text:
    SUBER v. STATE.
    No. A-11166.
    June 7, 1950.
    (219 P. 2d 644.)

      Fred M. Black and Sam C. Oliver, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Dolly Laura Súber, was charged in the district court of Oklahoma county with the murder of one Hazel Mae Moore on February 15, 1948, by allegedly stabbing the deceased in the left breast with a knife; was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of twenty-five (25) years imprisonment in the State Penitentiary, and has appealed.

The first assignment of error is that the evidence was not sufficient to sustain the conviction of manslaughter in the first degree.

The proof of the state showed that the deceased, Hazel Mae Moore, and the defendant had resided in a two-story apartment house located at 105% South Douglas in Oklahoma City, which was owned by the father of the defendant. Both of the parties were Negroes. The defendant was 38 years of age at the time of the difficulty, and the deceased was 24 years old.

Johnnie Mae Pratt testified that she lived at the apartment house where the defendant and Hazel Mae Moore also lived; that on the night of the homicide in question the deceased came home about 2:30 a. m. and the witness let her in the door; that Hazel Mae Moore stated that someone had hit B. W.’s car and for her to go upstairs and tell Mm to come down and see about it; that the deceased then went to her hoom, sat down on the bed and started to put a hairnet on her head; that the defendant came into the room and said, “Hazel told a damn lie about B. W.’s car”; that Hazel Mae Moore turned around and said, “Dolly don’t take your spite out on me”; that the defendant then hit Hazel Mae Moore and she saw blood spurting from Hazel Mae Moore; that at the time the blow was struck the deceased was not doing anything. She did not have her hands up, she had on a sweater and a skirt without any pocket and was not attempting to harm the defendant in any way.

The evidence further showed that immediately after the deceased was struck with a knife she ran out of the room and commenced “hollering for help”; that she succumbed on the porch of a neighbor’s house and died before an ambulance arrived.

The undertaker who examined the body of deceased testified that he found a knife wound just above the left breast and below the clavicle and that the cause of death was the loss of blood as a result of the knife wound. He further testified that the deceased had on a knitted sweater and a light green skirt, neither of which had pockets in them. There was other testimony corroborative of the above related evidence of the state.

The defendant in her own behalf testified to substantially the same state of facts as Johnnie Mae Pratt up to the time of the entrance, of the defendant into the room of the deceased. Defendant swore that she and the deceased had some words after she entered the room and the deceased had her coat on the door; that deceased reached in a pocket of her coat to get something and defendant backed up by the kitchen cabinet for a knife which' was lying there and that deceased started towards her saying, “I will kill'you, you black bitch”, and defendant then stabbed her; that the deceased was a big woman weighing over 200 pounds; that the deceased carried a knife with her known as an “East Dallas Special”.

The defendant put her reputation in issue. Several witnesses testified that her reputation was good, while in rebuttal the state introduced the testimony of several witnesses who swore that her reputation in that respect was bad.

In the case of Neill v. State, 89 Okla. Cr. 272, 207 P. 2d 344, this court stated:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Tit. 22 O.S. 1941 § 745.
“Verdict of jury in homicide case based upon conflicting evidence will not be disturbed on appeal on ground that the evidence is insufficient to sustain the judgment.”

This court does not weigh the, evidence and determine a conflict, as those are matters for determination by the jury under proper instructions. However, in the instant case the evidence overwhelmingly points to the guilt of the accused.

The second proposition presented in defendant’s brief is that the trial court committed error' in admitting in evidence the signed statement of the defendant which allegedly had been taken from her in violation of her constitutional rights. When the question of the admissibility of this statement was first interposed, the trial court properly excused the jury from the courtroom and heard the evidence pertaining to the taking of the statement in the absence of the jury. The statement was in question and answer form and, according to the evidence of the officers and the stenographer who took the statement in shorthand, it was entirely voluntary on the part of the accused. There was no evidence to the contrary. The defendant did not testify that she gave the statement because of threats or coercion or any undue influence. The written statement admitted in evidence did not substantially differ from the testimony given by the defendant at the trial with the exception that in the statement she claimed that the deceased reached into a pocket of her sweater for something while in her testimony given at the trial she said that deceased reached in the pocket of a coat which was hanging on the door.

In the recent case of Cornell v. State, 91 Okla. Cr. 175, 217 P. 2d 528, 529, this court held:

“Where.the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show the fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

Wé find that the trial court followed the law correctly in his handling of the evidence pertaining to the alleged confession and correctly instructed the jury pertaining to it.

It is contended that the punishment was excessive. A close examination of the record fails to disclose any justification at all for this killing. We have found nothing that could be construed as in mitigation of this offense, or that would justify the court in making a reduction of the sentence. The judgment and sentence of the district court of Oklahoma county is accordingly affirmed.

BRETT and POWELL, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    LAMB v. STATE.
    No. A-11272.
    June 7, 1950.
    (219 P. 2d 256.)

      Paul W. Updegraff and Harry G. Foreman, Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, Millard Lee Lamb, defendant below, was charged in the justice of the peace court of Cleveland county, Okla., with the offense of driving an automobile without a driver’s license. Title 47 O.S.A. 1941 §§ 274, 310. The defendant pleaded guilty, his plea was accepted and he was fined the sum of $10 and costs in the sum of $9.50, which said fine and costs the defendant paid. Upon the payment of the judgment rendered against him- together with the costs the ■ judgment and sentence ’rendered against him became satisfied, and completely discharged.

This appeal is predicated upon the fact that included in the costs taxed against the defendant was the sum of fl.

The aforesaid sum of f 1 was assessed and sought to be collected under the provisions of House Bill 492, Session Laws 1949, page 384, 57 O.S. Supp. § 361 et seq., as all other court costs, and to be transmitted quarter-annually to the State Treasurer “who shall deposit the same in a special fund designated, as ‘The Parole Fund’ ” of the Pardon and Parole Board in defraying salaries and expenses of the Pardon and Parole Officer and his assistants. After paying the sum of fl, as in said act provided, the defendant filed his motion in the justice of the peace court to reassess the costs. The justice of the peace overruled said motion and thereupon the matter was appealed to the district court with like result and thereafter this appeal was taken to this court. In said appeal the defendant contends that the attempt of the Legislature to make and collect said cost assessment as provided in House Bill 492, Session Laws 1949, page 384, is unconstitutional and void, and the trial court erred in overruling his motion to reassess the costs. The procedure invoked, with which to raise this question on appeal, is predicated entirely upon the provisions of the Civil Code, a well recognized remedy in civil cases. Title 12 O.S.A. 1941 § 953; Caldwell v. Traub, 172 Okla. 12, 43 P. 2d 1047, all of which is inapplicable herein. However, it is well known that proceedings in civil and criminal actions are governed by different code provisions.

Under the Criminal Code there is no procedure provided or recognized for retaxing the costs in a criminal case, or appeal from an order of the trial court overruling the defendant’s motion so to do, as was employed herein. The only method or procedure provided for taking an appeal to the Criminal Court of Appeals is that provided under- Title 22 O.S.A. 1941 § 1051, by which litigants and this court are bound, it reads as follows, to wit:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed.”

This section has been construed to permit appeals only from the judgment itself rendered against a defendant, and not from intermediate or ancillary orders. Settle v. State, 31 Okla. Cr. 257, 238 P. 499. In McLellan v. State, 2 Okla. Cr. 633, 637, 103 P. 876, 877, it was said:

“An appeal does not lie to this court from any ruling or order made by the trial court before final judgment is rendered and sentence has been pronounced. When a final judgment is rendered, and an appeal is taken therefrom, then any and all rulings or orders made during the trial are subject to review by this court, if properly saved by exceptions and contained in the cases-made or transcripts of the record.”

See, also, In re Opinion of the Judges, 18 Okla. Cr. 20, 26, 192 P. 597, 599, wherein in part it was said:

“While no motion for a new trial or in arrest of judgment was interposed in behalf of defendant in this case, the statute (section 5988, Revised Laws 1910 [22 O.S. 1941 § 1051] ) provides that appeals to this court may be taken by defendant as a matter of right from any judgment rendered against him, and, construing said statute, this court has in numerous cases held that the appeal in a criminal cause lies from the final judgment rendered against defendant, and not from any intermediate order or ruling of the trial court made during the progress of the trial.”

In Gibson v. State, 87 Okla. Cr. 260, 197 P. 2d 310, wherein the defendant sought to appeal after judgment and sentence from an order overruling his motion to withdraw a plea of guilty and for a writ of error coram nobis, this court in sustaining the trial court said:

“In the early case of Houser v. State, 26 Okla. Cr. 265, 223 P. 409, it was held:
“ ‘Appeals to the Criminal Court of Appeals are from the final judgment against the defendant.’
“In Merrill v. State, 11 Okla. Cr. 278, 145 P. 1109, it was held by this court that there is no statute authorizing an appeal from an order denying a motion for a new trial except as incidental to an appeal from a judgment of conviction. The same rule is applicable to any other order made during the progress of a criminal cause such as the order here attempted to be appealed from.
“The motion of the defendant to withdraw his plea of guilty made after the judgment and sentence was pronounced and the order overruling the same, was an order made in the progress of the case and such as could only be reviewed upon an appeal from the final judgment which was rendered against the accused.”

