text:
    GUY HOUGHTON v. STATE.
    No. A-4619.
    Opinion Filed Nov. 8, 1924.
    (229 Pac. 1117.)
    Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
    Guy Houghton was convicted of the crime of grand larceny, and sentenced to serve one year in the penitentiary, and appeals.
    Affirmed.
    A. J., Stevens, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered in the district court of Woods county on the 21st day of October, 1922, on a verdict of a jury finding the plaintiff in error guilty of the crime of grand larceny, and assessing his punishment as above stated. The information charged the larceny of $95 in money from the person and possession of one A. F. Gilchrist on or about the 8th day of February, 1922. The petition in error and case-made were filed in this court on the 29th day of March, 1923. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the case at the time the same was finally submitted. The evidence of the guilt of plaintiff in error is wholly circumstantial, but the evidence on the part of the state is such as, if believed, is sufficient to sustain the verdict and judgment. Rule 9 of this court provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the case is therefore affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ORBY RENICK v. STATE.
    No. A-4562.
    Opinion Fied Nov. 8, 1924.
    (229 Pac. 1118.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Orby Renick was convicted of the offense of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days.
    Appeal dismissed.
    R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the county court of Carter county on the 6th day of October, 1922, wherein the plaintiff in error, Orby Renick, was adjudged guilty of the offense of unlawful possession of intoxicating- liquor, and sentenced as above stated. The petition in error and case-made were not filed in the Criminal Court of Appeals until February 3, 1923, 120 days after the date of the rendition of the judgment herein. An examination of the record discloses that the trial court made no extension of time for lodging the appeal in this court beyond the 60 days allowed by statute after the rendition of the judgment for taking an appeal in misdemeanor cases under section 2808, Compiled Statutes 1921. This being an attempted appeal from a judgment of conviction rendered in a misdemeanor case, and the petition in error and case-made not having been filed in this court within the time provided by section 2808, supra, this court never acquired jurisdiction of the appeal, and the same is dismissed, and the cause remanded to the trial court.


author: BESSEY, J.

text:
    Ex parte SAM A. WHITE.
    No. A-5307.
    Opinion Filed Nov. 8, 1924.
    (230 Pac. 522.)
    (Syllabus.)
    Pardon — Term “Conviction," as to Pardons and Paroles, Defined. The term “conviction,” in article 6, § 10, of the Constitution, relating to pardons and paroles, denotes the final judgment of the trial court, upon a plea of or verdict of guilty.
    Habeas corpus by Sam A. White for release from custody.
    Writ denied.
    See, also, 27 Okla. Cr. 432, 228 Pac. 1119.
    C. H. Thomason, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

The petitioner, Sam A. White, in his application for a writ of habeas corpus, says that he is illegally restrained of his liberty by the warden of the penitentiary, by virtue of a commitment from the district' court of Okfus-kee county predicated upon a judgment of that court rendered October 15, 1923, adjudging him guilty of manslaughter in the first degree. The petitioner contends that, after the rendition of the verdict and before the judgment of the court was rendered, the Governor of this state, J. C. Walton, issued to the petitioner a parole in due form, and that the parole was by him accepted.

The verdict finding defendant guilty was rendered on October 3, 1923; the parole was issued and delivered on October 12, 1923; and the judgment of the court on the verdict was rendered on October 15, 1923. The sheriff of Okfuskee county and the warden of the penitentiary have refused to recognize the validity of the parole, for the reason that it was issued and delivered before the time the petitioner was formally sentenced.

The Constitution of this state, article 6, section 10, provides:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.”

Section 9227, Compiled Statutes 1921, providés:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles and pardons for all offenses, except cases of impeachment, upon such conditions and such restrictions and limitations as he may deem proper, subject, however, to the regulations hereinbefore prescribed.”

The sole question for consideration in this proceeding is the correct interpretation of the phrase “after conviction,” as found in the sections of the Constitution and statutes quoted. We are here called .upon to decide whether the Governor shall have power to grant reprieves, commutations, paroles, and pardons at any time after a verdict of guilty rendered by tbe jury or plea of guilty, or whether the term “after conviction,” as used in our Constitution and statutes, means the formal judgment of the court following the verdict or plea of guilty.

In general the word “conviction” in criminal procedure is of an equivocal meaning, because of the varied senses in which it is used. For the purpose of classification it may be said to have two meanings, the first the general or ordinary meaning, and second, the restricted and technical meaning. In its general or more comprehensive sense, the term has been defined as applied to one who has been found guilty of some criminal offense by a legal tribunal; a determination of guilt in a criminal prosecution according to some established legal method, as by a plea of guilty, or by being found guilty by a verdict of a jury. The term “conviction” is ordinarily used in legal phraseology to designate a particular stage of a criminal prosecution triable by jury, the point where the jury renders a verdict of guilty, or the establishment of guilt by a plea of guilty.

The word, when used in its more restricted and technical signification, has been defined as the final judgment in a prosecution, conclusively establishing guilt; a final judgment of the trial court on a plea or verdict of guilty; a final judgment of the court in passing sentence: 13 C. J. 906, 907. Whether the term “conviction” is used in its general or in its restricted sense as applied to issuance of pardons and paroles has been variously construed by the appellate courts of the several states.

The Court of Appeals of Virginia, in 1874, in Blair v. Commonwealth, 25 Grat. 850, held that the Governor had authority to pardon a person convicted of a felony by the verdict of a jury before sentence was passed upon him by the court. The Constitution of the state of Virginia at that time authorized the Governor to grant reprieves and pardons after conviction. .

The Supreme Court of Virginia, in 1922, in the case of Smith v. Commonwealth, 134 Va. 589, 113 S. E. 707, 24 A. L. R. 1286, held that, pending a motion to set aside a verdict of guilty and before entry of judgment, one is not convicted, within the meaning of the statute providing for removal from office of a public official convicted of an act constituting a violation of a penal statute involving moral turpitude. In the Smith Case it is pointed out that where a statute provides that "each and every person convicted” of certain crimes mentioned "shall be deemed infamous and shall forever thereafter be rendered incapable of holding any office of honor, trust, or profit, of voting at any election, of serving as a juror and of giving testimony,” it is not the verdict of guilt or the infamous nature of the punishment, but the formal judgment of the court that renders the culprit incompetent. Faunce v. People, 51 Ill. 311.

In Commonwealth v. Lockwood, 109 Mass. 325, 12 Am. Rep. 702, construing the provision of the Massachusetts Constitution, which gave to the Governor the power to pardon offenders but provided that no pardon before conviction should avail the party pleading the same, it was held that a pardon granted after verdict of the jury but before rendition of judgment was valid.

