprisoned in the county jail for thirty days. From which judgment the defendant has appealed to this court.

When the case was called for trial, the defendant filed his motion to suppress the evidence on the grounds: First, that the same Avas procured without a legal search Avarrant as by law provided. Second, for the reason that the evidence procured by the state Avas procured by the deputy sheriff searching the residence of the defendant without showing the proper affidavit, or without showing the proper cause for the same. Third, for the reason that the search made was an illegal search. Which motion was by the court overruled, and the defendant excepted.

The state called W. C. Keirsey, who testified that on June 2, 1928, he was deputy sheriff; that he searched the residence of Herman Ward and found six gallons of whis-ky in a little room on the porch of the house, went into the house, and found three gallons in the loft in the south room. This was all the testimony introduced by the state. The defendant did not introduce any testimony.

Three errors have been assigned by the defendant as grounds for reversal of this case. They all may be treated under one head, and that is that the evidence secured by the state was procured by an illegal search warrant. The defendant contends that the affidavit filed in his case does not show probable cause, and does not contain sufficient facts necessary under section 7013, C. O. S. 1921, to entitle an officer to search his residence. The affidavit in this case is positive in terms and states sufficient facts to warrant the magistrate in issuing a search warrant. As to whether or not these facts are true this court is not called upon to say.

After reading the statements contained in the affidavit, we are reluctant to say that any officer charged with the duty of enforcing the law would make the affidavit under consideration unless he had knowledge of the statements therein made. Officers of the law are charged with the duty of enforcing and obeying the law, and we do not believe an officer would make the positive statements contained in this affidavit if he did not have knowledge of facts contained in the affidavit. The purpose of an affidavit for a search warrant is the same as for a verified complaint for a warrant for arrest; that is, to invoke the judicial power on tbe magistrate for the protection of the citizens against illegal searches and to satisfy the conditions of the statutory requirements that a search warrant shall be issued only upon probable cause, supported by oath or affirmation. Article 2, § 30, State Constitution; sections 7012 and 7013, C. O. S. 1921.

This court in Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, held:

“The truth of an affidavit to procure a search warrant, positively sworn to, is not an issue in the trial of a case in which evidence procured by such search warrant is offered.” See authorities therein cited.

Record examined, and evidence held sufficient to sustain the conviction. No errors appearing in the record, the judgment is affirmed.

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


text:
    Ex parte ALFORD GUYER.
    No. A-7225.
    Opinion Filed May 10, 1930.
    (288 Pac. 371.)
    Robert W. Maupin, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Petitioner filed his petition in this case on the 22d day of November, 1928. No briefs have been filed, and no request for hearing has been made thereon. It appearing that pending the hearing on this petition the petitioner has completed the term for which he was sentenced, the questions raised have thus become moot, and the cause is therefore dismissed.

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


text:
    B. M. BRUNER v. STATE.
    No. A-7226.
    Opinion Filed May 10, 1930.
    (288 Pac. 369.)
    G. A. Chappell, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of having possession of and under his control fourteen gallons of intoxicating liquor, to wit, wine, containing more than one-half of one per cent, alcohol measured by volume, with the unlawful and felonious intent to sell, barter, give away, or otherwise furnish, in violation of law, and. was sentenced to pay a fine of $200 and be imprisoned in the county jail for a period of 30 days. From which judgment the defendant has appealed to this court.

When the case was called for trial, the defendant moved the court to suppress the evidence secured by the state witnesses, and objected to the introduction of any testimony of the witnesses Fred Long, Ivan Webb, and .Claud Brantner, pertaining to the search of the residence or any buildings of the defendant, and articles therein seized, for the reason that the same was procured by virtue of an illegal search warrant, and that the affidavit upon which the search and seizure warrant was issued does not comply with the laws of the state of Oklahoma, in that it does not allege that such residence was used as a store, shop, hotel, boarding house, or place of storage, or place of public resort, as provided in section 7013, Comp. Stat. 1921. Fourth, that there is no proof on the part of the state that any part of his residence was actually used as a store, shop, hotel, boarding house, place of storage, or public resort. Fifth, that the said premises in the search and seizure warrant are simply described as a quarter section of land, and does not describe the residence or cur-tilage with particularity so as to comply with the 1921 Statute, sections 28’81, 7009, 7012, and 7013.

This motion to suppress was by the court overruled, and the defendant saved an exception. If the motion of the defendant to suppress the testimony of the state witnesses named is well taken, the conviction of the defendant in this case should be reversed.

The third assignment of the defendant is the court erred in overruling the plaintiff in error’s motion to suppress the evidence, which motion was interposed by the plaintiff in error at the commencement of the trial. The defendant contends that the affidavit and search warrant in this case is not sufficient to authorize the officers to search his residence, or any of the buildings used in connection therewith, for the reason that the affidavit covers a quarter section of land, and the search warrant also describes a quarter section of land without mentioning any buildings, or any structures of any kind whatever, and lie-urges that the search warrant describing a quarter section of land as it does is too general, and that under and by virtue of the provisions of this warrant the search of the cellar, smokehouse, chicken house, and yard on the grounds and curtilage of the defendant was without authority of law. The testimony therefore is inadmissible. The description in the search warrant is as follows: “NE quarter of section 34, township 29, range 3 east, Kay county, Okla.; and the person of B. M. (Mike) Bruner.” The warrant further commanded the sheriff to forthwith diligently search said premises and every part thereof.

Section 7013, C. O. S. 1921, is as follows:

“No warrant shall be issued 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.”

Nowhere in the affidavit or in the search warrant in this case is it stated that any part of the defendant’s residence is used as a store, shop, hotel, boarding house, or place for storage, or that such residence is a place of public resort, and there is no provision in the search warrant authorizing the officer to enter upon the grounds of the residence of the defendant, and to search the buildings and curtilage used in connection with the residence by the defendant. The description is general, describing nothr ing but tbe quarter section of land, and tbe only authority tbe sheriff had tO' break tbe locks and enter any of tbe buildings of the defendant used in connection with his residence and on the curtilage of his home, as shown by the proof, is the general description in the warrant authorizing him to search the quarter section of land described in the warrant.