It is apparent that the attempt of the defendant herein to invoke civil procedure for retaxing costs is inapplicable in criminal cases. But the defendant is certainly not without a remedy, where he avails himself of it before satisfying the judgment rendered against him.

Under the criminal procedure there are two avenues for relief available to defendant where costs are unlawfully taxed against him, one is by appeal of the entire case on the judgment rendered against the defendant which includes all intermediate and ancillary orders, as here-inbefore discussed. Title 22 O.S.A. 1941 § 1051, and the other is by habeas corpus in a proper case. Ex parte Fowler, 85 Okla. Cr. 64, 184 P. 2d 814; Ex parte Lee, 88 Okla. Cr. 386, 203 P. 2d 720.

Under our Code of Civil Procedure one may not be imprisoned for nonpayment of costs, but under the Code of Criminal Procedure the person adjudged guilty with costs to pay, may be imprisoned for failure to pay the costs necessarily incident to the trial of a criminal action. Title 28 O.S.A. 1941 § 101, reading in part as follows, to wit:

“* * * All costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, * *

See, in this connection, Ex parte Alvarado, 54 Okla. Cr. 127, 15 P. 2d 147, and cases therein cited. Hence the costs herein sought to have been collected could have been satisfied by the defendant’s incarceration at the rate therein provided for or in this case for one day. Upon being taken into custody the defendant could have applied for a writ of habeas corpus wherein the constitutionality of his restraint could have been determined. Such is, however, not the situation confronting this court. The defendant has fully satisfied the judgment by payment of the fine and costs and all questions in regard thereto are now moot, because the procedure employed does not confer jurisdiction on this court to determine the issues involved. Here let us say that we do not make the law, that is a legislative function. We merely construe the law as it is written. We are bound by procedural prescriptions established by the Legislature, just as we are in matters of substantive law. In fact, procedural law is most important. It provides the orderly processes by which justice is administered. It is to substantive law what the skeleton is to the human body. It provides strength, symmetry and beauty to .the body of the law as does the skeleton to the human body and without it there could be no orderly administration of justice. Procedural law defines the methods by which courts can acquire jurisdiction, as well as defining the limits of jurisdiction. Before this court can act in any .case, its jurisdiction must be established. The procedure adopted herein is inadequate to confer jurisdiction, and being without jurisdiction, the first fundamental prerequisite for adjudication, we are powerless to invoke the powers of this court. We had much rather have passed on the merits of the ease, than to have this proceeding fail on a technicality. But not every technicality is a shadow. Some technicalities partake of substance,, as herein. When such is the case, we cannot ignore them. This case presents important questions involving a fine constitutional point. Nevertheless, the procedure pursued herein confers no jurisdiction upon this court to hear and determine the issues involved. When the matter is properly brought before us, we shall be glad to pass upon the merits, and therein determine whether the cost herein assessed is a necessary incident to the administration of justice, and whether the Legislature can levy through the courts, as costs, a tax of $1 in a criminal case to pay the salaries and expenses of parole officers, an arm of the Executive Department. But until the same is properly before us, we are without authority of law to determine the issue herein involved. For all of the above and foregoing reasons, the attempted appeal herein is dismissed.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J.

text:
    OWREY v. STATE.
    No. A-11177.
    June 7, 1950.
    (219 P. 2d 255.)
    Earl Boyd Pierce, Pierce & Pierce, Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   POWELL, J.

The plaintiff in error, Ira Condy Owrey, alias Floyd Walters, hereinafter called defendant, was convicted in the district court of Muskogee county on an indictment of forgery, second degree, and sentenced to serve five years in the penitentiary.

The case was tried on May 17, 1948, judgment and sentence ’ entered on June 3, 1948, and the appeal was perfected to this court on November 29, 1948. The case was set for oral argument on March 22, 1950. No brief has been filed and no appearance for oral argument made.

When an appeal is made to this court, and no brief in support of the petition in error is submitted, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to determine if it sufficiently supports the judgment, and, if no fundamental error is apparent, the case will be affirmed. See Whitlow v. State, 85 Okla. Cr. 2, 184 P. 2d 253.

We have examined the record and find that it properly charges the offense of forgery second degree, and have read the evidence and instructions of the court.

We conclude that the evidence sustains the verdict and the judgment. No judicial error is apparent.

The case is therefore affirmed.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    STATE v. SIMPSON et al.
    No. A-11179.
    June 14, 1950.
    (219 P. 2d 639.)

      Wyatt, Wyatt & Edwards and Joe H. Reily, Shawnee, for defendants in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., and Shelton Skinner, Co. Atty., and Earl P. Enos, Asst. Co. Atty. Pottawatomie County, Shawnee, for plaintiff in error.
   JONES, P. J.

Bill Simpson and R. E. Tillery were charged by an information filed in the county court of Pottawatomie county with the offense of illegal transportation of intoxicating liquor. The defendants filed a motion to suppress the evidence, in which it was alleged that the search and seizure of the intoxicating liquor, which formed the basis for the prosecution, was in violation of the constitutional rights of the defendants. Evidence was taken at the hearing on the motion to suppress the evidence and at the conclusion of the hearing the trial court sustained the motion. Thereupon upon further motion of the defendants to dismiss the prosecution the court entered an order dismissing the case against the defendants and discharging their bond.

This appeal was taken by the state from the action of the court, and the reserved question of law presented by the appeal is that the trial court allegedly erred in sustaining the motion to suppress evidence.

At the hearing on the motion to suppress evidence, it was disclosed that Delbert Motley and Herbert Stroud, two deputy sheriffs of Pottawatomie county, had information that the defendant Tillery was engaged in the illegal sale of whisky. On September 7, 1948, Motley placed a telephone call to phone No. 393 in the city of Shawnee, which was the telephone number of Tillery. When the person answered the call Motley asked if it was Ray and the answer was “yes”. Motley then said, “I am Ed Edwards and I operate Ed’s Paint and Body Shop on East Highland Street”. Motley further said, “I would like to have some whisky for a party”, and the person answered, “I will try to see you”. The call was placed by Motley at 3:30 p. m. and Motley directed the person to deliver the whisky at Ed’s Paint and Body Shop at 4:30 p. m. At 4:10 p. m. the defendant Bill Simpson drove an automobile up in front of Ed’s Paint and Body Shop. Ed Edwards, the owner of the place, asked him if he had anything to drink and when Simpson saw the officers answered, “not right now”. Motley testified that he and Stroud walked out to the car which Simpson was driving and Simpson threw his leg over a package on the seat, and that he heard some bottles rattle; that Officer Stroud inquired, “What do you have in that sack?” and Simpson said, “sandwiches”; that Stroud asked to look in the sack and Simpson objected and said, “You have no authority to do that”, but that Stroud went ahead over the protest of Simpson, seized the sack, examined it, and found three pints of Seagram whisky in it. They then arrested the defendant, took him to jail, and upon returning to the car and searching it, found additional whisky concealed in the automobile. Motley was asked the specific question as to whether either he or Stroud knew that there was whisky in the car, to which he answered, “We knew that this car had been delivering whisky, but at that time we did not know whether there was whisky in the car or not”. The officers had no warrant for the arrest of either Simpson or Tillery and had no search warrant for the automobile.

The search of the automobile is attempted to be justified on the theory that a misdemeanor had been committed in the presence of the officers, which justified the arrest of the accused and the search of his automobile. However, the principal contention of the state is that the officers acted upon' a belief reasonably arising out of the circumstances known to the searching officers, that the automobile contained contraband whisky, and that a search without a warrant upon such reasonable belief • was valid. This is the probable cause rule followed in many decisions of the Federal Courts: Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790; Husty v. United States, 282 U.S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A.L.R. 1407; Scher v. United States, 305 U.S. 251, 59 S. Ct. 174, 83 L. Ed. 151.

Oklahoma does not follow the federal rule in this regard. The .Constitution and statutes of Oklahoma as interpreted by the decisions of this court for more than 40 years is that where the offense is not a felony an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence, and, where the officer does not know of the act constituting the offense, it is not committed in his presence. Bowdry v. State, 64 Okla. Cr. 86, 77 P. 2d 753; Tucker v. State, 62 Okla. Cr. 406, 71 P. 2d 1092; Taylor et al. v. State, 36 Okla. Cr. 431, 255 P. 157; Jones v. State, 82 Okla. Cr. 91, 166 P. 2d 443; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623; Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219.