In another Massachusetts ease, Case of Falmouth, Mass. Election Cases (1853 Ed.) 203, construing a constitutional provision that no person shall ever be admitted to hold a seat in the Legislature or any office of trust or importance in. the commonwealth who shall in due course of law have been convicted of bribery or corruption in an election ór appointment, it was held that the word "conviction” applied to final judgment and sentence of the court.

In the ease of State v. Judge of Section B, Criminal Dist. Court, 48 La. 109, 18 So. 943, it was held that the pardoning power of the Governor may operate during the period between the verdict of the jury and sentence by the court pursuant to the terms of the Constitution, which lodge that power with the Governor “after conviction.”

The authorities are practically unanimous in holding that under statutes disqualifying persons from testifying because of their having been convicted of crime, the disqualification does not arise upon the mere rendition of a verdict of guilty, but only when there has been a judgment of conviction. See authorities in Smith Case, 134 Va. 589, 113 S. E. 707, 24 A. L. R. 1288.

The authorities are all practically unanimous in holding that under statutes providing that where persons have been convicted of certain crimes, it shall constitute a disqualification to vote, the word “conviction” means a final judgment. People v. Fabian, 192 N. Y. 443, 85 N. E. 672, 18 L. R. A. (N. S.) 684, 127 Am. St. Rep. 917, 15 Ann. Cas. 100.

In the case of Parker v. State, 103 Tenn. 547, 53 S. W. 1092, the jury brought in a verdict of manslaughter. The entry recording the verdict recited:

“It is therefore ordered and adjudged by the court that the defendant be confined in the penitentiary for a term of two years, and pay the costs of this prosecution, for which execution may issue.”

Afterwards a motion for a new trial was filed and after the overruling of this motion a formal judgment in detail was entered. Pending the hearing on' the motion for new trial a pardon was granted to the accused. It was held, that the pardon, under these circumstances, was valid and effective.

In People v. Marsh, 125 Mich. 410, 84 N. W. 472, 51 L. R. A. 461, 84 Am. St. Rep. 584, it was held that a pardon granted after conviction, and pending a hearing in the Supreme Court, to which the" ease had been removed by bill of exceptions before sentence, was valid, under a constitutional provision that the Governor may grant pardons “after conviction.”

In State v. Alexander, 76 N. C. 231, 22 Am. Rep. 675, the court said:

“At common law the Crown exercised the power of pardon at any time. The consequence was that crimes were smothered. The facts were not brought to light. The person charged was not brought before the public and required to answer the charge and of course the public were dissatisfied. But under our Constitution and statutes, the person charged must be brought before the public in a public trial and face his accusers and all the facts must appear and the jury must find him guilty and the court must sentence him. If then he will ask for pardon, he cannot deceive the pardoning power. ’ ’

Quoting further:

“Inasmuch as the Constitution in the same section in which it authorizes the Governor to pardon‘after conviction,’, requires him to report to the General Assembly not only the conviction but the sentence, is it not intended that there shall be a sentence to report; else how can he report it?”

In the case of Smith v. State, 6 Lea (Tenn.) 647, it was held that conviction was not complete until judgment was rendered on the verdict, within the meaning of the provision of the Constitution, giving the Governor power to pardon ' after conviction.

In the case of Campion v. Gillan, 79 Neb. 364, 112 N. W. 587, 11 L. R. A. (N. S.) 865, 126 Am. St. Rep. 667, 16 Ann. Cas. 319, it was held that under the provision of the Nebraska Constitution the Governor cannot pardon an offense until after conviction by the judgment of the court. The provision of the Constitution (art. 5, § 13) to which reference is made is:

“The Governor shall have the power to grant reprieves, commutations and pardons, after conviction * * * subject to such regulations as may be provided by law, relative to the manner of applying for pardons.”

In the case of Gilmore v. State, 3 Okla. Cr. 639, 108 Pac. 416, 139 Am. St. Rep. 981, the defendant was convicted of the crime of conducting a public gambling house, and was sentenced to pay a fine of $500, and to serve a term of 30 days in jail. From this judgment he appealed to this court. While the case was pending on appeal the acting Governor granted the defendant an unconditional pardon. It was held that an appeal pending in this court does not deprive the Governor of the power to grant a pardon.

While under the facts in the Gilmore Case it did not seem necessary to define the term “conviction,” the court did define it thus:

“In its ordinary sense the term ‘conviction’ is used to designate that particular stage of criminal prosecution when a plea of guilty is entered in open court, or a verdict of guilty is rendered' by a jury; but in a strict legal sense it denotes the final judgment of the court, and imports the final consummation of the prosecution from the complaint to the final judgment of the court by sentence.”

The second syllabus is as follows:

“The term ‘conviction,’ in article 6, § 10, of the Constitution, denotes the final judgment of the trial court, upon a plea of or verdict of guilty.”

In Ex parte Bustillos, 26 N. M. 449, 194 Pac. 886, it is said:

“In. England * * * the power to pardon was vested in the Bang. It was a sovereign right and an attribute of the Crown. The Eling, in his coronation oath, promised to execute justice with mercy.” But “the pardoning power in America, both in the federal and state governments, is not, as it is in Great Britain, an attribute of the executive departments, but it is a power which exists only because it is granted by the people, either by constitutional or statutory provision. ’ ’

The power to pardon or parole a convict must be exercised within the scope of the restrictions named in the grant.

To determine the meaning of the words “after conviction,” as used in the Constitution and statutes, we should not be confined entirely to judicial precedent. Judicial precedent in this case is an uncertain guide, because the courts, in about equal numbers, have reached opposite conclusions. The power lodged with the Governor to grant pardons and paroles “after conviction” is not an inherent power; it is a grant of power by the people for the purpose, chiefly, of correcting any miscarriage of justice by the courts. Ours is a republican form of government, with three co-ordinate branches, the executive, the legislative, and the judicial departments, and it was the intention of the framers of the Constitution that one should not encroach upon the other. So, when the power of the executive to grant pardons was limited to court cases “after conviction,” we think that this term was intended to import a final judgment in a prosecution conclusively establishing guilt, thus eliminating overlapping power and authority over the same case at the same time by the executive and judicial departments. The most rational construction would be that the Governor should refrain from acting until after the final determination of the case, as found by the judgment of the court. For an accused to seek exoneration from two co-ordinate branches of the government at the same time would not be conducive to a harmonious administration of criminal law.