In Hall v. State, 34 Okla. Cr. 334, 246 Pac. 642, this court in the first paragraph of the syllabus said:

“An affidavit for search warrant for the search of an entire section of land is in violation of section 30, art. 2, of the state Constitution.”

In this case the statement made in the affidavit was: “All buildings and outbuildings and appurtenances and land situated on section 13, township 12, range 7, in Canadian county, Okla.” It was held by this court that the description in the affidavit was in violation of the provis.-ions of the statute by failure to describe as particularly as may be the premises to be searched, simply describing section 13, township 12, range 7, which is too general under section 30, art. 2, of the Constitution, and section 7012, Compiled Statutes 1921. Kolander v. State, 33 Okla. Cr. 31, 241 Pac. 837.

In Turknett v. State, 36 Okla. Cr. 401, 254 Pac. 985. the affidavit described the property to be searched as one filling station and auto park known as Shady Grove Auto Park, located in the northwest corner of section 25, township 22 north, of rangve 12 east, together with the curtilage and appurtenances thereunto belonging; that such building is a private residence and used as a place of public resort, and for furnishing and storage of intoxicating liquor. In the body of the opinion this court said, reasonably construed, the affidavit and warrant authorized the search of the filling station and auto park. There was no claim or any evidence that the filling station was used as a residence, and the language purporting to give authority to search the curtilage and appurtenances thereunto has no meaning as applied to a filling station and park as such, since the word “curtilage” means the yard or court for the protection and security of the mansion house or the inclosure belonging to a dwelling house, and probably including the buildings occupied in connection with a dwelling house.

In this case the testimony tends to show that the only place the officers searched or attempted to search was the residence and outbuildings connected therewith. Witness Long testified he went to the defendant’s residence, knocked on the door, and failed to receive any response; that there was no one at home at the time; that he and other officers searched the cellar, barn, chicken house, and chicken yard; that they broke the locks and searched the cellar and some other buildings.

We think the motion of the defendant to suppress the evidence was well taken, for the reason that the search warrant must describe the place to be searched so that it can be ascertained from an examination of the warrant, with such particularity that no discretion of the place to be searched is left to' the searching officer. The search warrant did not describe AVith such particularity as is required by law the buildings on the curtilage which was searched by the officers. Cook v. State, 40 Okla. Cr. 219, 267 Pac. 1045; Russell v. State, 37 Okla. Cr. 71, 256 Pac. 758; Wofford v. State, 40 Okla. Cr. 18, 266 Pac. 494; McDaniel v. State, 41 Okla. Cr. 203, 270 Pac. 1115.

We hold that the affidavit for the search warrant, and the search warrant describing the place to be searched as the northeast quarter of section 34, township 29, range 3, Kay county, Okla., and the person of B. M. (Mike) Bruner, is insufficient to particularly describe the place to be searched and is too general to authorize the searching of the buildings on the curtilage used in connection with his residence.

Other errors are assigned by the defendant, but, the view we take of this record, it is not necessary to consider them. The motion of the defendant to suppress the evidence was Avell taken, and the court erred in not sustaining the same. For the reasons stated herein, the judgment of the trial court is reversed.

EDWARDS, P. J., concurs.

CHAPPELL, J., dissents.


text:
    CURTIS NIX v. STATE.
    No. A-7250.
    Opinion Filed May 10, 1930.
    Rehearing Denied June 5, 1930.
    (288 Pac. 365.)

      Wilkins & Wilkins, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Love county on a charge of having sour mash in his possession, and his'punishment fixed at a fine of $50 and confinement in the county jail for a period of.30 days.

The defendant in his brief says:

“The evidence of the state tended to prove the following facts: Earl Tynes and Prank Bays living near Orr, Oklahoma, in Love county, were officers of the law in 1926 and these two officers went to a place they understood was Luther Hodges’ and saw Mr. Nix there with others digging a well. Mr. Nix was living on the premises and found a bunch of barrels about 10 or 15 steps from the well with some beer in them. This mash was found in the pasture about 250 yards from the house. The officers poured it out. The mash was suitable to make corn whis-ky out of. This was found about 250 yards from his house in the pasture. It had not reached the stage of fermentation.
“Mr. Tynes testified. That Mr. Nix said the mash did not belong to anyone of the other 4 or 5 boys, that it belonged to him. Also that this occurred in Love county, Oklahoma.”

It further appears from the record that Frank Bays, as a witness for the state, testified as follows:

“No sir, wasn’t acquainted with them much. We were just walking up there and he asked us to come on up, told him we had found 14 barrels of mash, and he said come on up, this is all mine, doesn’t belong to these other boys, and one of them was in the well at that time.”

Frank Bays further testified that the twelve barrels of mash were found in the pasture about 250 yards from the house, and that he did not search the house, barn, or any other part of the premises except the pasture.

The defendant complains first that the court erred in permitting the state, after the jury was impaneled, to amend the information by striking, out the words: “Said sour mash mentioned aforesaid containing more than one-half of one per cent, alcohol measured by volume,” and by adding the following words to said information: “Said mash being then and there fit for distillation of spirits and intoxicating liquors.” The record discloses that the defendant objected to this amendment to the information, and saved exceptions to the ruling of the court thereon, but did not ask for a continuance or postponement of the trial. The defendant objected to proceeding with the trial and the hearing of any evidence in the case, not on account of any alleged prejudice in permitting the amendment of the information, but because the state had not produced the affidavit and search warrant at the beginning of the trial. Thereupon the county attorney announced 'that no search warrant was used and the evidence would show none was necessary. This court has repeatedly held that an information may be amended as to substance where the same may be done without substantial prejudice to the rights of the defendant. Rich v. State, 46 Okla. Cr. 242, 284 Pac. 903, and cases therein cited.

Defendant next contends that the court erred in overruling his motion to suppress the evidence because the same was obtained upon an illegal affidavit and search warrant. When the commission of an offense is suspected, a search without a warrant of woodlands or pastures not within the curtilage or close proximity of any residence is not unreasonable within the meaning of the Constitution. Merck, v. State, 35 Okla. Cr. 160, 249 Pac. 163; Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661; Perry v. State, 42 Okla. Cr. 92, 274 Pac. 686.