The facts in the instant case are similar to those in Jones v. State, supra. There, two officers saw a known bootlegger parked about % of a mile off the highway. They turned off the highway to investigate, but before they reached the parked car the defendant bootlegger started it and commenced driving it toward the officers’ car. The officers turned on their red warning light and stopped. When the defendant reached the officers’ car he attempted to drive around it but one of the officers jumped on the fender of defendant’s automobile and jerked the ignition key out of the switch, forcing the defendant to stop. On the floor behind the seat was a one gallon jug of whisky. This court reversed the conviction on the ground that the search and seizure was not reasonable and not as an incident of a lawful arrest. The following syllabi of that case shows the rules of law which are folloAved. by this court in passing upon questions of a similar nature:

“An officer without a Avarrant cannot arrest for an offense which was not a felony, unless offense was committed or attempted in his presence.
“A peace officer may arrest without a warrant for a misdemeanor only where the misdemeanor is committed or attempted in his 'presence,’ and if the officer is unaware of the act constituting the misdemeanor, it is not committed in his 'presence.’
“Whether a search of or seizure from an automobile without a. warrant is unreasonable, Avithin the meaning of the constitutional provision forbidding unreasonable searches and seizures, is a judicial question to be determined in each case, viewing all facts and circumstances under which the search or seizure was made.
“A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not on any probable cause of the commission of a felony, but on mere suspicion, violates the constitutional provision forbidding unreasonable searches or seizures, and evidence obtained by such a search is inadmissible.”

In this case the officers had strong suspicion that the defendant Simpson was transporting whisky in response to the telephone call which they had placed, but they did not see any whisky until after the search and seizure of the defendant Simpson’s car was made over his protest. The action of the officers was unlawful and the court properly excluded the evidence thus obtained insofar as the defendant Simpson was concerned.

A different question is presented as to the defendant Tillery. Tillery did not testify and there is no evidence that he claimed ownership of the car or of the whisky. The car and whisky were in possession of Simpson.

It is established law that the constitutional provision guaranteeing one immunity from unlawful search and seizure is personal, and one accused will not be heard to object that the search of the property or premises of some third person is a violation of his constitutional rights. Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Bynum v. State, 40 Okla. Cr. 352, 268 P. 993; White v. State, 33 Okla. Cr. 428, 244 P. 450; Rogers v. State, 72 Okla. Cr. 123, 113 P. 2d 606; Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843.

Under the record before us we can find no legal basis for sustaining the motion to suppress the evidence as to the defendant Tillery.

Our opinion on the reserved question of law presented is that the court correctly sustained the motion to suppress the evidence as to the defendant Simpson, but erred in sustaining the motion to suppress the evidence as to the defendant Tillery. The court properly ruled that the defense of entrapment presented by -the defendants in the motion to suppress the evidence was a matter of defense to be presented in the trial. of the case on its merits.

In defendants’ brief it is argued that irrespective of the opinion of this court on the reserved question of law that the prosecution is at an end, and even though the state might be successful in their contentions that still the prosecution had ended.

This contention would have been correct if the court had entered an order acquitting the defendants. State v. Waldrep, 80 Okla. Cr. 230, 158 P. 2d 368. However, an examination of the order entered by the trial court shows the court, after sustaining the motion to suppress the evidence, dismissed the case against the defendants and discharged their bond. This operated as a conclusion of that particular case. The motion to suppress the evidence was presented at a time when the case had not been assigned for trial and no jury had been empaneled. Since the defendant Tillery has not been placed in jeopardy, this does not preclude the county attorney from instituting another prosecution against him for this offense.

BRETT and POWELL, JJ., concur.


text:
    Ex parte LEE.
    No. A-11441.
    June 14, 1950.
    (219 P. 2d 638.)
    Ed Shipp and Bascom L. Coker, Idabel, for petitioner.
    Mac Q. Williamson, Atty. Gen., and I. C. Sprague, Co. Atty., McCurtain County, Idabel, for respondent.
   POWELL, J.

This is an original proceeding in ha-beas corpus instituted' by the petitioner, Albert Lee, for the' purpose of being admitted to bail upon a charge of murder now pending against him in the district court of McCurtain county.

The verified petition alleges that petitioner is restrained in the county jail of McCurtain county, where he is awaiting trial by reason of an information filed in the district court of said county, but that' the proof of his guilt is not evident nor the presumption thereof great. Attached to the petition and made a part thereof is a verified statement, executed by the petitioner, purport-ting to set out the facts in connection with the death with which he is charged, and which, if true, would support a plea of self-defense.

Hearing was had before this court, and the proof developed that the defendant was denied bail by the district court of McCurtain county. There was submitted for the consideration of the court a transcript of the evidence introduced at the hearing upon the examination, had before the county judge of McCurtain county, acting as an examining magistrate, and this court has considered said evidence.

The petitioner in this court testified at. length, and was cross-examined by the county attorney of McCurtain county. Defendant testified that he hit the deceased in the head with a heavy wrench while deceased was pursuing defendant with a loaded pistol around defendant’s truck; that deceased dropped the pistol but tried to regain it, and that defendant hit deceased with the wrench several times more, and that deceased became unconscious and finally died.

The state could produce no eyewitness to the encounter. When defendant, in a hearing as here, takes the witness stand and testifies in detail, and submits himself to cross-examination, such fact lends weight to the alleged factual situation in support of said self-defense claim.

We do not desire to make any comment upon the weight of the evidence, but it is our conclusion, after an examination of the transcript of the record heretofore mentioned, and a consideration of the evidence presented in open court, that the petitioner has made a sufficient showing to be entitled to bail. Ex parte Christenberry, 82 Okla. Cr. 378, 170 P. 2d 871, and the cases therein cited.

It is therefore ordered that the petitioner be admitted to bail in the sum of $20,000, said bond to be conditioned as provided by law, to be approved by the court clerk of McCurtain county; and when said bond is given and approved by the court clerk of said county, that petitioner be discharged from custody.

JONES, P. J., and BRETT, J., concur.


text:
    SCROGGINS v. STATE.
    No. A-11133.
    June 14, 1950.
    (219 P. 2d 636.)
    Walter Billingsley, Wewoka, and H. M. Shirley, Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Mirrell Desota Scroggins, defendant below, was charged by information in the district court of Coal county, Okla., with the crime of manslaughter in the first degree of John B. Blann. He was tried by a jury, found guilty of second degree manslaughter, his punishment fixed at 2 years and 6 months in the State Penitentiary, and judgment and sentence entered accordingly. From said judgment and sentence, this appeal has been perfected.

Briefly, the facts are as the jury found, that the defendant, in a drunken condition, was driving his 1934 black Ford panel truck on Highway 75 in a northwesterly direction, where the road makes a sharp curve to the left. The record further discloses that the defendant was driving in a highly reckless and negligent manner and at a rate of speed estimated from 40 to 60 miles per hour. In going round a left-hand bend he. ran off the pavement slab on to the shoulder on the east side of the road, and into John B. Blann who was walking on the shoulder, colliding his truck at the right front door with Mr. Blann inflicting injuries from which he immediately died.

The defendant does not question the sufficiency of the evidence, and urges only one question of law.

In his brief he contends that he was never arraigned on the charge before trial. He contends this being a felony case he could not waive a plea, and in his absence his attorney entered a plea for him. In this connection it appears that his attorney, on arraignment day, March 19, 1948, did enter a plea of not guilty for him. The court minutes reflect the following:

“Demurrer overruled; exception allowed. Attorney for defendant present in court and waives arraignment and enters plea of not guilty and will be ready for trial Wednesday, March 24, 1948, at 9 o’clock a.m. County Attorney has leave of court to endorse three witnesses.”

This proceeding at the trial was admitted as true. This, however, is not controlling, On the day of the trial March 24, 1948, the pertinent part of the court minutes reflect the following:

“Thereupon, both the State and the defendant, by counsel, announcing ready, a jury of twelve good and lawful men is duly drawn, selected, qualified and sworn to try the case. * * *
“The defendant and counsel present; the jury is returned into open court in charge of its sworn bailiff, and the following proceedings had, to-wit:
“The witnesses are sworn. The rule as to witnesses remaining out of the hearing of the proceedings is invoked.
“The opening statement of the State’s case is made to the jury by Mr. Lavern Fishel, County Attorney.
“The statement of the defendant’s case is made to the jury by Mr. Walter Billingsley, counsel for defendant.
“State’s Evidence:
“Tom Stevenson,- — a witness for the State is called to the witness stand, having heretofore been duly sworn as a. witness according to law.
“Mr. Billingsley: Comes now the defendant, Mir-. rell Desota Scroggins, and objects to any questions in the trial of this cause, for the reason that he has never been arraigned as provided by law, and the case is not at issue. * *”

With the defendant’s contention we cannot agree. The fact of announcing ready for ’ trial constituted a waiver of arraignment. The empaneling of the jury, the making of an opening statement, etc., confirmed the announcement of ready.