That the framers of the Constitution intended that executive clemency should not be invoked until after final adjudication by the court is further indicated by the fact that the members of the first Legislature, many of whom were members of the convention that framed this provision of the Constitution, provided for a board of pardons (a provision since repealed), which was empowered to investigate and report to the Governor at stated intervals concerning convicts who had been sentenced for crime,- provided for publication and hearings of applications for pardons and paroles at stated times; and provided that the application should state the name of the “convict,” the crime for which he was convicted, and the term of his “sentence.” All these provisions indicate that it was intended that the Governor should act methodically and with deliberation, a method impossible to carry out in the short interim usually intervening between the rendition of a verdict and the formal judgment of the court following the verdict.

Where a question of interpretation of a provision of the Constitution or a statute of uncertain meaning is presented, and similar statutes have been interpreted in sister states in opposite ways, this court will adopt that construction best calculated to carry out the intention of the lawmakers, relative to the subject-matter involved, and to determine the real intent of the lawmakers, and in doing so the court may consider other statutes and establish regulations relating to. the same subject.

We therefore adopt the rule announced in the Gilmore Case, supra, that:

“The term-‘conviction,’ in article 6, § 10, of the Constitution, denotes the final judgment of the trial court, upon a plea of or verdict of guilty.”

The application for a writ of habeas corpus is therefore denied.

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


text:
    GEORGE ALLISON v. STATE.
    No. A-4568.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 1116.)
    Appeal from County Court, Choctaw County; Choice D. Holden, Judge.
    George Allison was convicted of allowing stock to run at large, and he appeals.
    Appeal dismissed.
    Howe & Howe, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

George Allison was by a verdict of a jury rendered in the county court of Choctaw county found guilty of the offense of illegally permitting his hogs to run at large. The penalty assessed was a fine of $1. The Attorney General has filed a motion to dismiss the appeal because it was filed too late; at a date more than 60 days after the final judgment was rendered, and no order appears extending the time; also for the further reason that no notice of appeal was served on the county attorney or court clerk, as provided by statute. The record discloses that both the grounds set forth in the motion to dismiss are well taken. It is therefore ordered that this appeal be and the same is hereby dismissed.


text:
    A. J. NEWMAN v. STATE.
    No. A-4565.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 1118.)
    Appeal from District Court, Lincoln County; Hal Johnson, Judge.
    A. J. Newman was convicted of the crime of embezzlement, and sentenced to six months’ imprisonment in the state penitentiary, and appeals.
    Affirmed.
    J. A. Watson and Jarrett & Speakman, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

On the 24th day of April, 1922, the county attorney of Lincoln county filed in the district court of said county an information charging the plaintiff in error, A. J. Newman, with having embezzled a certain sum of money from the Singer Sewing Machine Company while acting as agent for said company in the town of Stroud, in Lincoln county, Okla. After arraignment and plea of not guilty, the cause was tried to a jury in the month of August, 1922, resulting in a verdict of guilty, with punishment assessed as above stated. Judgment was rendered in accordance with the verdict on August 19, 1922, and the petition in error and case-made were filed in this court on February 8, 1923. The cause was finally submitted on October 6, 1924. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time it was submitted. The record is voluminous, containing more than 500 pages of typewritten matter. The evidence on the part of the state, if believed, is sufficient to sustain the verdict and judgment. Rule 9 of this court provides: "When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.” After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    J. C. WILSON v. STATE.
    No. A-4554.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 279.)
    (Syllabus.)
    Intoxicating Liquors — Manufacturing Whisky — Proof of Mere Preparations Insufficient. Where one is charged with the illegal manufacturing of whisky, the accused cannot be convicted of that offense on a mere showing that he was preparing to make whisky.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    J. C. Wilson was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    The Attorney General, and G. B. Pulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. C. Wilson, plaintiff in error, here referred to as the defendant, was charged with the manufacture of spirituous liquor. At the trial, on November 15, 1922, he was found guilty as charged, the jury assessing his punishment at confinement in the county jail for a period of 30 days, and to pay a fine of $50.

In this case the Attorney General has filed a confession of error, and an examination of the record discloses that the confession of error is well taken. The evidence shows that certain peace officers went to the farm, home of the defendant, and there found locked in a granary a barrel of ground grain in process of fermentation. They also found there a small keg, which the officers said appeared to be a salt mackerel keg, which might have been used as a condenser. No still was found, nor any parts of a still, and no liquor of any kind suitable for use as a beverage. The most that could be presumed from all the facts shown is that the defendant may have been preparing to make whisky, possibly not sufficient to constitute even an attempt.

The court instructed the jury as follows:

“You are instructed that, if you believe from all the testimony and circumstances proven in this case, to your satisfaction, beyond a reasonable doubt, the defendant, J. C. Wilson, did on or about the 16th day of September, 1922, manufacture spirituous liquor, or if you find from the evidence and circumstances proven in this case to your satisfaction beyond a reasonable doubt that the defendant, J. 0. Wilson, didl on or about the date aforesaid, attempt to manufacture spirituous liquor, then you should) find the defendant guilty. Otherwise, you should find the defendant not guilty. ’ ’

The italicized part of this instruction was a misstatement of the law, misleading and prejudicial.

Where the jury was not instructed that they might find the accused guilty of manufacturing whisky, or that they might find him guilty of the lesser attempt of attempting to manufacture whisky, a conviction of the completed offense will be reversed, when the evidence shows only an attempt, or a mere preparation to commit the offense. Brumley v. State, 18 Okla. Cr. 705, 193 Pac. 49; section 2740, Comp. Stat. 1921.

The judgment of the trial court is reversed, and the cause remanded.

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


text:
    C. A. WHITEHEAD v. STATE.
    No. A-4546.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 291.)
    (Syllabus.)
    1. Intoxicating Liquors — Search Warrant on Mere Information and Belief Insufficient. A search warrant predicated on mere information and belief is insufficient. There must be a showing, under oath, setting out facts' showing probable cause.
    2. Intoxicating Liquors — Possession of More than Gallon Merely Prima Facie Evidence of Illegal Possession. An instruction that possession of more than one gallon of liquor, even though the person has it for his own use, makes the possessor guilty of illegal possession- is erroneous. Possession of liquor is merely prima facie evidence of guilt — a presumption that may be rebutted.
    Appeal from County Court, Grady County; J. E. Shelton, Judge.
    C. A. Whitehead was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Holding & Herr and B. C. Searcy, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

C. A. Whitehead, plaintiff in error, was in the county court of Grady county, by a verdict of a jury, found guilty of the unlawful possession of intoxicating liquor, with his punishment assessed at confinement in the county jail for a period of 60 days, and to pay a fine of $50.