The evidence of the state was that the mash was found in a pasture some 250 yards from the house, and that-, when the defendant saw the officers, he called to them, and requestad them to come on up where he was, which was some ten or fifteen steps from the mush, and told the officers that the mash was his, and that the other men there had no interest in it. Under the facts in this case no search warrant was necessary, and the evidence was properly admitted.

Finally, the defendant contends that the evidence is insufficient to support the verdict of the jury. This contention is without merit. For the reasons stated, the cause is affirmed.

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


text:
    I. W. BISHOP v. STATE.
    No. A-7339.
    Opinion Filed May 10, 1930.
    (288 Pac. 363.)

      John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of possession of intoxicating liquors with intent to barter, sell, and give away the same contrary to the statutes of Oklahoma, and was sentenced to pay a fine of $500 and to be confined in the county jail for six months, and the case appealed to this court.

Before the case was called for trial, the defendant filed a motion to suppress the evidence of the state on the ground that the same was procured by an unreasonable search of the defendant’s private residence, on the 28th day of February, 1929; that the premises described in the search warrant as 502 South Chapman street, Shawnee, Pottawatomie county, Okla., is the private residence, and is occupied as such by the defendant and his family.

Further the warrant is void because the same does not comply with sections 2878, 2879, 2880, and 2881, C. O. S. 1921. That the warrant is void and of no effect because the same is not directed to a peace officer of Pottawatomie county as required by the sections of the statutes named. Tliat the warrant was issued without probable cause. That the warrant was issued on information and belief and does not show upon its face it was issued by any officer legally.authorized to issue the same; and that all the grounds set forth in the warrant was in printed form, and all that is necessary for the county attorney to do is to place the number and description in said complaint and said warrant, and allege the true name of the occupant or owner is unknown, and the search warrant will thereupon be issued.

A hearing was had upon the motion to suppress, and the affidavit for the search warrant and the search warrant were introduced in evidence. The motion to suppress was overruled and the defendant reserved an exception. The defendant Avas tried and convicted, perfected his record in this case, and urges as grounds for reversal in his first assignment that his motion to suppress the evidence should have been sustained, and as one of the reasons discussed he says the search warrant was not directed to any officer of Pottawatomie county, and is therefore void.

In section 2881 C. O. S. 1921, a substantial form of a search warrant is provided by our Legislature. In section 2882, it is provided:

“A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.”

In Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279, the following language is used:

. “A search warrant is ‘process.’ It must run in the name of the state of Oklahoma to' some peace officer * * * of the state. It can be served only by the officer mentioned in its direction, but by no other person except in aid of the officer on his requiring it, he being present and acting in its execution.”

That portion of section 7009, with reference to the issuing of a search warrant, and to whom it shall be directed, is as follows:

“If it shall be made to appear to * * * any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, sold, bartered, given away, or otherwise furnished, or is being kept for the purpose of being sold, bartered, given away, or otherwise furnished in violation of this act, such judge or magistrate shall, with or without any indorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer, in the county, whom the complaint may designate, commanding him to search the premises described and designated in such complaint * * * and to seize all such liquor there found,” etc.

The defendant contends that the law was not complied with, and his motion to suppress the evidence should have been sustained, for the reason that the search warrant in this case is not directed to any peace officer in the county of Pottawatomie.

The question of the direction of the search warrant and its service has been before this court many times in different ways, and this court has held that the search warrant is “process,” within the meaning of the Constitution and our statute, and in order to be valid it must run in the name of the state. McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307.

Section 862, C. O. S. 1921, provides the style of all process shall be, “The State of Oklahoma.” It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it was issued.

Many decisions of our court bold that tbe above section of tbe statute is mandatory. Section 2876, C. O. S. 1921, provides:

“A search warrant is an order in writing, in tbe name of tbe state, signed by a magistrate, directed to a peace officer, commanding bim to search for personal property and bring it before tbe magistrate.”

Section 7009 provides, in part, that tbe warrant shall be directed to any peace officer in tbe county whom tbe complaint may designate. Tbe caption of the warrant reading, “Before me, Tully J. Darden, Justice of tbe Peace, in and for Pottawatomie County, Oklahoma,” is probably sufficient to fix venue showing that tbe justice of tbe peace who issued the search warrant was a justice of tbe peace of Pottawatomie county, Okla. The warrant is not addressed to any sheriff, marshal, or policeman of Pottawatomie county, Okla., as; required by section 7009, supra, or to any other county in tbe state; only runs, “Tbe State of Oklahoma, to any sheriff, marshal or policeman.” A search .warrant is clearly process within the meaning of tbe Constitution and tbe statute above referred to, and iu order to be valid must run in the. name of the state, and be addressed to some officer in the county where the warrant is issued.

The search warrant under which the evidence introduced in this case was obtained was not directed to any officer authorized to serve process in Pottawatomie county, Okla., and was invalid, and upon timely objection as was made in this case should have been excluded.

The case is reversed and remanded.

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


text:
    ERNEST POTTER v. STATE.
    No. A-7285.
    Opinion Filed May 10, 1930.
    (288 Pac. 362.)
    Brown Moore and Güy L. Horton, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of unlawfully selling spirituous liquor, to wit, whisky, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days.

The evidence of the state shows that the defendant, who lived near the town of Yale, sold a half gallon of whisky to B. C. Adkison and one Jardot. The state called the twelve year old son of B. C. Adkison, who testified that he drove his father’s car and. took him and Jardot to Potter’s place; that his father was drunk in the back seat, and that Jardot got the whisky from Potter, paid $5 for it, and that later they changed a $10 bill of his father’s and gave Jardot $2.50. When Adkison was arrested for being drunk, the boy took the officers out to defendant’s place and showed them where they bought the whisky.

Of course the defendant denied that he saw the parties or sold them any whisky.