In so holding we are not unmindful of the fact that Title 22 O.S.A. 1941 §§ 451, 452, provide as follows:

“451. When the indictment or information is filed, the. defendant must be arraigned thereon before the court in which it is filed, if triable therein; if not, before the court to which it is removed or transmitted.
“452. If the indictment or information is for a felony the defendant must be personally present, but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel.”

The foregoing provisions of the statutes have been held to be provisions of the statutes for the benefit of the defendant himself which he may waive. Littlejohn v. State, 32 Okla. Cr. 401, 241 P. 210. A case clearly in point is Brown v. State, 33 Okla. Cr. 217, 242 P. 1065, wherein this court held:

“In a criminal action, a defendant by silence may waive the benefit of a statutory provision, and announcing ready for trial and going to trial without objection waives arraignment and plea. Where the defendant appears in person and by counsel, at the time assigned for trial, and announces ready for trial, this constitutes a waiver of arraignment and right to enter plea.”

Further on in the body of the opinion the court said:

“The record shows that the defendant was represented by competent counsel, that he voluntarily announced himself ready for trial, and that the case was treated as at issue upon a plea of not guilty, and the defendant was accorded every right that he could have availed himself of under the most formal entry of his plea. If the defendant had not been arraigned and did hot enter his plea, knowing this formal defect in the record, he took the chance of an acquittal, which would have barred further prosecution. The conviction will have the same effect.”

Further, in quoting from Martin v. Territory, 14 Okla. 598, 78 P. 88, this court in the Brown case, supra, said, among other things, that in exercising the privilege of arraignment the defendant is required to “act in good faith.” To the same effect is Ray v. State, 40 Okla. Cr. 413, 269 P. 509, wherein it was said:

“In a criminal action, a defendant by silence may waive the benefit of a statutory provision, and, by announcing ready for trial and going into trial without objection, he waives arraignment and plea.”

In Huffman v. State, 46 Okla. Cr. 377, 287 P. 1090, it was said:

“Where a defendant in a criminal case announces ready for trial, he thereby waives arraignment and plea or any irregularity therein.”

In the Huffman case, supra, it was contended that the plea had been entered for him by his attorney instead of by the defendant in person. In the body of the opinion the court said:

“This contention is wholly untenable. The record discloses that defendant announced ready for trial, and even if the manner of taking the plea was irregular, it was waived by such announcement. Ray v. State, [40 Okla. Cr. 413], 269 P. 509.”

The foregoing decisions have been consistently followed in construing the statute relative to arraignment and plea. See, in this connection, Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832; Holt v. State, 84 Okla. Cr. 283, 181 P. 2d 573; Scott v. State, 85 Okla. Cr. 213, 186 P. 2d 336; Ex parte Critser, 87 Okla. Cr. 380, 198 P. 2d 228. In light of the facts and the prior decisions of this court the contention of the defendant herein is wholly without merit. The judgment and sentence of the lower court is accordingly ■ affirmed.

JONES, P. J., and POWELL, J., concur.


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    BYRD v. STATE.
    No. A-11190.
    June 21, 1950.
    (219 P. 2d 1027.)

      Wimbish & Wimbish, Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The plaintiff in error, Annie Byrd, defendant below, was charged by information, with the offense of unlawful possession of intoxicating liquor, tried by a jury, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail. From this judgment and sentence she appeals.

The evidence briefly discloses that undersheriff George Latta and deputy sheriff Ed Dyson, armed with a search warrant, searched the defendant’s home, a place of public resort, and found at least 12 pints of tax paid liquor. Said liquor was hidden under a loose board under a rug, under the heater. The affidavit for search warrant and the search warrant were introduced in evidence by the defendant. She thereby adopted the same and became bound by its contents as to her place being one of public resort. The evidence further discloses the defendant had paid a federal retail liquor dealer’s license tax, and that her home had the reputation of being a “bootlegging joint”. The defendant did not take the witness stand, and offered no evidence in her own behalf. The evidence was sufficient to support the information.

The defendant contends that the search was invalid because the return shows the officer making the search did not comply with the provisions of Title 37, § 84, O.S.A. 1941, as follows in part:

“* * * A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

In this connection the evidence discloses that the warrant was served on the defendant in person. There is no showing that the search and seizure was not legally made, or that prejudice resulted to the defendant in the officer’s failure to comply with the statutory requirements in making his return. Under these conditions the same does not constitute reversible error. In Jackson v. State, 73 Okla. Cr. 149, 118 P. 2d 1044, it was said:

“Where search and seizure are legally made, statements of officers in return of search warrant are immaterial as bearing upon the validity of the search and seizure, unless defendant shows prejudice by reason of such statements.”

This contention is therefore without merit.

Next, the defendant contends that' the trial court permitted the introduction of incompetent evidence tending to show the home of the defendant was a place of public resort, and bore the reputation of being a bootlegging joint. The record discloses that the defendant introduced into the evidence the sworn affidavit for search warrant and the search warrant wherein the uncontroverted allegations were that the place was one of public resort. As hereinbefore stated, she adopted the same and became bound thereby, the recitals of which were buttressed by the sworn evidence of Officer Latta that he knew it was a place of public resort of his own personal knowledge, and in addition, preceding the search he saw a drunk man there. This showing being made, combined with the payment of a retail liquor dealer’s license tax, which fact constitutes prima facie evidence of intent to sell, Title 37, § 81, O.S.A. 1941, it then became competent to show the general reputation of the place. In Boggess v. State, 70 Okla. Cr. 156, 105 P. 2d 446, 447, it was said:

“In prosecution for unlawful possession of intoxicating liquor, where the proof shows such possession at a place of public resort, evidence of the general reputation of the place as being a place where intoxicating liquor is kept for sale is admissible on the question of intent.”

This contention is likewise without merit.

The defendant further contends that it was error for the trial court to deny his request that the seized liquor be produced. This contention has been held to be of no merit in State v. Gragg, 71 Okla. Cr. 213, 110 P. 2d 321, 322, wherein it was said:

“Where one is charged with the unlawful possession of intoxicating liquor, it is not necessary for the State to produce the identical liquor as alleged in the information, before a conviction may be had for the unlawful possession. This is a question of fact to be decided by the court or jury.”

See, also, Enochs v. State, 81 Okla. Cr. 111, 161 P. 2d 87.

' The defendant further filed a supplemental brief in which he assigns as error the giving of instructions Nos. 6 and 7. No objection or exception was saved to the giving of these instructions at the time they were given. As was said in Giles v. State, 70 Okla. Cr. 72, 104 P. 2d 975, 976:

“By the fifth subdivision of Section 3057, O.S. 1931, 22 Okla. St. Ann. § 831, and Section 3079, O.S. 1931, 22 Okla. St. Ann. § 856, it is contemplated that instructions to the jury in a criminal case shall be settled before they are read to the jury, so that counsel, if they have any exceptions to the instructions, may point out their objections to the court and may submit additional instructions in order that the court shall have an opportunity to correct any error which he may have made. Also to give counsel for the State an opportunity to join in requesting the correction of any error in the instructions. Where no exceptions to the instructions are taken until after they are read to the jury, such exceptions will he unavailing unless the errors are of a fundamental character.”

To the same effect is Thompson v. State, 89 Okla. Cr. 383, 208 P. 2d 584, 587; Gentry v. State, 86 Okla. Cr. 92, 189 P. 2d 626, and further holding that the giving of similar instructions did not constitute fundamental error. The defendant makes other assignments of error which we do not deem worthy of consideration. For all of the above and foregoing reasons, the judgment .and sentence herein imposed is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


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    FITZGERALD v. STATE.
    No. A-11181.
    June 21, 1950.
    (219 P. 2d 1024.)

      Percy Hughes, Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant was convicted in the county court of Kiowa county by verdict of a jury of the offense of driving a motor vehicle while under the influence of intoxicating liquor, and pursuant to the verdict of the jury was sentenced to serve 90 days in the county jail and pay a fine of $250.

Three highway patrolmen testified for the state and their testimony, in substance, was that they had been to a patrol school at Lawton; that on April 28, 1948, while they were returning from the school they saw the defendant on U. S. Highway 183 driving south in an automobile about a mile north of the town of Roosevelt; that the defendant was driving his car in the center of the highway; that they turned their car around and pursued the defendant, overtaking him within the city limits of Roosevelt; that the defendant was driving his automobile about 60 miles per hour; that the defendant was intoxicated; was arrested by the patrolmen and lodged in the county jail at Hobart, which was about 15 miles from the place of the arrest. About the only discrepancy in the testimony of the patrolmen was whether the defendant rode to Hobart in his own car or in the patrol ear. Trooper Dawson and Trooper Matthews testified that the defendant was arrested and placed in the patrol car and taken to Hobart, while Trooper Mussen testified that the defendant was left in his own car and that Mussen drove it to Hobart.