The evidence upon which this conviction rests was for the most part procured by means of a search warrant predicated upon an affidavit made wholly on information and belief. Our Constitution, article 2, § 30, provides that no search warrant shall issue except upon a showing of probable cause supported by affidavit, and such affidavit must set forth the facts showing probable cause. Mere belief is not sufficient. Sections 2879, 7009, Comp. Stat. 1921; Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545.

After the admission of testimony, over the objections of the defendant, showing the seizure of one gallon jar of whis-ky and another jar partly full found in the home of the defendant, the defendant took the stand, and said that he had the whisky for his own personal use and not for sale. The state contends that the erroneous introduction of evidence procured by an illegal search was thereby rendered harmless, solely because of the defendant’s admission that he had more than one gallon of intoxicating liquor.

We think the state’s contention is untenable. It was not an admission, strictly speaking, but only an explanation; a claim that he had it for no unlawful purpose; a defense which he had a right to make, and one that could not be impaired by an illegal search. Moreover, the court instructed the jury in part as follows:

“You are further instructed, gentlemen of the jury, that, if you believe from the evidence in this case that the defendant had three gallons of whisky as alleged in the complaint, even though he had the same for his personal use, under the law he will be guilty, and you should so say by your verdict. ’ ’

Under the provisions of our prohibitory law the fact that one has more than one gallon of whisky is not conclusive evidence that such possession is illegal. It amounts to prima facie evidence only — a presumption that may be rebutted. The court by giving the instruction quoted deprived the defendant of his right to a consideration of his evidence tending to rebut 'this legal presumption.

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

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


text:
    BUSTER ROGERS v. STATE.
    No. A-4556.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 279.)
    (Syllabus.)
    1. Searches and Seizures — Search in Woods, Ravines, or Pastures Some Distance from Home not "Unreasonable Search or Seizure.” A search for liquor or appliances for ^'making whisky in woods, thickets, unfrequented ravines, or pastures, not near the place of abode, where the search would in no way invade or disturb the privacy of the home or the legitimate business of the suspected violator of the law, is not an unreasonable search or seizure, within the meaning of the Constitution.
    2. Trial — Instruction as to Effect of Evidence as to Finding Illicit Still Equipment on Defendant’s Premises Held Fair to Defendant. The instructions examined, and held fair to the defendant.
    Appeal from County Court, Adair County; W. H. Martin, Judge.
    Buster Rogers was convicted of manufacturing spirituous liquor, and he appeals.
    Affirmed.
    E. B. Arnold, for plaintiff in error.
    The Attorney General and G- B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from the county court of Adair county, wherein the plaintiff in error, here referred to as the 'defendant, was convicted for manufacturing spirituous liquor, and his punishment assessed at a fine of $200 and 60 days in the county jail,

It appears in evidence that on August 16, 1922, Alex Tindle, sheriff, together with Bruce Evans, who was working in the sheriff’s office, and .W. P. Patterson, undersheriff, found a still on the premises of defendant Buster Rogers, also a deputy sheriff, Mr. Tindle then returned to town and secured a search warrant. He knew that Rogers was, at that time, attending church at Oak Grove and after he got the search warrant he went to Oak Grove to find Rogers. Quoting from Tindle’s testimony:

"Mr. Rogers was attending meeting at Oak Grove, and I had this search warrant with me, and I didn’t want to go search his premises without him present, and I went by there and took him with me and told him that I had a search warrant for his premises, and wanted him along to see what was found on his premises, if anything, and we went up there, and got near the spring south of his place.” •

On the same subject defendant said:

"They wanted to make a little investigation and wanted me to go along, and I went, and they read the search warrant to me on the way, and we got out of the ear at the land and started up to my home.”

The evidence shows that about 200 yards from defendant’s house, behind a bluff, the officers found a furnace with fire in it, a 10-gallon copper boiler, a copper worm, four or five barrels, one barrel about three-fourths full of beer mash, made of peaches, and a quart of moonshine whisky. This still was not far from a peach orchard belonging to defendant, and peaches were then being gathered. The officers confiscated the still and went on up to the house and searched it, and also searched the barn, but found nothing incriminating either place.

Defendant denied having any knowledge of the still being operated on his place. In his brief, defendant claims that the evidence in this case was obtained by an unlawful search and seizure; that the officers had raided the place and discovered the still, and then returned to town to procure a search warrant. The still was located before the search warrant was secured. Upon its discovery the officers returned to town and secured a valid search warrant, and served it upon the defendant before any of the paraphernalia was confiscated or the house and barn searched, or any arrests made.

Under these circumstances, it appears that the officers’ seizure was justified under the warrant, and if not, there was some evidence indicative of waiver. Moreover,’ a search warrant may not be required, where contraband material is found in unfrequented fields, thickets, and underbrush, not a part of the home or home premises and its immediate inclosures. Ratzell v. State, 27 Okla. Cr. 340, 228 Pac. 166.

The defendant’s attempted defense in this regard is inconsistent. He complains that his private home and premises were illegally invaded, and, at the same time, says he knew nothing of the location of this still; that he was not certain it was on his land, but was in a rugged ravine adjacent to, or possibly on, the land of another.

Upon the question of the location of the still, the court instructed the jury thus:

“You are instructed that-the mere fact that the furnace and barrels and other equipment were found within the in-elosure or on the premises of the defendant is not within itself sufficient to warrant the conviction of this defendant, but it is a circumstance tó be considered by you in connection with all the other' evidence in the case, in determining the guilt of the defendant.” .

The instructions, as a whole, were fair to the defendant. Whether or not the defendant had himself been operating the still, or was implicated with others in its operation, were questions of fact for the jury.

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


text:
    BERT CROSSMAN v. STATE.
    No. A-4548.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 291.)
    (Syllabus.)
    1. Constitutional Provision as to Unreasonable Searches and Seizures. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated, and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched, and the person or thing to be seized. Section 30, Bill of Rights.
    2. Searches and Seizures — Search of Person Without Warrant on Mere Suspicion. An officer .has no more right to search the person of one suspected of the commission of a misdemeanor without a search warrant than he has to search his home.
    3. Arrest — Right to Arrest on Suspicion for Commission of Felony. A peace officer may arrest one on a well-founded suspicion for the commission of a felony, where a felony has in fact been committed, and the officer has reasonable grounds to believe that the person arrested was the perpetrator.
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    Bert Crossman was convicted of illegal transportation, and he appeals.
    Reversed and remanded.
    C. R. Reeves, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Bert Crossman, on November 23, 1922, in the county court of Comanche county, was by a jury found guilty of the illegal transportation of a bottle of whisky, with his punishment fixed at confinement in the county jail for a period of 30 days and to pay a fine of $100. From the judgment on the verdict, he appeals.