The defendant first contends that the court erred in permitting the state to amend the information after the jury was impaneled and before evidence was introduced by permitting the state by interlineation to insert the words, “and Herman Jardot” following the name of B. C. Adkison. In the case of Rich v. State, 46 Okla. Cr. 242, 284 Pac. 903, thi^ court fully discusses the question raised by defendant and it was there said: “That the information may be amended in substance at any time after the trial begins with leave of court, if no prejudice thereto results to the defendant.” The court there cited numerous decisions of this court supporting that rule.

' Defendant next contends that the court erred in not arraigning him upon the amended information and forcing him to trial over his objections. The amendment of the information was not of such a nature as to require a re-arraigment or a continuance of the case.

The defendant next contends that there was a fatal variance between the amended information and the proof, in that the proof tended to show that there were two Jar-dots, G-us and Herman, being father and son. The witnesses for the state said that they had been mistaken in the name, and that they had always heard this man called Herman, while the evidence of the defense was that his name was Gus. The proof of the state showing that a sale had been made to B. C. Adkison, that was sufficient to support a conviction. Shuford v. State, 4 Okla. Cr. 513, 113 Pac. 211; Wheatcraft v. State, 32 Okla. Cr. 379, 240 Pac. 753.

Defendant next contends that the court erred in admitting incompetent evidence. On cross-examination of the witness Jewel Adkison, the defendant undertook to show that B. C. Adkison, the man whn purchased the whisky, had stayed away from the trial to avoid prosecution, and that the boy was testifying against the defendant in order to save his father from prosecution. Thereupon the court permitted the state to introduce the subpoena issued for Adkison and the certificate of a doctor showing that he. ivas sick and unable to be present, as establishing the reason for the absence of the witness who had purchased the liquor. While it was not necessary for the state to show any reason for the absence of the man who had purchased the liquor, the defendant could not have been injured thereby. This court has repeatedly held that it will not reverse a case for the admission of incom-. petent evidence, unless it clearly appears that the admission of such incompetent evidence has probably caused a miscarriage of justice or deprived the defendant of a constitutional or statutory right. Byrd et al. v. State, 45 Okla. Cr. 238, 282 Pac. 690; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012; Pruitt v. State, 43 Okla. Cr. 420, 279 Pac. 707; Robinson v. State, 44 Okla. Cr. 189, 280 Pac. 1112.

The defendant was accorded a fair trial, and the evidence supports the verdict of the jury. The cause is therefore affirmed.

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


text:
    Ex parte FRED RICHARDSON.
    No. A-7753.
    Opinion Filed May 10, 1930.
    (288 Pac. 357.)
    Elmore Pinnick, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

The petitioner represents that he is restrained of his liberty in the county jail by Stanley Rogers, sheriff of Oklahoma county; that the cause of such restraint is that he was tried in the court of W. P. Hawkins, a justice of the peace in and for Oklahoma City district, Oklahoma county, charged with the commission of a misdemeanor; that petitioner was tried by a jury, found guilty, and his punishment fixed at a fine of $12.50 and costs and imprisonment in the county jail for a period of ten days.

The petitioner alleges that said commitment is void and without authority of law; that the justice of the peace was disqualified to sit in said cause for the reason that he only received his fees in case of conviction of petitioner.

This court has had this precise question under consideration in Ex parte Julius Lewis, 47 Okla. Cr. 72, 228 Pac. 354, and the issues decided adversely to the petitioner. For a discussion of the question of the qualification of the justice of the peace to sit in the trial of a case who may receive fees from the defendant for his services, see opinion in the above case.

For the reasons stated in Ex parte Julius Lewis, supra, the writ is denied.

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


author: PER CURIAM.

text:
    OSCAR VAUGHN v. STATE.
    No. A-7337.
    Opinion Filed May 10, 1930.
    (288 Pac. 349.)
    Clarence Tankersley and W. F. Durham, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

An information was filed on February 13, 1929, in the county court of Pottawatomie county, charging the plaintiff in error with having unlawful possession of whisky. He was arraigned on the same day and entered his plea of guilty thereto. Thereafter, on the 14th day of February, 1929, a judgment and sentence was entered against the plaintiff in error, wherein he was to pay a fine of |300 and to be confined in the county jail for a period of three months.

The appeal in this case was filed in this court on the 13th day of April, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument. It appears from the petition in error attached to the case-made that the plaintiff in error com plains that the court erred in refusing to permit him to Avithdraw his plea of guilty, after judgment and sentence and allowing Mm to enter a plea of not guilty. This is a matter within the sound discretion of the trial court.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights. The plaintiff in error having pleaded guilty to the charge, and no abuse of discretion of the trial court appearing, the cause is affirmed.


text:
    LON BERT v. STATE.
    No. A-7265.
    Opinion Filed May 10, 1930.
    (288 Pac. 348.)
    Bond & Bond, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Stephens county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of thirty days.

But one question is presented by this appeal, and that is the sufficiency of the evidence to support the verdict. The evidence of the state shows that the officers searched the premises described in the search warrant and found three pints of whisky and about four hundred pints of beer; that the defendant was found in the building together with one Tom Prentice, who later pleaded guilty, paid his fine and served his sentence. The evidence further discloses that the defendant was asked at the time of the search what he was doing there running a place like that, to which the defendant replied that he was just up against it, broke, and thought he could get a little money and get out before they found it out on him or before they discovered it.-

The evidence of the state concerning the physical facts in the case, together with the admission of the defendant at the time of his arrest, were sufficient, if believed by the jury, to warrant a verdict of guilty. No error being apparent, the cause is affirmed.

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


text:
    LOYD ROWE v. STATE.
    No. A-7230.
    Opinion Filed May 10, 1930.
    Rehearing Denied June 14, 1930.
    (288 Pac. 502.)

      Cruce & Potter and Sigler & Jackson, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted iu the district court of Carter county of the crime of grand larceny, and his punishment fixed at imprisonment in the state penitentiary for a period of six months. He appeals from this conviction.