The defendant denied that he was intoxicated and denied that he had consumed any intoxicating liquor whatsoever. Tom Hood, the jailer to whom the defendant was delivered, testified in behalf of the defendant that the defendant was sober. He stated that he was within ten (10) inches of the defendant’s face when the patrolmen delivered defendant to him at the county jail and that he could detect no odor of whisky on him and that there was nothing about the defendant at all that would intimate that he was intoxicated. On cross-examination of the defendant he admitted that he had pleaded guilty to a charge of driving an automobile while under the influence of intoxicating liquor and that at the particular tie he was arrested on the instant charge he did not have a driver’s license by reason of the fact that it had been revoked at the time he entered his plea of guilty to the previous charge.

It is contended that the trial court erred in allowing the state to introduce incompetent and immaterial testimony in rebuttal. This assignment of error is directed to the testimony of Patrolman Mussen. This objection is directed to the admission of the following evidence :

“Q. What is his business? Counsel for defendant: Objected to as incompetent, irrelevant and immaterial; not within the issues of the case. By The Court: Sustained. Q. Do you know Avhat business this defendant is engaged in? Answer that yes or no. A. Yes, sir. Q. What is his business? Counsel for defendant: Objected to as being incompetent, irrelevant, immaterial. By the Court: Overruled. A. Now in Clinton there he has been a bootlegger — bootlegged up there for years. He may have some property, I don’t knoAV about that. He is a bootlegger; has been up for it; been raided there in town a number of times. Counsel for defendant: Objected to, not proper rebuttal examination. He isn’t charged in this case with violating the prohibitory liquor laws of the state; an improper way to prove a conviction or an arrest, or to prove that he is a bootlegger, if he is one. By the Court: Overruled. Counsel for defendant: Exception. Q. How long, if you know, has this defendant been engaged in such business? Counsel for defendant: Objected to for the same reason. By the Court: Overruled. Counsel for defendant: Exception. A. Well, ever since I have been in Clinton there, Q. How long have you been in Clinton? A. Been in Clinton since 1941. He was gone, I think for a year there or so, along in there. Take 1945 and 1946, as far as around 1946 and 1947 he was going strong.”

The defendant has cited a long list of authorities, including many decisions of this court, sustaining his contention that the admission of this evidence was prejudicial to the defendant and prevented him from having a fair trial. The Attorney General has filed no answer brief and under the circumstances we assume that the reason for the failure to file an answer brief is because the state believes that the trial court erred in the admission of such evidence.

For the purpose of affecting his credibility as a witness, defendant may be asked on cross-examination as to whether he has been convicted of crime, and if he denies it, the state in rebuttal may introduce evidence as to such conviction. Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Trail v. State, 63 Okla. Cr. 312, 74 P. 2d 1170. But the law does not permit the cross-examination of the defendant as to other separate and distinct transactions or offenses where there is no conviction unless they are in some way connected with the offense for which he stands charged.

It is also established law that the character or reputation of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Roberson v. State, 91 Okla. Cr. 217, 218 P. 2d 414. The defendant offered no evidence as to his good character. It was improper for the state to show in rebuttal that he was a bootlegger and “had been going strong” as such bootlegger in 1946, which was two years prior to the alleged commission of this offense.

One other assignment of error deserves comment. The evidence in the case showed that the county attorney Avas present at the jail when the defendant was brought in by the highway patrolmen. The county attorney did not testify, but in his closing argument to the jury he made the following statement:

“I Avill never knoAvingly permit a man to testify falsely in order to obtain a conviction, while I am county attorney, and it has been testified here that I was present in the jail when this man was brought in.”

When this remark was made, counsel for the defendant objected to it and moved for a mistrial, which was overruled and exception saved to the defendant.

If the county attorney had wanted to testify as a witness he should have been sworn and thus given the defendant an opportunity to cross-examine him. The statement in effect said that the county attorney was present at the jail when defendant was brought in, and that the defendant was guilty of being intoxicated or he would not have filed the charges against him. It has been held that it was improper for the county attorney to state his personal opinion as to the guilt of the accused or to make any statement in his closing argument outside of the record for the purpose of creating prejudice against the defendant. In Childs v. State, 13 Okla. Cr. 461, 165 P. 622, this court held:

“A prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper remarks objected to at the time will be considered and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted.
“In his argument to the jury, the assistant county attorney said, ‘The county attorney of this county knew this defendant was guilty before he filed this information, or this case would never have been brought.’ Evidence considered, and held, that such statement was prejudicial to the substantial rights of the defendant, for which a new trial should be granted.”

In the body of the opinion it is stated:

“The statement was, under the circumstances, highly improper and well calculated to bolster up the unsatisfactory testimony of the witnesses for the state. If, as his assistant stated, the county attorney knew that the defendant was guilty, he should have been called as a witness so that the defendant could have the benefit of confrontation and cross-examination. A prosecuting attorney should confine his argument before the jury- to a fair discussion of the issues in the case, and improper remarks objected to at the time will be considered and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted. Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Mulkey v. State, 5 Okla. Cr. 75, 113 P. [532], 533.”

In Hill v. State, 76 Okla. Cr. 371, 137 P. 2d 261, 263, it is stated:

“It is improper for prosecuting attorney to state his personal opinion as to the defendant’s guilt, or state facts not proved by evidence.”

See, also, Rheuark v. State, 81 Okla. Cr. 60, 160 P. 2d 413. See, also, Glasgow v. State, 88 Okla. Cr. 279, 202 P. 2d 999.

Although the state made out a strong case of guilt against the accused, there was substantial evidence not only from the defendant but from the county jailer, that the defendant was not under the influence of intoxicating liquor. It appears to us that the errors complained of are of such a substantial nature that this court is forced to conclude that it probably affected the deliberations of the jury. Under such a situation, it is our opinion that the judgment and sentence of the county court of Kiowa county should be reversed and the cause remanded for a new trial.

It is so ordered.

BRETT and POWELL, JJ., concur.


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    Ex parte OWENS.
    No. A-11353.
    June 21, 1950.
    (219 P. 2d 1030.)

      J. J. Bruce, Oklahoma City, and E. M. Guillory and Cousin P. Kimble, both of Muskogee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   POWELL, J.

Petitioner, Chester Owens, an inmate of the State Penitentiary at McAlester, serving a term of 35 years imprisonment by reason of his plea of guilty to a charge of attempted rape in the first degree, taking place in Muskogee county, Okla., on February 23, 1939, has filed his petition in this court for writ of habeas corpus, seeking his release.

Petitioner contends in effect that the judgment under which he was incarcerated is void for the reason that at the time of entering his plea of guilty he was not appointed counsel, and was not informed of his rights under the Constitution.

Petitioner sets out in his verified petition that he was arrested by the sheriff of Muskogee county for attempted rape on Ola Scott, a white girl, near Oktaha, about 14 miles south of Muskogee. That complaint was not filed until February 27, 1939; that he was arraigned before S. C. Cavender, judge of the city court, on the same morning and entered a plea of not guilty to the charge, was returned to the county jail to await preliminary hearing, which was set for March 8, 1939, and his bond fixed at $3,000. It is claimed that the examining magistrate did not inform him of his right to be represented by counsel.It is alleged that the then county attorney of Muskogee county, Douglas Garrett, obtained an order from O. H. P. Brewer, district judge of Muskogee county, to transport petitioner to the State Penitentiary at McAlester for safekeeping, fearing that the sheriffs force of Mnskogee county could not properly and safely guard the life of petitioner.

It is alleged that the order to transport petitioner to McAlester was not obtained in good faith, but in furtherance of the efforts of the sheriff and county attorney to force petitioner to change his plea of “not guilty” to “guilty.” He states that he was not confined any further in the penitentiary than the warden’s office, and that after dark he was taken from that office and placed in Sheriff John H. Baxter’s automobile and was told that it would now be safe for him to be returned to Muskogee, and on the way back the sheriff and deputy began trying to persuade him to change his plea, and that under such circumstances petitioner did change his plea while so being returned to Muskogee and that the sheriff drove directly to the Muskogee county courthouse, placed petitioner in his office and ’phoned District Judge O. H. P. Brewer, the court clerk and the county attorney, who were at their respective homes, and that after they arrived and conferred that he was taken before Judge Brewer, who summarily sentenced him to 35 years in the State Penitentiary at McAlester. That this was. on the night of February 27, 1939, and that on the morning of February 28, 1939, he was returned to the penitentiary.

Attached to the petition for writ is a certified copy of the complaint signed by Ola Scott, the alleged victim, and of transcript from the examining magistrate filed in the district court of Muskogee county; also of “Order to transfer prisoner to McAlester Penitentiary for safekeeping”, entered by O. H .P. Brewer, district judge; also certified copy of information and of “Commitment on Plea of Guilty”, with sheriff’s return.