This conviction rests upon evidence obtained by means of a search and seizure made by a police officer without a warrant. The state contends that the arrest and seizure was accomplished while the accused was violating the law, by transporting this whisky, in the presence of the officer. The defendant claims that he was not, at the time of his arrest, violating the law within the meaning of section 2471, Comp. Stat. 1921, providing that a peace officer may, without a warrant, arrest a person for a public offense committed or attempted in his presence.

The evidence relative to the arrest and seizure was as follows:

“Q. State then just what occurred. A. I walked up to him just as he stepped out of the car and told him to come to me. He kind of stepped back from me; he seen me. I don’t know whether he seen me when he drove up or when I first walked up to him. He kind of stepped back and stooped down as if to hide; maybe I might see the imprint of the bottle. He kind of looked in his car and kind of stooped over. I told him to come over to me and I seen the outline of the bottle in his shirt, and I opened his shirt and taken the whisky.”

This evidence and the bottle seized constituted all the evidence against the defendant.

Section 30 of the Bill of Rights is as follows:

“The right of the people to be secure in their persons, housed, papers, and effects, against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched, and the person or thing to be seized.”

It seems clear that the defendant was arrested on suspicion merely; that the officer saw the imprint of a bulky article inside of the defendant’s shirt, but did not know what the article was until he had forcibly searched the man and seized the package which he afterwards ascertained to be whis-ky.

An officer has no more right to search the person of one suspected of the commission of a misdemeanor without a search warrant than he has to search his house. The constitutional protection applies to both the person and his home. Klein v. State, 26 Okla. Cr. 173, 223 Pac. 201; Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545.

In this case the officer’s suspicion was verified by the subsequent arrest and seizure, but that result would not always follow in other cases. The grave effects of promiscuous arrests and seizures on suspicion in misdemeanor cases would be productive of more evil that could be offset by the good flowing from the occasional apprehension of a.law violator by such methods. If this were permitted, innocent persons would be subject to arbitrary arrest, search and seizure at any time and place; a condition not calculated to enhance the general welfare of the community.

In this connection it should be remembered that a peace officer may arrest one on a well-founded suspicion for the commission of a felony, where a felony has in fact' been committed, and the person has reasonable grounds to believe that the person arrested was the perpetrator. Officers should not lose sight of this distinction between the right to make arrests in felony and misdemeanor cases without a warrant. Section 2471, Comp. Stat. 1921.

The judgment of the trial court is reversed, and the cause remanded. Unless other evidence can be procured the cause should be dismissed.

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


text:
    CLIM ADAY v. STATE.
    No. A-4551.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 280.)
    (Syllabus.)
    Trial — Defendant .not Entitled to Instruction on Circumstantial Evidence, When. Where some of the evidence is circumstantial and some direct, the defendant is not entitled to an instruction on circumstantial evidence as a matter of right.
    • Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Clim Aday was convicted of transporting intoxicating liquor, and lie appeals.
    Modified and affirmed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment of the county court of Cotton county, wherein the plaintiff in error was charged with and convicted of the crime of transporting intoxicating liquor, with his punishment assessed at confinement in the county jail for a period of six months and a fine of $500.

Frank Boles, an undersheriff of Cotton county, for the state, testified that about 10 o’clock at night he was down near the depot and saw a car approach — quoting from his testimony :

“And when I got to the hotel the car lights swung around, and I stepped back into some weeds, and the car run up to within, I suppose, 30 feet of me, and stopped, and when the car moved up, Aday was there with the jug and started southeast, and I called to him to stop, and I called three times, and he did not stop, and I shot in the air, and he was going, and I was going on towards him, and I walked up to within 15 or 20 feet of him, and he was breaking up these pieces of the jug, and when he straightened up and started towards me, and we met 7 or 8 feet from where he was breaking up the jug and some time after I shot, and he said, ‘Don’t shoot,’ and he said, ‘You can’t arrest me without a warrant,’ and I says, ‘I have done it,’ and he says, ‘Give me 10 Or 15 minutes to get them and make bond,’ and I says, ‘All right,’ and I started off and happened to think that judge was out of town, and I went back and told him to come down the next morning.”
“Q. When you went up near where he was breaking the jug did you smell the odor of the jug? A. Yes, sir.
“Q. Could you tell what direction it was coming from? A. No, just smelled it in the air.
“Q. Like the air was full of it? A. Yes, sir.”

Another deputy sheriff in part corroborated Boles.

The defendant complains that the evidence is insufficient to support the verdict, and that the court refused to give an instruction on circumstantial evidence. In our opinion the evidence is sufficient. If the jug in controversy had contained water, molasses, vinegar, or any other nonintoxicating substance, the defendant would not have broken the jug, or other-wisé deported himself as he did.

Following the rule announced in Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102, and Hagerty v. State, 22 Okla. Cr. 136, 210 Pac. 300, where some of the evidence is circumstantial and some direct, the defendant is not entitled to an instruction on circumstantial evidence as a matter of right. The breaking of the jug in the presence of the officer, and its alcoholic contents, as detected by the sense of smell, as well as the conduct of the defendant at the time of his arrest, was direct evidence. Circumstantial evidence, as distinguished from direct evidence, is testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. 8 C. J. 180; 9 C. J. 930.

It is suggested that, even if the defendant is guilty, the punishment assessed is excessive, and that this court should modify it. Nothing appears one way or the other as to the reputation of the defendant, as to his being a law-abiding citizen, or any facts indicating extreme moral turpitude. The extreme penalty should be assessed in extreme cases; the minimum penalty is intended for first offenders, and in cases where the moral delinquency is not great. The sentence will therefore be modified to confinement in the county jail for a period of'-90 days, and to pay a fine of $250, and the judgment as so modified is affirmed.

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


author: MATSON, P. J.

text:
    Ex parte GEORGE HANNERS.
    No. A-5203.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 281.)
    (Syllabus.)
    1. Habeas Corpus — Writ not Available' as Substitute for Writ of Error. On habeas corpus, this court will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors in law on ques- , tions over which the court had jurisdiction. The writ of habeas . corpus cannot be used to perform the office of a writ of error on appeal.
    2. Same — Not Available for Discharge on Plea of Former Jeopardy. The writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy.
    Application for writ of habeas corpus by George Hanners.
    Ruling discharged, and petitioner remanded.
    P. K. Morrill, for petitioner.
    The Attorney General, for respondent.
   MATSON, P. J.

On the 9th day of June, 1924, petitioner George Hanners presented to Thomas H. Doyle, judge of this court, his application for- a writ of habeas corpus to' be discharged from imprisonment by the respondent, J. L. English, sheriff of Jackson, county, Okla.