When arraigned in the district court, defendant filed his motion to set aside the information, and alleged as a reason therefor that he had not been given a preliminary hearing. The trial court held a hearing on said motion, at which time defendant became a witness in his own behalf in support of such motion, and testified in substance that he thought he was being used as a witness against Ms codefendant, having been told by a deputy sheriff that he did not need an attorney and was to be used as a witness ; that the county judge asked him if he had a lawyer, and he told him he did not need one; that he had never talked to the county attorney about his case and was a voluntary witness in his own behalf; that he was 25 years of age, had been in jail several times, and was out on bail from the time he was arrested until the preliminary hearing; that his brother had employed a lawyer, but that he did not think he needed him in the preliminary. The testimony of defendant does not support his contention.

In the case of Baker v. State, 9 Okla. Cr. 62, 130 Pac. 820, this court said in the body of the opinion:

“It is the right of a person put upon trial for a criminal offense to be represented by counsel. This right may be waived by the defendant, but it cannot be denied by the courts.”

It clearly appears from the record that the defendant not only waived the right to counsel, but waived the right to a preliminary hearing.

The defendant next contends that the evidence is insufficient to support the verdict of the jury, in that it only proved possession by him of part of the property stolen, and that this possession is explained consistent with his innocence. The evidence of the state shows that the defendant was wearing the suit of clothes stolen, at the time of his arrest, and that he also had exclusive possession of a $35 cashier’s check taken at the same time. Defendant forged the name of Haney, to whom the cashier’s check was made payable, as an indorsement on said check and received the money thereon. There is not only proof of possession of the stolen goods by this defendant, but also exercise of dominion by him over said goods and appropriation of said goods to1 his own use. The evidence of the state was sufficient to support the verdict of the jury.

Defendant next complains that the court erred in refusing to give a requested instruction. An examination of the record discloses that the court, in instruction No. 8, gave the identical instruction requested by defendant.

Defendant complains of other errors, but they are all without substantial merit. For the reasons stated, the cause is affirmed.

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


text:
    L. C. SPENCER et al. v. STATE.
    No. A-7336.
    Opinion Filed May 10, 1930.
    (287 Pac. 1044.)

      Meyer & White, for plaintiff in error.
    The Attorney General, for the State. ■
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Hughes county on a charge of having possession of intoxicating liquor, and their punishment fixed at a fine of $50 and confinement in the county jail for thirty days for each of them.

The defendants filed a motion to suppress the evidence, and in support of said motion introduced the affidavit, the search warrant, and the copy served upon the defendants. The affidavit was made on the 29th day of December, 1928, alleging that one Sutton, whose first name was unknown, was violating the prohibitory liquor laws, and praying for a search warrant to search the premises of said Sutton. On the same day the justice of the peace issued a search warrant directing the officers to search the premises of one Sutton described as the N. W. quarter, section 14, Tp. 8 N., P. 8 E., in Hughes county and the houses and buildings thereon. Sid Huddleston, the deputy sheriff who served the warrant, being called by the defendants as a witness, testified that he had changed the date of the search warrant from the 29th day of Decern-ber to the 30th, and had written the name, “L. 0. Spencer” into the warrant, and had stricken out of the copy of the warrant the words, “Sutton whose first name is not known,” and had written into' such copy the name, “L. C. Spencer,” and then served the same on the defendants; that these alterations were made by him without the knowledge or consent of the justice of the peace who' issued the same, and 'after the same had been signed by the justice of the peace and delivered to him.

The motion to suppress should have been sustained. The search warrant is process issued by the magistrate, and is the only authority upon which the officer may proceed. It was the duty of the officer to> search the premises under the warrant as issued by the magistrate. No officer charged with the duty of serving such processes has any authority to malee any alteration or change in the same, and, where such changes are made by the officer, the warrant becomes a nullity, and evidence obtained by a search and seizure under such altered warrant is inadmissible.

We cannot too strongly condemn the practice of some officers who carry about with them “John Doe” search warrants issued in blank or who change valid search warrants in their possession to fit what they consider the facts at the time the search is made. The trial court should have sustained the motion to suppress the evidence.

For the reasons stated, the cause is reversed and remanded, with directions to the trial court to' dismiss the same.

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


text:
    CHARLIE HILL v. STATE.
    No. A-7343.
    Opinion Filed May 10, 1930.
    (287 Pac. 1116.)
    Guy P. Horton, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in tbe county court of Jackson county on a charge of conveying and transporting intoxicating liquor, to wit, whis-ky, and his punishment fixed by the jury at a fine of $100 and confinement in the county jail for a period of 90 days.

The appeal in this case was filed in this court on the 18th day of April, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights. The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    JOHNNIE PALMER v. STATE.
    No. A-7319.
    Opinion Filed May 10, 1930.
    (287 Pac. 1112.)

      Howe & Douglass, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Choctaw county on a charge of burglary in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The appeal in this case was filed in this court on the 19th day of March, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights. The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    ED LOGAN v. STATE.
    No. A-7213.
    Opinion Filed May 10, 1930.
    (287 Pac. 1112.)

      Wieck & Armstrong, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $150 and be imprisoned in the county jail for 60 days, from which judgment the defendant has appealed to this court.

The information in this case charged that the defendant sold one pint of whisky to one Lloyd Rigdon. The state in support of the allegations in the information called a witness who stated his name to be F. B. Rigdon, who stated he was a resident of Newkirk; that he was acquainted with Shorty or -Ed Logan; that he did not know whether he had a transaction with Shorty Logan in September, 1927; that he could not remember dates; as far as he could remember, it was in the fall of the year; the transaction occurred somewhere on North Main street.

The county attorney asked the witness in the course of the examination: “Q. Do you live here in Newkirk, Floyd? A. Yes, sir.”

This was all the testimony introduced at the trial. When the state rested its case, the defendant demurred to the evidence introduced on behalf of the state, and moved the court to advise the jury to return a verdict of not guilty, for the reason that the evidence fails to prove the allegations charged in the information. This motion was overruled, and the defendant reserved an exception.

The defendant has assigned several errors alleged to have been committed in the trial of his case — the first assignment being that the court erred in overruling his motion for a new trial; fourth, that the said verdict is contrary to the evidence; fifth, that the said verdict is not supported by the evidence; seventh, the court erred in refusing to sustain the demurrer to the evidence and motion for a directed verdict of not guilty made by the defendant at the conclusion of the state’s testimony.