Petitioner has attached to his brief an affidavit from Hattie Owens, mother of Chester Owens, in which she sets out that she first saw her son after his arrest, on the morning of February 28, 1939, after his sentence; that she went to several lawyers but was advised to wait until prisoner had served about 15 years of his sentence before applying for his release under parole; that another attorney offered to help but that she was not able to raise the money. Also attached to the brief is a photostatie copy of an article that is alleged to have appeared in the Muskogee Daily Phoenix of February 28,1939, covering the case of Chester Owens. The article purports to be certified to . by Jack Hawn, telegraph editor of the newspaper mentioned. The pertinent portions of the article, read:

“Chester Owens, 23, Oktaha Negro, was sentenced to 35 years in the State Penitentiary after a swift development of events last night led him before District Judge O. H. P. Brewer to plead guilty to charges of attempting to attack a white woman near Oktaha late Thursday evening.
“The Negro had pleaded not guilty at his arraignment in city court yesterday afternoon and was being rushed to McAlester for safekeeping when he decided to plead guilty.
“In his confession, Owens said he walked in front of a white woman along a lonely dirt road west of Oktaha at dusk last Thursday. The woman, Ola Scott, about 30, had arrived in Oktaha by bus from Eufala and had decided to walk the remaining few miles over the dirt road to visit some relatives. '
“The Negro stopped by a bridge, and when the woman passed he grabbed her and threw her into a culvert below. She was strong and resisted his attempts to tear off her clothes until another Negro, John (Snowball) Williams, of Oktaha, rode up on horseback.
“Williams frightened off Owens, who jumped the stream and darted across a field, and Williams took Mrs. Scott to a nearby farm house where she telephoned the sheriff’s office in Muskogee.
“Mrs. Scott and Williams identified Owens, who was arrested several hours after the attempted attack, by Fred Ryser and Connie Vann, deputy sheriffs. Owens was removed to the Muskogee County Jail, where he had been held in secrecy pending his arraignment yesterday afternoon in city court.
“County Attorney Douglas Garrett, who filed the charge of attempted assault in the second degree, said feeling was running high among both the Negroes and white people of the Oktaha vicinity, and urged that sheriff Baxter take the' Negro to McAlester, immediately after arraignment for safe-keeping.
“Sheriff Baxter and Fred Ryser took Owens to Mc-Alester late yesterday afternoon, and when they reached the prison Owens decided to change his plea, Baxter telephoned Garrett, and Judge Brewer and Joe Childers, Court Clerk, were ready to receive the plea when he was brought back about 8 o’clock last night.
“After sentencing him to 35 years in the penitentiary at McAlester, Judge Brewer declared:
“ ‘This is a serious offense you have committed, you took it upon yourself to plead the way you did, because I gave you every opportunity to exercise your constitutional rights of a trial.
“ ‘Perhaps in the future some governor will have a change of heart and if you are a good prisoner you may be released. But that’ll be long after I am dead.’ ”

Following the filing of the petition in this court on January 5, 1950, an order was on that day entered requiring the warden of the State Penitentiary at McAlester to respond to said petition of Chester Owens and to show cause for his detention in the penitentiary, and the matter was set for oral argument, and petitioner was represented by counsel and the respondent by the Attorney General, and all matters considered at length. The Attorney General, on May 4, 1950, filed a supplemental response in which he states:

“Because of the 11 years’ delay on the part of petitioner it has been almost impossible to secure evidence as to the circumstances surrounding the petitioner’s plea of guilty.- Judge Oavender before whom the preliminary hearing was held is dead. Judge O. H. P. Brewer has been ill for many months and has no recollection with reference to the matter. The former county attorney and othérs connected with the case are not certain as to the details. Mr. Baxter, at that time sheriff and alleged to have influenced the petitioner to plead guilty, denies having had anything to do with the matter. Investigation has revealed the fact that Fred Ryser, at that time a deputy sheriff, had charge of petitioner, and hereto attached is an affidavit made by him setting forth the facts as he recalls them.”

The affidavit by Fred Byser sets out that he was a deputy sheriff of Muskogee county and the person who on February 27, 1939, had custody of Chester Owens to be transported to the State Penitentiary at McÁlester for sáfekeéping under the order of the district Court óf Muskogee county, and that he returned the same “not executed,” for the reason that the prisoner on his own volition decided to plead guilty and throw himself on the mercy of the'court, and that affiant at no time used any threatening language toward said defendant or used any language calculated tó frighten him or coerce him in any way; that he had practically no conversation with the prisoner and that while prisoner was at the sheriff’s office he héard no other officer or person use any threatening ianguage or language calculated to or likely to frighten the prisoner'; that to the best of his knowledge prisoner voluntarily decided to change his plea.

It is apparent in an action of this nature, affidavits from the county attorney and court clerk of Muskogee county, who were serving at the time the prisoner was sentenced, with copy of the court reporter’s notes, if any, and copy of the minutes of the court clerk, if any, would have been of great aid to this court, but though extra time was granted, the Attorney General has been unable to furnish us but the affidavit of the former deputy sheriff, as heretofore mentioned. As indicated, the examining magistrate is deceased and the trial judge has long been ill and has no recollection of the case. Thus, by reason of the lapse of time the records and evidence of what actually happened at the time the petitioner was arraigned before the examining magistrate and at the time of petitioner’s plea before the district court, is far from satisfactory, and makes difficult, if not impossible, a determination of what truly happened. But the situation presented is such as might naturally be expected where one permits a period of eleven years to elapse without having some action instituted to have his grievances heard.

This case demonstrates that it is the better practice for courts, in all felony cases where the defendant is not represented by counsel, to proceed with all caution by having the court reporter take down all proceedings, including the court’s explanation to prisoner of his constitutional rights, and for the court to appoint some attorney to represent the prisoner if questioning indicates the prisoner is unable to employ counsel. Such procedure would certainly aid this court in disposing of such cases as this, and free from the possibility of erroneous conclusions concerning factual matters.

In the solution of this case there are a number of principles of law that should be kept in mind; particularly that this court will only grant relief by habeas corpus when the judgment is void or the court did not have jurisdiction to render judgment and sentence. As contended by petitioner, if the court was not completed by the appointment of counsel for an indigent, illiterate person, it had no jurisdiction to render judgment. In re Stevens, 81 Okla. Cr. 65, 160 P. 2d 415; Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139. This is the question for determination.

It is well settled that an accused may waive his constitutional rights to be .represented by counsel and to trial by jury. O.S. 1941, Const., Art. 2, § 20. It is the further rule that whether an accused has waived his right to the assistance of counsel depends in each case upon the particular facts and circumstances, including the background, experience, and conduct of the accused, and that where habeas corpus petition charging deprivation of constitutional rights is not presented until many years after conviction and sentence, the proof to entitle petitioner to relief must be clear and convincing, and every presumption favors regularity of proceedings had in the trial court, and petitioner for the writ has the burden of sustaining the allegations of his petition. Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588; Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Owens, 88 Okla. Cr. 346, 203 P. 2d 447; Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613; Ex parte Hall, 91 Okla. Cr. 11, 215 P. 2d 587; Ex parte Workman, 89 Okla. Cr. 289, 207 P. 2d 361.

In the last cited case, this court said:

“The right to relief by habeas corpus may be lost by laches, when the petition for habeas corpus is delayed for a period of time so long that the minds of the trial judge and court attendants become clouded by time and uncertain as to what happened, or due to dislocation of witnesses, the grim hand of death and the loss of records, the rights sought to be asserted have become mere matters of speculation, based upon faulty recollections, or figments of imagination, if not outright falsifications.”

In Ex parte Owens, supra, the principles of law applicable in this case are considered at length, and that case may be referred to for fuller discussion.

In view of the above principles, may it be said that the petitioner has met the burden of showing that the trial court at the time of his arraignment failed to advise him of his constitutional right to be represented by counsel and to his right to trial by jury? This court in Ex parte Motley, supra, held that every presumption favors regularity of proceedings had in the trial court in a criminal case and that error of trial court must affirmatively appear from the record and will never be presumed, and that public policy does not permit petitioner on habeas corpus to supply missing links by his testimony standing alone in a record, but relief must be based on something more substantial, and petitioner’s testimony should be corroborated by clear and convincing proof.

The newspaper article offered by petitioner indicates that the trial court •in lecturing the petitioner recounted that:

“* * * you took it upon yourself to plead the way you did, because I gave you every opportunity to exercise your constitutional right of a trial. * * *”

The transcript of the examining magistrate merely shows that petitioner changed his plea from “not guilty” to “guilty”’ and thereafter the county attorney filed an information in the , district court. The record proceedings appear regular. The order of the district court directing that the petitioner be transferred to the State Penitentiary at McAlester shows by the sheriff’s return that it was “not executed.” It is signed by Fred Ryser, deputy. Mr. Ry-ser’s affidavit attached to respondent’s supplemental response sets out as the reason that the order was not executed was that the accused on his own volition decided to plead guilty. The matters set out in the newspaper article that petitioner submits, and therefore that he must be considered as approving, no doubt had much to do with his decision to plead guilty to the charge. We cannot assume misconduct on the part of the officers and that the safekeeping order signed by the district judge was obtained in bad faith to frighten the petitioner into confessing, especially as this idea is refuted by petitioner’s own exhibit.