The petition alleged that petitioner was restrained of his liberty in the county jail of Jackson county by respondent, and that such restraint was illegal, because that, although petitioner was committed pursuant to a judgment rendered in the county court of said county finding petitioner guilty of “a violation” of the prohibitory liquor laws, said judgment is not valid and lawful, in that it was pronounced in the absence of the defendant and without notice to him, and for the further reason that prior to the rendition of said judgment and sentence the said county court had rendered judgment and passed sentence upon, petitioner for the same identical offense for which the pretended judgment was attempted to be imposed, and that the said prior judgment had not been vacated, nullified, or set aside. For which reasons the petitioner asked that the writ issue.

Upon presentation of the petition to Judge Doyle the writ was refused, but a rule was issued to respondent to show cause why the writ should not issue as prayed for, and the petitioner was released on bond of $1,000, conditioned to abide the action and obey the orders of this court in the premises.

No response or answer was made' to said rule until the 27th day of October, 1924, when respondent filed an answer as follows:

“That he is the qualified and acting sheriff of Jackson county, Okla., and that on the 5th day of May, 1924, the petitioner herein, George Manners, was confined in the county jail of Jackson county, Okla., under and by virtue of a commitment issuing from the county court, of Jackson. county, Okla., on April 16, 1924, a certified copy of which is hereto attached, marked Exhibit A for the purpose of identification and reference.
"Respondent denies that said petitioner, George Hanners, is being illegally held in custody, but shows the court that the imprisonment is in all things regular, and that said petitioner, George Hanners, has not been denied any of his constitutional or statutory rights. Respondent further shows that the petitioner, George Hanners, was released under bond'on the 10th day of June, 1924, in accordance with the order of this court. ’ ’

Accompanying said response is a certified copy of the judgment under which the petitioner was committed, which shows upon its face that the petitioner was present in open court at the time judgment and sentence was pronounced upon him. The commitment also shows that petitioner was incarcerated to serve said sentence and judgment on the 5th day of May, 1924, and was released under bond in this proceeding on the 10th day of June, 1924. So that it affirmatively appears that the petitioner had not served, at the time he was discharged under the bond of this court, the full- term of imprisonment under said judgment and sentence.

On habeas corpus it is well established that this court will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors in law on questions over which the court had jurisdiction. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, but should be limited to cases in which the judgment and sentence of the court attacked is clearly void. Ex parte Rupert, 6 Okla. Cr. 90, 116 Pac. 350, and cases cited.

Section 2761, Compiled Statutes 1921, provides:

"For the purpose of judgment, if the conviction is for misdemeanor, judgment may be pronounced in the defendant’s absence.”

Whfie it appears from the certified copy of the judgment attached to the response herein that the petitioner was present in open court at the time judgment and sentence was pronounced upon him, nevertheless under the foregoing statute it would be no ground for his discharge on habeas corpus, even had the judgment been pronounced in his absence as alleged in the petition.

As to the second ground, that the judgment is void because petitioner had prior to that time been sentenced for the same offense in the same court, and that said prior judgment and sentence had never been vacated, it is sufficient to say that these allegations present no new question for decision by this court. It has heretofore been held in an early ease that the writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy. Ex parte Johnson, 1 Okla. Cr. 286, 97 Pac. 1023, 129 Am. St. Rep. 857, and cases cited. See, also, Ex parte Wood, 21 Okla. Cr. 252, 206 Pac. 541. Jeter v. District Court, 87 Okla. 3, 206 Pac. 831.

For reasons stated, the rule is discharged and the petitioner remanded to the custody of the sheriff of Jackson county to serve the remainder of the imprisonment under the terms of the sentence and judgment of the county court of Jackson county rendered in said prosecution on the 9th day of October, 1923.

BESSEY and DOYLE, JJ., concur.


text:
    ROY BROCKMAN v. STATE.
    No. A-4549.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 282.)
    (Syllabus.)
    Continuance — Refusal Because of Absent Witness not Abuse of Discretion. Under all the circumstances shown, the trial court did not abuse his discretion in refusing to grant a continuance.

      Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    Roy Brockman was eonvicted of the illegal possession of intoxicating liquor, and appeals.
    Affirmed.
    C. R. Reeves, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Roy Brockman was convicted in the county court of Comanche county of the illegal possession of intoxicating liquor, with his punishment fixed at confinement in the county jail for a period of 30 days, and to pay a fine of $200.

This conviction rests upon the testimony of officers who saw the defendant drive an automobile to a place in Lawton. He had several bottles with him, on the seat by his side, and some of these he passed to some soldier boys who had just then approached the ear. This constituted such violation of the law in the' presence of the officers as to justify his arrest without a warrant, and a seizure of this and other liquor there found in the car.

The defendant did not take the witness stand in his own behalf, but did produce witnesses who testified that he had the reputation of being a law-abiding citizen. In his brief 'defendant claims the prosecution was framed; that he went to the assistance of the other occupants of the car and helped them to get the car started and then drove the car to the point where he was arrested, at their request. He complains that an absent witness, a Mrs. Kempstead, would have given testimony in support of this claim; that on May 18, 1922, he caused a praecipe for a subpoena for Mrs. Kempstead to be filed, requiring her attendance in court on May 21st, and that the subpoena was returned not served; that she was temporarily absent from the county.

We think the defendant was guilty of laches in not applying for a subpoena earlier. Moreover, there was no positive showing of the actual issuance of the subpoena, and the return of the officer thereon, except the statement made in the application for a continuance. The facts set out in the application for a continuance, if true, could probably have been established by the defendant himself, or by his codefendants. Under all the circumstances shown, the trial court did not abuse his discretion in refusing to grant the continuance.

The judgment of .the trial court is affirmed.

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


text:
    T. B. CHAPMAN v. STATE.
    No. A-4553.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 283.)
    (Syllabus.)
    1. Intoxicating Liquors — Information for Illegal Transportation Held Sufficiently Definite. An information charging the plaintiff in error with the illegal transportation of one-half gallon of spirit- ' nous liquor, to wit, corn whisky, from the street in front of the Liberty rooming house in Cotton county, Okla., to the back steps of the Liberty rooming house, held sufficient.
    2. Witnesses — Cross-Examination—Right to Show Bias, Interest, or Prejudice. For the purpose of testing the credibility of a witness, the plaintiff in. error had a.right, on cross-examination, to show bias, interest, or prejudice, if any he had.
    3. Trial — Right to Instruction on Circumstantial Evidence. A defendant is not entitled, as a matter of right, to an instruction on circumstantial evidence, except in cases where the evidence is wholly circumstantial.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    T. B. Chapman was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.