These assignments will be treated together, as they all relate to the same question; that is, Is the testimony of the state sufficient to sustain the allegations in the information? The information charges that the defendant sold to one Lloyd Rigdon a pint of whisky. The fourth instruction to the jury advised the jury that they find beyond a reasonable doubt that the defendant in this case sold to one Lloyd Rigdon before it would be warranted in finding the defendant guilty.

We have carefully examined the record, and fail to find any testimony whatever to' sustain the allegations in the information. The only witness called on behalf of the state testified his name was F. B. Rigdon. One place in the taking of the testimony they referred to him as Floyd Rigdon. There is no testimony in the record showing that the witness called was Lloyd Rigdon, or that Lloyd Rig-don was one and the same as F. B. or Floyd Rigdon. We hold that the proof fails to' sustain the allegations. The demurrer of the defendant to' the evidence should have been sustained.

There being no proof to sustain the allegations in the information, the judgment is reversed.

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


text:
    FRED TINDEL v. STATE.
    No. A-7214.
    Opinion Filed May 10, 1930.
    (287 Pac. 1109.)

      Wieck & Armstrong, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged with possession of intoxicating liquors with intent to barter or give away the same to others contrary to the statutes. The jury returned a verdict of guilty and did not fix the punishment. The court, on the verdict rendered, sentenced the defendant to pay a fine of $500 and costs and to be imprisoned in the county jail of Kay county for a period of six months. The defendant filed a motion for new trial and motion in arrest of judgment, which motions were overruled, and the defendant reserved an exception.

The testimony in this case shows that the officers went to defendant’s place with a search warrant and searched the premises, and claim they found a quantity of whisky within 200 yards of the home of the defendant, and the officers claim it was on the land belonging, to the defendant. No testimony having been introduced by the defendant, the court permitted the county attorney to ask the state witness the following questions:

“Q. I will ask you, Mr. Long, if you knew the general reputation of the defendant, and the premises on which this liquor was found, as being a place where intoxicating liquors are stored, concealed and otherwise handled? The defendant objected on the ground that it was incompetent, irrevelant and immaterial. The objection was overruled by the court and the defendant excepted. The witness answered: Yes, sir.
“Q. What is it, good or bad? (The defendant objected, on the ground that it was incompetent, irrelevant and immaterial. The objection was overruled, and the witness answered: It was bad. The defendant then moved the court to strike the last two questions and answers from the record, on the ground they were incompetent, irrelevant and immaterial; which motion was overruled and defendant duly excepted.)”

The same questions in substance were propounded to the witness Ivan Webb as were propounded to the witness Fred Long. The defendant objected, and the court overruled the objections, and the defendant excepted; the witness answering that the defendant’s reputation and the reputation of his home was bad.

Several errors have been assigned by the defendant, but the view we take of this record it is only necessary to consider the sixth assignment, and that is the admission, over the objection of the defendant, of incompetent, irrelevant, immaterial, and prejudicial evidence on behalf of the state as to the reputation of the defendant’s home and the defendant’s reputation, without the defendant having first placed his reputation in issue. This question has been before this court many times.

In Parnell v. State, 37 Okla. Cr. 413, 259 Pac. 151, in the first paragraph of the syllabus, the court said:

“In a prosecution for unlawful possession of intoxicating liquors, evidence of the general reputation of the defendant’s home, as a place where intoxicating liquors are kept for sale, is incompetent to prove the charge.”

In the second paragraph of the syllabus, the court said:

“Proof that defendant’s home had the general reputation of being a place of public resort is not a sufficient predicate to authorize the admission of evidence of the general reputation of such place as a place where intoxicating liquors are kept for sale.”

In Lumpkins v. State, 36 Okla. Cr. 253, 253 Pac. 909, the court, in the second paragraph of the syllabus, said:

“Before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession of intoxicating liquors, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation.”

In the third paragraph of the syllabus, the court stated:

“The state cannot attack the character of a defendant, unless he first puts that in issue by introducing evidence of his good character.”

It has been universally held that the general reputation of the defendant’s home is admissible only upon the laying of the proper predicate showing that his home was a place of public resort. Yakum v. State, 30 Okla. Cr. 184, 235 Pac. 253; Welch v. State, 35 Okla. Cr. 2, 246 Pac. 1113; Lumpkins v. State, supra.

There are several errors assigned which possess merit, but the view we take of this record it is not necessary to consider them. For the reasons herein stated, the court erred in permitting the state, over the defendant’s objection, to go into the general reputation of the defendant’s home as being a place where intoxicating liquors were kept for sale, and defendant’s general reputation, without his first having put his good character in issue.

The judgment is reversed.

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


text:
    BILL VOWELL et al. v. STATE.
    No. A-7360.
    Opinion Filed May 10, 1930.
    (287 Pac. 1108.)
    T. J. Henshaw, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Cleveland county of the crime of having possession of a still, and their punishments fixed as follows: Elmer Vow-ell and Charlie West were each fined $50 and each sentenced to confinement in the county jail for a period of 30 days. Bill Vowell was fined $150 and to be confined in the county jail for 90 days. It is from these judgments and sentences that the defendants herein appeal.

The evidence of the state shows that on the 8th day of November, 1928, the defendants had in their possession a still and worm capable of being used in the manufacture of whisky, and that said still was actually being operated by defendants at the time of their arrest in the manufacture of whisky. The defendants claim that they had heard about this still, and had merely gone to the premises to see it at the time they were arrested by the officers. In rebuttal, the state showed that defendant Bill Yo well’s Ford touring car had been driven in between the house and the cave, and that the still had been set up behind the car after the car had been driven there by defendant Bill Yowell.

The defendants contend, first, that the court erred in overruling their application for a continuance. The application was insufficient, for the reason that it failed to state that the witness was not absent by the procurement or consent of the defendants, and did not state that the defendants had no other witness by whom the facts alleged in the application could be proved. Moore v. State, 17 Okla. Cr. 467, 189 Pac. 1089.

When the application for continuance was presented to the trial court, the county attorney admitted that, if the witness was present, she would testify to the facts stated in the application, and that said facts were true, and thereafter the defendants read the application for a. continuance to the jury as the evidence of the absent witness. The application for the continuance being insufficient, it was not error for the trial court to overrule the same.