The record before us further shows that the petitioner at the time of Ms arrest was 23 years of age, the prime of youth, and though he had spent most of his life on a backwoods farm, he had an eighth-grade education, which is above that of many, and certainly equipped him to read and understand the basic facts of life. His own exhibit indicates that he may have been in fear of the wrath of his neighbors, colored as well as white, and decided to risk the mercy of the trial judge rather than that of a jury, by reason of a colored man, John Williams, having prevented him from accomplishing his alleged purpose and having thereafter been identified by such person.

From a careful study of the affidavits and exhibits, we do not feel that petitioner has met the burden of showing the facts sufficient to disclose that the court before whom he was tried was not properly completed by the petitioner not being advised of his constitutional right to counsel, and that the court would appoint counsel free of cost to Mm if he was unable to employ counsel. The affidavit by petitioner’s mother discloses that she consult ed a number of attorneys immediately after petitioner entered his plea of guilty to the charge made, and we. cannot speculate as to why no further effort was made to bring the matter now urged to the attention of this court until the elapse of some eleven years, and after the examining magistrate is deceased, the trial judge ill and unable to remember the case, and the minutes of the happening not available, or not submitted, and other officials of the time who were cognizant of the case and charged with official duties in connection therewith, not now in office, and not available or forgetful of the facts.

One can imagine how truth might be stifled and justice defeated if prisoners, if not released outright, could obtain new trials years after the happening of the crime charged and after officials and witnesses at the date of the initial arrest had died or memories become blurred and inaccurate. If, under the circumstances, the petitioner considers the punishment assessed severe and feels that he is entitled to have his case further considered, his recourse is to the Pardon and Parole Board, and not to this court.

Prom the record here presented, we are unable to say that petitioner was deprived of any of his constitutional or statutory rights and the petition for writ of habeas corpus is denied.

JONES, P. J., and BRETT, J., concur.


author: Mr. Presiding Justice

text:
    Jennie Wuerz, Administratrix of Estate of Edmund Wuerz, Deceased, and Louis Reuther, Appellees, v. Southern Railway Company, Appellant.
    Opinion filed March 2, 1943.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Lindauer & Lindauer, of Belleville, for appellees; Frank T. Plattner, of East St. Louis, of counsel.
   Mr. Presiding Justice

Culbertson delivered the opinion of the court.

This is an appeal from two judgments of the circuit court of St. Clair county, in favor of Jennie Wuerz, administratrix of the estate of Edmund Wuerz, deceased, in the sum of $5,000, and in favor of Louis Reuther, in the sum of $600, as against the Southern Railway Company, a corporation. The judgments were based on verdicts rendered in favor of the appellees (hereinafter called plaintiffs), respectively, by reason of the death of Edmund Wuerz and on the basis of damage sustained by plaintiff Louis Reuther through damage to a truck owned by him which was being driven by Edmund Wuerz, and which was involved in a collision between the train of appellant, Southern Railway Company, a corporation (hereinafter called defendant).

The accident which was the basis of the action of plaintiffs occurred at the crossing of a public highway known as the extension of 52nd street (one of the public streets of the city of Belleville) where it intersected the right of way of the defendant railway company, in St. Clair county, in the State of Illinois. The complaint which was filed in the cause, consists of four counts, the first of which, on behalf of plaintiff Jennie Wuerz, as administratrix of the estate of Edmund Wuerz, deceased, charged, that the deceased was in the exercise of due care and caution for his own safety and that defendant was guilty of negligence in failing to furnish proper signs, signals, or warnings, of the approaching trains, at the crossing, and that defendant failed to give motorists approaching the crossing, and particularly the deceased, a proper and sufficient warning of the approach of the locomotive and cars through the blowing of a whistle or ringing of a bell. The second count of the complaint was substantially the same as the first count, except that it charged wilfulness and wantonness instead of the charge of general negligence. Count three of the complaint was substantially the same as count one in charging negligence and claiming damages on behalf of plaintiff Louis Reuther, as the result of damage to the truck; and count four of the complaint on behalf of the plaintiff Louis Eeuther was similar to count two in charging the defendant with wilfulness and wantonness.

Fifty-second street in the city of Belleville, which runs in a northerly and southerly direction, is a paved surface to the city limits, but there is a distance of approximately 90 to 100 feet .from the end of the pavement, up to the tracks of the defendant, which is unpaved. The tracks of the defendant at the point where the accident occurred are practically straight, both to the east and to the west, for a distance of more than a mile, and the tracks are elevated above 52nd street and the adjoining terrain, about three or four feet. At the time of the accident which caused his death, the deceased, Edmund Wuerz, who had been driving a truck for the plaintiff Louis Eeuther for about 18 years, was in the process of driving a truck in the business of delivering ice. The ice route which the deceased operated on the day of the accident required him to cross the tracks of defendant at 52nd street to some customers who lived south of the tracks, in the county, and the evidence showed that the deceased was familiar with the neighborhood, and also with the crossing in question and that he had crossed it numerous times. There were no crossarms or crossbars, or gate, or signal, and no wigwag or crossings signs of any kind at either side of the tracks at the crossing in question, at which point the defendant railway company maintained three sets of tracks. There was some evidence to the effect that there was a dirt embankment to the north of the tracks from four to six feet high, and that there were dried weeds along the right of way and the top of the dirt embankment west of the crossing in question. The photographic exhibits submitted by both plaintiffs, and the defendant, indicate, however, that the weeds and the embankment could not have prevented the deceased from seeing an oncoming train;

At the time of the accident, on the 4th day of February, 1940, a WPA project was in operation near the intersection where the accident occurred, and a number of persons who were engaged in digging a ditch on the project testified at the trial that they did not hear any ringing of the bell or blowing of the whistle of the locomotive of the train involved in the accident in question. There was other similar evidence on beha' f of plaintiff. There was some evidence that as the deceased approached the tracks, he stopped his truck and looked in both directions before he started to drive across. As he crossed the first track he was struck by the locomotive of a train of the defendant railway company, which was then traveling in an easterly direction on that track. The accident caused the death of Edmund Wuerz, and completely demolished the truck in which he was riding.

The testimony on behalf of defendant, by members of the crew of defendant’s train, was to the effect that an automatic bell on the engine was_ ringing as the train approached the crossing. The fireman testified that as they got within 100 feet of the crossing he saw the truck coming from the north, going about 15 miles per hour, and that the truck kept going, rigl^t up onto the track, where it was struck by the train.

During the trial, at the close of the plaintiffs’ evidence, the defendant filed motions for directed verdicts as to each of the four counts of the complaint, and the court below sustained the motions as to counts two and four of the complaint, which were based upon wilful and wanton conduct. The court, however, overruled the motions for directed verdicts as to counts one and three, which charged defendant with negligence. (The court also directed that the jury find defendant not guilty on the charge of operating the train at a high and dangerous rate of speed.) On appeal to this court the defendant sets up a number of grounds for reversal, but in view of the conclusion to which we have come it is only necessary to consider one phase of defendant’s contentions, in which it is asserted that the court below should have sustained the motions for directed verdicts at the close of all of the evidence.

The evidence in the case, coupled with the photographic exhibits, showing the intersection at which the accident occurred, indicates that a person approaching the intersection of 52nd street with the railroad tracks, could see down the track in the direction from which the train approached in the instant case, for a distance of at least one*mile from any distance within 60 feet of the track. The evidence also disclosed that the deceased was very familiar with the crossing and had crossed it many times, so that he was aware that there was a railroad crossing at the intersection. Under a somewhat similar set of „facts as is before this court in the instant case, the Supreme Court in the case of Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, at page 631, says:

‘ ‘ The rule has long been settled in this State that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence (Graham v. Hagmann, 270 Ill. 252; Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 id. 529; Chicago, Burlington and Quincy Railroad Co. v. Damerell, 81 id. 450; Toledo, Wabash and Western Railway Co. v. Jones, 76 id. 311.) One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care. The law will not tolerate the absurdity of allowing a person to testify that he looked, but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it. (Schlauder v. Chicago and Southern Traction Co., 253 Ill. 154.) The question of due care on the part of a plaintiff is a question for the jury when there is any evidence given on the trial which, with any legitimate inference that may be legally and justifiably drawn therefrom, tends to show the use of due care, but where the evidence, with all legitimate inferences that may be legally and justifiably drawn therefrom, does not tend to show due care on the part of plaintiff the trial court is justified in instructing the jury, to return a verdict for defendant. In this case it seems clear from the testimony of appellant’s wit-messes, taken in its most favorable light, that appellant’s agents, had they continued to look toward the southeast after going upon the tracks would have seen the approaching train in ample time to have avoided the collision. Appellant’s evidence most favorable to him is, that when standing on the first or south track, which the testimony shows is from 30 to 40 feet south of the third track, on which the collision occurred, one can see at least 200 feet in the direction from which the train was approaching. Neither of appellants testified that after going upon the first or south track they again looked toward the southeast until they were crossing the second track. It seems clear that had they done so the collision would have been avoided. They testified that they heard no sound of warning, such as the blowing of a whistle or ringing of a bell. The duty resting upon one who crosses a railroad track is not only to listen but to look, and the fact that no bell was rung or whistle blown, if such was the fact, would not excuse him from using due care to look in the direction from which a train might be coming, and in this case had appellant’s servants done so it seems clear that the collision would have been avoided. ’ ’