      Walter Madden and D. B. Hubbell, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment of the county court of Cotton county, in which the plaintiff in error, T. B. Chapman, was charged with the offense of transporting intoxicating liquor. At the trial the jury found the plaintiff in error guilty as charged, and fixed his punishment at confinement in the county jail for a period of 90 days, and to pay a fine of $250.

The facts appearing in evidence are undisputed. The record shows that Tom Adkins, a member of the police force of Walters, at about 12 o’clock at night saw the plaintiff in error, a man named Albright, and a woman in an automobile which had just been driven up to the front of the Liberty rooming house; that plaintiff in error got out of the car with a half-gallon fruit jar in his hand, and with the other hand he was attempting to force or assist the woman out of the car. As the officer approached, the plaintiff in error went into the rooming house with the fruit jar. The officer arrested Albright and the woman, and directed another officer to go to the rear of the place to watch the rear exit, and sent for a search warrant to search the premises.

In the meantime, the plaintiff in error communicated with a friend, a Mr. Houston, who worked at the Palace garage, and directed him to go to the back entrance of the rooming house, where he would find a fruit jar, and to take the jar and contents and secrete them, so that the officers could not find them. Houston attempted to do as directed but while so doing was arrested for transporting the jar of whisky from the back door of the rooming house to a spot about 85 feet distant, where he had secreted it in some weeds. The plaintiff in error was charged with conveying whisky from some unknown point in this rooming house; Houston was charged with conveying it from the rear of the rooming house to the spot where he hid it.

It is urged in this appeal that the allegations in the information were indefinite; that thé averments did not sufficiently inform the plaintiff in error of the nature of the charge he was required to meet.

The information charged the plaintiff in error with the illegal transportation of one-half gallon of spirituous liquor, to wit, corn whisky, from the street in front of the Liberty rooming house in Cotton county, Okla., to the back steps of the Liberty rooming house. It would have been better for the county attorney to have designated in the information the name of the street and the town where this rooming house was located, but, under the circumstances disclosed by other portions of the record, it conclusively appears that the plaintiff in error was not misled; that he knew the location of the rooming house; and that he was sufficiently apprised of the nature and circumstances of the offense charged, and that he was in no way misled by any vice appearing in the information. Having suffered no wrong in this regard, the failure to plead more definitely was harmless.

The objection urged to this information may be distinguished, both in law and in fact, from like questions raised in the cases of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, and Hatfield v. State, 14 Okla. Cr. 514, 175 Pac. 531. The distinguishing features will be apparent, upon an analysis of the facts and reasons recited in those opinions.

Houston was one of the witnesses for the state, and on cross-examination was interrogated thus:

“Q. They arrested you, did they, Mr. Houston? A. Yes, sir.
“Q. Charged you with transporting? A. Yes, sir.
“Q. And you are under bond at this time?
“By Mr. Huff: Objected to by the state of Oklahoma as incompetent, irrelevant, and immaterial, and has nothing to do with this case.
“By the Court: The objection is sustained.
“To which ruling of the court the defendant excepts.
‘ ‘ Q. And I will ask you, Mr. Houston, if it is not a matter of .'fact that the county attorney has agreed to dismiss your case, if you testify in this case against this defendant?
“By Mr. Huff: Objected to by the state of Oklahoma, for the reason that the same is incompetent, irrelevant, and immaterial, and has nothing to do with the issues in this case.
“By the Court: The objection is sustained.”

For the purpose of testing the credibility of this witness, the plaintiff in error had a right to show, on cross-examination, any interest, bias, or prejudice he might have, if any. It was error for the court to exclude the testimony sought to be elicited, as indicated above, and where an error of this character operates to the prejudice of a defendant it may be grounds for a reversal, but not necessarily so in every instance. Whether or not this witness was offered immunity is of little consequence, under all the facts and circumstances shown. Houston was not an accomplice in the offense for which the plaintiff in error was here being tried; he was guilty of a separate, subsequent transportation, made at the request of the plaintiff in error. There could be no advantage inuring to Houston to implicate the plaintiff in error in the previous transportation, except, perhaps, as a circumstance which might tend to mitigate his punishment for his own offense. Be that as it may, the record shows that Houston was a friend of the plaintiff in error, and an unwilling witness against him. His story coincides with all other portions of the evidence relating to the finding and recovery of the jar of whisky found in the weeds a short distance from the rear of this rooming house.

The facts were such that the promise of immunity to Houston, if there was such promise, could not have altered his story, or, if it had been altered, the substance of it was supplied by the testimony of officers who were watching the rear of the rooming house, and saw Houston convey the whisky to the place where it was found. The refusal of the court to allow the witness to be so cross-examined was error, but, for the reasons stated, it will not be held sufficient to work a reversal of the judgment below.

Plaintiff in error complains, further, that he was convicted upon circumstantial evidence, and that the court should have instructed the jury upon the law of circumstantial evidence. The evidence in this case was for the most part direct. This court has held a number of times that a defendant is not entitled as a matter of right to an instruction upon circumstantial evidence, except in cases where the evidence is wholly circumstantial. Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102; Hagerty v. State, 22 Okla. Cr. 136, 210 Pac. 301.

The judgment of the trial court is affirmed.

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


text:
    GEORGE DOWNING et al. v. STATE.
    No. A-4539.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 285.)
    (Syllabus.)
    1. , Trial — Question for Jury — Waiver of Issuance of Search Warrant. Where a public rooming house is searched and liquor seized, the question of whether the persons in charge waive the issuance of a search warrant may be a question of fact for the jury. In this case there was testimony tending to show that the accused waived this right.

      2. Instructions Held Proper. The instructions relating to a waiver of the issuance of a search warrant and the right of an officer to make an arrest without a warrant for an offense committed in his presence held proper.
    Appeal from County Court, Ottawa County; Q. P. Mc-Ghee, Judge.
    George Downing and Frances Downing were convicted of the illegal possession of intoxicating liquor, and they appeal.
    Affirmed.
    Stalcup & Weaver, for plaintiffs in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

George Downing and Frances Downing, plaintiffs in error, defendants in the trial court, were in the county court of Ottawa county convicted of the illegal possession of a large number of bottles of whisky. The proof shows that on May 6, 1922, this whisky was found concealed within a hidden receptacle back of a removable panel in the wall of the rooming house operated by the defendants. The punishment of George Downing was fixed by the court at confinement in the county jail for a period of 30 days and to pay a fine of $500; the penalty assessed against Frances Downing was a like jail sentence, and a fine of $100.