The defendants next contend that the evidence is insufficient to support the verdict of the jury. The defendants particularly contend that the state should have introduced the still in evidence, and that it was impossible to make a case without the production and introduction of the still. There is no merit in this contention. The fact of possession in cases of this character may be proved the same as any other fact in the case. The evidence of the state, taken in connection with the facts and circumstances surrounding the defendants, was amply sufficient to support the verdict of the jury.

The defendants next contend that the court erred in overruling their application for a new trial on account of statements made by the juror R. H. Wingate prior to the impaneling of the jury and without the knowledge of defendants. It appears from the record that the defendant Rill Vowell had been tried upon another liquor charge at the same term of court, and had been acquitted, and that the juror Wingate was a member of that jury. Defendants attached to their motion for new trial the affidavit of one Joe Hicks who made affidavit: “That on the 15th day of January, 1929, he heard the said juror, R. H. Win-gate, make the statement that he thought the defendant Bill Yowell was only a country boy, but that he had since learned that he was the biggest bootlegger in the country.”

The record does not contain the examination on the voir dire of any of the jurors. Apparently the defendant, having been acquitted a short time previously by a jury of which the juror Wingate was a member, felt that his case would be perfectly safe in such juror’s hands, and apparently made no effort to ascertain from said juror any information that might be prejudicial to his interests. After the verdict was returned, and the defendant Bill Vow-ell found guilty in the case at bar, he discovers that the juror had made remarks that showed him disqualified to sit as a juror. This case being a misdemeanor, the verdict could have been returned by five jurors. The evidence clearly established the guilt of the defendants. They could not have been prejudiced by the fact that the juror Wingate sat in their trial. Defendants will not be permitted to play fast and loose with the court in matter of juries. In cases like the one at bar, where the defendants apparently made no effort to ascertain the disqualifications of the juror, and permitted a juror, without objection on their part, to sit in the trial of the case who had previously acquitted one of their number ou another charge, they will not be permitted to gamble on their chances of acquittal and then predicate error upon the disqualification of the juror.

It appears from the record that all three of the defendants were equally guilty, but that defendant Bill Vow-ell received a sentence three times greater than did the other two defendants. The defendant Bill Vo well contends that, since the punishment is disproportionate, he must have been prejudiced by the fact that the juror Win-gate sat on the jury. The evidence being the same against all three of the defendants, Bill Vo well’s punishment is reduced to a fine of $50 and confinement in the county jail for a period of thirty days, and, as modified, the cause is affirmed.

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


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    LUTHER SHERRILL et al. v. STATE.
    No. A-7093.
    Opinion Filed April 5, 1930.
    Rehearing Denied May 10, 1930.
    (287 Pac. 747.)

      Ross Rizley, R. B. Loofbourrow, and Orlando F. Sweet, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were by information charged in the first count with rape in the first degree, and in the second count with rape in the second degree; were tried, and the jury returned a verdict of guilty, and fixed the punishment of each of the defendants at one year in the reformatory at Granite. Motion for new trial was filed, considered, and overruled, and the case is on appeal to this court.

The defendants demurred to the information on the ground, first, that the first count of said information fails to allege facts sufficient to charge said' defendants with the crime of rape in any degree; and, second, that the second count of said information fails to allege facts sufficient to charge said defendants with the crime of rape in any degree.

The testimony on behalf of the state tends to show that the defendant Yernie Parmlee came to the home of the prosecutrix, Edith Priddy, on a Sunday evening for the purpose of taking her for a car ride; that the prosecuting witness had been keeping company with Parmlee for about a year; that he had been taking her to parties, church, and neighborhood gatherings; the prosecutrix also knew Luther Sherrill; that, before Parmlee went to the home of the prosecutrix, Sherrill got out of the car a short distance from the home, and waited for the prosecutrix and Parmlee to come and pick him up. Prior to' going to the home of the prosecutrix, the defendants had gone to another home for the purpose of securing a girl, but the parents of the girl would not permit her to gO' with them. The testimony shows that on this occasion Sherrill went to the home, and Parmlee waited some distance from the house.

The testimony tends to show that, after the defendants got the prosecutrix in the car, they drove to various places, and late in the afternoon returned home and found there was no one at home; that the defendants and prose-cutrix then left for the purpose of attending a religious service some distance away; after they had driven some distance from the home of the prosecuting witness, Sherrill purchased some whisky; the prosecuting witness denies she knew anything about the whisky until after it had been purchased, stating that:

“Luther drove into Mr. Whitmers’ place and got the liquor; we then turned north to the Bunchgrass schoolhouse, and then went up to Johnie Carsons, and turned east to Bud Whitmers; we drove down to a canyon, and Luther and Vernie begin to drink the liquor, and then they forced me to take a drink — had me to. At that time they had taken three swallows and I taken one; they would hand it back and forth to each other; they began to swear, and said it was awfully strong; the whisky was taking ef-feet, and Yernie said he was going to be sick at his stomach, and Luther said he wanted to take another swallow; it was finally all drank; they begun to get kinda rough; I mean by getting kinda rough they began to talk smutty to me; he asked me if I would cohabit with him, and I told him I wasn’t that kind of a girl; he says ‘you will anyway’; I jumped out of the car, and went up to a little old bridge, and he caught me before I got across it; the bridge was south of the car, west quite a little ways; then he had Yern help him drag me to the car; they told me if I would go back to the car they would go on to church; but we did not go on to' church; Luther then begun to take my bloomers off and I kicked and screamed and fought him and pinched him; Luther Sherrill and I were in the back seat and Yernie Parmlee was in the front seat; Luther Sherrill did not accomplish any act of intercourse with me until Yern helped him hold me; he was not able to- overcome me my himself; Yernie Parmlee held my hands to my sides, Sherrill got between my legs, one hand around my waist, and got me in a position he could get on me; after Sherrill had penetrated me, Yernie Parmlee turned me loose, and Sherrill held my hands and Vernie got in the same position Sherrill was in, and Luther Sherrill kept telling me to be still; I tried to get away, and they finally pushed me down in the seat again, and Yernie got hold of me and had sexual intercourse with me; it was about a half mile from where this occurred to the closest house; this road where this occurred was just a road used by the community; that is, it was not a public highway; after they got through, they said we had better go back, and I told them I would tell my folks, that there would be something happen, and stated they would have to' do something.”

The testimony of the prosecutrix further shows that, after the whisky was secured by the defendant Sherrill, they continued to drive from place to place until they finally stopped on the road where the road crosses a canyon about a half mile from the nearest house.

The testimony further tends to show that the prose-cutrix in this case was fourteen years of age, and under sixteen, and that the defendants were each under the age of eighteen years. Some days after the occurrence the prosecutrix advised her mother what had taken place, and a letter was written to Yernie Parmlee asking him to come, that something had to be done, tending to show that they thought the prosecutrix, as a result of the cohabitation, might be pregnant.

The testimony of the defendants tends to show that the prosecutrix had been going with different boys to parties and other places, that she drank as much of the whisky as the defendants did, and the defendants both admit they drove from place to place, and that they drove the car down in the canyon where the prosecutrix says they did. The defendant Luther Sherrill in his testimony attempts to shew that, before they got to where they stopped the car, he had been fondling the prosecutrix, squeezing and loving her, and that he had made indecent proposals to her to permit him to have sexual intercourse, and she stated she would if he would prevent her from getting pregnant; that, when the car stopped, the defendant Parmlee was in the front seat of the car, and that he and the prosecutrix were in the rear seat, and that he there, with the consent of the prosecutrix, had intercourse with her; that the defendant Parmlee took a. cushion out of the car, and put it on the ground, and the prosecutrix lay down on the cushion, and Parmlee cohabited with her, while the defendant Sherrill was sitting on the running board of the car smoking a cigarette. The defendant Sher-rill attempts to say that, while they were in the act of cohabitation, the prosecutrix asked him to kiss her three different times. The defendants in their testimony attempt to show that the prosecutrix suggested they withdraw from, the act of cohabitation like some one else had been doing before the conclusion of the cohabitation; the defendants denying that the prosecutrix got out of the car and sought to get away as testified to by her, and that they forcibly returned her from the bridge mentioned by the prosecutrix; that they used no force in cohabiting with the prosecutrix, or that she made any objection whatever to the act of cohabitation with either of the defendants.

The defendants called several witnesses to establish their previous good character in the community where they lived, and by their testimony sought to reflect upon the previous character of the prosecutrix, and attempted to show that the prosecution in this case was the result of the failure of the prosecutrix and her mother to get money out of them. This is in substance the testimony. Fourteen errors are assigned by the defendants alleged to have been committed by the court in the trial of this case. The first error alleged is, said court erred in overruling the demurrer of the plaintiffs in error to the information. An information is sufficient which states facts clearly and distinctly in ordinary and concise language without repetition, and which informs the accused of the offense with which he is charged with such particularity as will enable him to prepare for trial, and so defines the identical offense so that the accused, if convicted or acquitted, will be able to defend himself in case he be indicted or informed against again for the same offense by pleading the record of said former conviction or acquittal. Scott v. State, 40 Okla. Cr. 296, 268 Pac. 312.

Defendants insist the court erred in overruling their motion for a directed verdict in favor of the defendants, when the state rested its case.

Section 1834, C. O. S. 1921, subd. 6, provides:

“Where she is prevented * * * by any intoxicating narcotic, or anesthetic agent, administered by or with the privity of the accused.”

In this case the testimony of the defendants tends to show that the prosecutrix drank as much whisky as they did. If the defendants administered to the prosecutrix intoxicating liquor, and she was under the influence of the same, and by reason of such she submitted to the act of sexual intercourse, then the defendants cannot claim the benefit of the statute, as provided in section 1834, that resistance was not necessary and therefore consent could not be given legally.

To support a charge of rape, female’s resistance need only to be such as to make nonconsent and actual resistance reasonably manifest, having regard for her age, strength, and surrounding circumstances. Bulls v. State, 33 Okla. Cr. 64, 241 Pac. 605.

What were the surrounding circumstances in this case? A fourteen year old girl, taken from her home by the defendants, and driven to a canyon on a country road a half mile or more from the nearest place occupied by any one, whisky administered to her, and then the defendants admit they each cohabited with her; they say she consented; she says she resisted, and that her resistance was overcome by the defendants. The jury heard the evidence, and by its verdict said it believed the state’s evidence and convicted the defendants. We hold the evidence sufficient to warrant the court in submitting the case to the jury. Where there is any evidence apparently credible, which, if believed by the jury, is sufficient to sustain the judgment, this court will not reverse the case on the sole grounds of the insufficiency of the evidence. The demurrer to the' evidence was properly overruled. Loudermilk v. State, 33 Okla. Cr. 146, 242 Pac. 1060.

The defendants next complain of the instructions of the court. A careful examination of the instructions, when taken together, shows that the court fairly and substantially declared the law applicable to the facts in this case.

The defendants complain of the action of the court when the jury was considering the case, when the jury was brought into court. The record has been examined, and we fail to' find anything said or done by the court that could be construed as prejudicial to the defendants. The court’s remarks seem to be clear and void of any appearance of prejudice or bias against the defendants.

Other errors ai’e discussed by the court, but, after due consideration, it is found they do not possess sufficient merit to warrant a reversal of this case. In this case the defendants do not seem to be satisfied with their testimony to attempt to show that the prosecutrix voluntarily consented to the acts of cohabitation, but by other testimony they seek to sho w that her previous actions with men had not been above reproach, in that they offered testimony showing she had cohabited with other men. . This conduct on the part of the defendants is not the usual conduct indulged in by young men who can truthfully go on the witness stand and testify the cohabitation with the prosecu-trix was voluntary. Very few young men desire to slander a young girl, even though they may believe she has committed acts of immorality. It is to be regretted that cases of this kind arise, yet the law must be upheld. The evidence in this case is sufficient to sustain the judgment. The defendants were accorded a fair and impartial trial. Finding no errors in the record sufficient to warrant this court in reversing this case, the judgment is affirmed.

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