The proof shows that this rooming house had been frequently searched for intoxicating liquor prior to this time, and that a restraining order had been issued against these defendants, restraining the use of the premises for illegal distribution of liquor. That it was a place of public resort, frequented by persons who were in the habit of drinking intoxicants. The conduct of the defendants at the time of their arrest, in connection with all the other circumstances shown, indicated that they had the liquor there for an illegal purpose.

Defendants say that the evidence introduced was procured by means of an illegal search and seizure. On this point there was evidence to the effect that legal process authorizing a. search and seizure was waived. This question of waiver, like other issues of fact, was for the jury; the court so instructed the jury, and also instructed the jury as to the right of an officer to make an arrest and seizure as an incident to the breaking of one of the bottles of whisky in the presence of one of the officers who placed the defendants under arrest. We assume, therefore, that the jury found these issues of fact in favor of the state.

The judgment of the trial court is therefore affirmed.

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


text:
    LESLIE ALLEN v. STATE.
    No. A-4682.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 277.)
    (Syllabus.)
    1. Rape — Proof that Defendant Was Under ,18 Years of Age Matter of' Defense. Under section 1835, Compiled Statutes 1921, on a charge of rape alleged to have been committed on a female over the age of 14 years, proof of the fact that defendant at the time of such act was under the age of 18 years is a matter of defense, following Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668, and Williams v. State, 17 Okla. Cr. 452; 190 Pac.,.892. , '
    2. Appeal and Error — Harmless Error — Admission of Rebuttal Evidence as Evidence in Chief. The admission of evidence in chief, which was properly admissible as rebuttal evidence, should not result in a reversal of the judgment, in the absence of a clear showing that prejudice resulted therefrom.
    3. Sufficiency of Evidence.. Evidence examined, and held sufficient to sustain the verdict and judgment.
    Appeal from District Court, Choctaw County; G. M. Barrett, Judge.

      Leslie Allen was convicted of the crime of rape in the second degree, and sentenced to imprisonment in. the reformatory for two years, and he appeals.
    Affirmed.
    Warren & Warren, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

The plaintiff in error, Leslie Allen, was charged with the crime of rape, in the district court of Choctaw county. Said crime, according to the allegations of the information, was charged to have been committed-in Choctaw county on the 12th day of August, 1922, by accomplishing an act of sexual intercourse with one Myrtle Nelson, a female person under the age of 16 years, and not the wife of the said Leslie Allen; the said Leslie Allen being a male person over the age of 18 years.

The conviction of plaintiff in error resulted, at the conclusion of a jury trial had in the district court of said county at the October term, 1922. The jury returned a verdict of guilty of rape in the second degree, and left the punishment to be assessed by the court. On thé 15th day of November, 1922, the court sentenced the plaintiff in error to serve two years in the state reformatory at Granite, Okla. The petition in error and case-made were filed in this court on the 14th day of May, 1923, and the case was finally submitted on the record on the 9th day of October, 1924.

No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the. time it was submitted. The record has been examined and considered in connection with the errors assigned. The questions presented raise the issue of the sufficiency of -the evidence, and of the admission of certain alleged incompetent evidence. The evidence alleged to have been improperly admitted was competent for impeachment purposes, and related to the question of the age of the plaintiff in error at the time this alleged offense was committed. The mother of the plaintiff in error, as a witness in his behalf, testified that plaintiff in error at that time was under the age of 18 years. The proof on the part of the state disclosed that the prosecuting witness was over the age of 14 years. It would have been a complete defense to this prosecution had the defendant convinced the jury of the fact that he was under the age of 18 years at the time the offense was alleged to have been committed. It was not incumbent upon the state in the first instance to establish the accused’s age. Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

However, the state, under a mistaken impression of its burden, attempted by one witness to show that the mother of the accused had stated, prior to the commission of the offense, that the accused was 19 years of age. This evidence was entirely proper to impeach the testimony of the mother of the accused, and was competent in rebuttal. Other evidence of the like nature was afterwards admitted in rebuttal. While the evidence of this particular witness was irregularly admitted, we are of opinion that its admission was not sufficiently prejudicial to authorize a reversal of this judgment.

The foregoing constitutes the only substantial legal question raised in this appeal. It is contended, however, that the evidence is insufficient to sustain the verdict and judgment. In this connection, it is contended that the testimony of the prosecuting witness is contradictory and unsatisfactory, and wholly uncorroborated. While it is shown that the prosecuting witness made certain contradictory statements, the record also discloses a reasonable explanation of the same, and, further, there is considerable corroboration of the testimony of the prosecuting witness. This assignment of error therefore directs itself more to the weight of the evidence and credibility to be given to the state’s witnesses, rather than to the sufficiency of the evidence. On the whole, we believe the evidence of the state to have been sufficient, if believed by the jury, as it evidently was, to support the verdict and judgment.

The conclusion is reached, therefore, that no error occurred during the progress of the trial sufficiently prejudicial to authorize or require a reversal of this judgment.

The judgment is therefore affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    MATTHEW PRIESTLY v. STATE.
    No. A-4555.
    Opinion Filed Nov. 15, 1924.
    (230 Pac. 277.)
    (Syllabus.)
    Appeal and Error — Instruction on Prima Facie Evidence Held not Prejudicial. An instruction relating to prima facie evidence examined, and held not misleading or prejudicial under the circumstances in this case.
    Appeal from County Court, Muskogee County; Enloe Y. Vernor, Judge.
    Matthew Priestly was convicted of illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    M. D. Hartsell, for plaintiff in error.
    George P. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

This appeal is brought to reverse a conviction in the county court of Muskogee county, wherein the plaintiff in error was found guilty of the illegal possession of intoxicating liquor, with his punishment assessed at confinement in the county jail for a period of 90 days and to pay a fine of $150.

The evidence shows that plaintiff in error, defendant in ' the trial courts was apprehended by peace officers in possession of 3 gallon jugs of corn whisky on the streets of Muskogee,' before daybreak on the morning of August 23, 1922. The evidence indicates that the defendant, when apprehended, was in the act of violating the prohibitory law in two ways. First, it appears that he had possession of this whisky, with intent to violate the law, and, second, he was engaged in the act of illegal transportation. In this instance the latter included the former, and the county attorney had a right to elect to try him for illegal possession, as was done.

The defendant, when arrested, claimed he was conveying this whisky for another person, constituting further proof of his intent to violate the law — facts constituting no excuse or defense to the offense charged. .

Defendant complains of an instruction given by the court relating to prima facie evidence. Portions of the instruction complained of might, under other circumstances, have been misleading, but under the facts in evidence the defect, if any there was, was harmless. The verdict was not based on prima facie evidence, but on positive proof conclusively establishing guilt.

The judgment of the trial court is affirmed.

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