In the instant case the testimony submitted on behalf of plaintiffs, viewed in its most favorable light, demonstrates that decedent, had he looked in the direction in which the train was coming, would haye seen.the train in ample time to have avoided the collision. In view of the precedent established in the case of Greenwald v. Baltimore & Ohio R. Co., supra, and in similar cases, we are compelled to conclude that the evidence tending to show negligence on part of the defendant will not suffice, and the contributory negligence on part of the deceased, effectively bars plaintiffs, under the facts, from any recovery as against defendant (Scruggs v. Baltimore & Ohio R. Co., 287 Ill. App. 310). The court below" should; therefore, have allowed defendant’s motions for directed verdicts as to counts one and three. The issue of the contributory negligence of the ceased, under the facts, and in view of the conclusions expressed by our Supreme Court in the Greenwald case, should not have been submitted to the jury.

Reversed, and judgments in bar in this court.


text:
    Theodore Rosenberger, Appellee, v. Consolidated Coal Company, Appellant.
    Opinion filed March 2, 1943.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, and Leon A. Colp, of Marion, for appellant.
    D. L. Duty, Charles D. Winters and Stone & Fowler, all of Marion, and J. E. Harriss, of Dn Quoin, for appellee.
   Mr. Presiding Justice

Culbertson delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Williamson, counity, in favor of Theodore Rosenberger, appellee (hereinafter called plaintiff), and against the Consolidated Coal Company, a corporation, appellant (hereinafter called defendant), in the sum of $10,000.

The complaint in the instant case charged that defendant (which owned ahont 600 acres of land adjoining the easterly city limits of the city of Herrin, on which its mine was located), had permitted certain pathways over its lands to be used and traversed continuously by pedestrians, to the knowledge of defendant, for many years, and that there were no signs forbidding the use, or warning pedestrians of any hidden dangers, or that the footpaths were unsafe for travel, and that while plaintiff was walking along a path, which ran north of a creek on the land of defendants, its surface broke and plaintiff fell through the surface crust of the path into certain burning coal, slack, and gob, by reason of which he sustained certain injuries. There were allegations to the effect that defendant had negligently created such dangerous condition and knew that the coal and refuse would spontaneously ignite and burn under the footpath. It was charged that the defendant negligently failed to extinguish the fire under the footpath so as to make the same reasonably safe for pedestrians, that it negligently failed to erect and maintain signs on the footpath, which would warn and notify pedestrians of the hidden danger of such path, and that it failed to provide a fence or barricade so as to warn or notify pedestrians of the hidden and dangerous condition. The second count of the complaint charged the defendant with wilfully and wantonly creating the alleged dangerous condition.

The evidence at the trial, before a jury, indicated that most of the land not occupied by the mine of defendant and railroad tracks was wasteland. It also tends to show that for a long time prior to the time of the injury of plaintiff, a number of people in the community had traversed the area, picking berries, hunting rabbits, gathering nuts, or in other similar pursuits. There was no fence or sign of any kind to discourage the practice. There was some dispute as to whether or not the path in question was well-defined, but there was evidence to indicate that there was a well-defined one-man path, about three feet wide, at the point where the path gave way and plaintiff sustained his injuries. There was no evidence to indicate that defendant had ever piled any coal, or refuse, or gob, anywhere near the place of the accident. It was disclosed, however, that a WPA mosquito abatement gang, which had acted in straightening out the creek adjoining the pathway at the place of the accident, had scraped some of the slack from the creek and had thrown it to the north side of the ditch, where an embankment had been built. Plaintiff was a member of that WPA mosquito abatement gang. It was apparent from the evidence that the coal refuse which had washed down the creek and which was thrown out by plaintiff and his fellow workmen about a year before the accident involved herein, spontaneously took fire. It was shown that it is a known scientific fact that coal or coal refuse, piled up and exposed to the weather, will often spontaneously take fire. There is no evidence in the record, however, that defendant, or its agents, knew that the coal refuse had been dug out, or piled on the north bank of the creek, or that it was burning.

On October 15, 1939, the plaintiff and his two sons, aged nine and eleven years, walked across the land of defendant for the purpose of hunting hazelnuts. They crossed a trestle to the north bank of the creek and then went down a “one-lane” pathway along the north side of the creek in an area which was otherwise low and overgrown with weeds and brush. The plaintiff was in the lead, with his sons following him in single file as they walked about 50 or 75 feet from the railroad, when the pathway suddenly broke under plaintiff and he was precipitated into the fire. Before he broke through the crust, there was no smoke or fumes, or flame, and absolutely nothing unusual to warn him of the burning danger. As the result of the accident plaintiff’s feet and legs were severely burned and he sustained painful and extensive injuries.

The only evidence in the cause which tended to establish that defendant, or its agents, knew anything about the coal refuse having been dug out or piled up on the north bank of the creek, was to the effect that defendant’s cashier knew that the WPA had cleaned out and shoveled out the ditch, and that there were washings and coal refuse from the cleanings of the coal all along the ditch where it goes down from defendant’s plant. There was no evidence, however, that defendant, or its agents, knew that the coal or gob was piled there in dangerous quantities, or that it was burning. There was, likewise, no evidence to show that the pathway at the point of the accident could even be seen from any point which any of the defendant’s agents had visited prior to the accident. It is contended by plaintiff in this connection, that the agent of defendant who knew that silt and coal refuse, when piled in substantial quantities, will catch fire, was charged with knowledge that the WPA crew, in cleaning out the creek, would pile the coal refuse in such manner as to create a dangerous condition.

On the trial of the cause, the court refused to direct a verdict as to the two counts of the complaint. A special interrogatory which was submitted to the jury, “Was the injury to Theodore Rosenberger caused by the wilful and wanton misconduct of the Consolidated Coal Company!” was answered by the jury “Yes,” and it likewise returned a verdict for the plaintiff for $10,000. The defendant’s motions for judgment notwithstanding the verdict and to set aside the special finding of the jury, and for a new trial, were denied by the court below. A motion in arrest of judgment was, likewise, denied and judgment was entered by plaintiff on the verdict. The defendant contends that the court erred in refusing to direct the jury to return a verdict for the defendant as to each count of the complaint at the close of all of the evidence, and in refusing to grant defendant’s motion for judgment notwithstanding the verdict, as well as in refusing to set aside the special finding, of the jury. Errors in the failure . to allow the motions for new trial, and in arrest of judgment, and in the giving of instructions, and based upon the amount of the verdict, are likewise urged by defendant.'

As we have indicated in the statement of facts above, there is no evidence to indicate that the defendant, or any of its employees, were responsible for the piling of the coal, slack, or gob, on the ground at the point of the accident, and similarly, there is no evidence that the defendant knew that the gob, or slack, had been piled there by the WPA crew, which included the plaintiff, and there was, additionally, no evidence that the defendant knew that such slack was burning. Viewing the evidence most favorably towards the plaintiff, we have not been able, on an examination of the entire record, to find any evidence of neglect, much less “wil-' ful and wanton misconduct” on part of the defendant which would justify sustaining a verdict in favor of plaintiff, under the facts in this case. The evidence does not indicate that the defendant directed the manner in which the WPA crew was doing its work, or even the place of the work, and it likewise did not indicate that the work was done at defendant’s request. The record clearly discloses, however, that neither defendant nor its employees, knew that coal .silt in dangerous quantities had been piled at the place where plaintiff fell through the pathway. More silt had apparently been thrown at that point than at any other point along the embankment. This was indicated by the fact that it was the only area where any fire had been burning, and also by the scientific evidence to the effect that coal slack tends to catch fire where great quantities of the slack are collected. The record shows that nothing could be detected from the surface of the pathway to indicate that the fire existed and that the fire was only discovered as the result of plaintiff’s unfortunate accident.

There has been some confusion demonstrated in a brief presented in this court, which seeks to draw a parallel between the instant case, and the cases of McDaniels v. Terminal R. Ass’n of St. Louis, 302 Ill. App. 332, and Bernier v. Illinois Cent. R., 296 Ill. 464. Neither, of those cases resembled the instant case from a factual standpoint, and the matters discussed in those cases are not applicable to the facts before us in this case. As we have indicated, there is a complete absence in the instant case of any showing of facts which would give rise to a duty on part of defendant, that is, no showing of any knowledge that the coal slack had been piled at the point where, plaintiff sustained his injury. There is, likewise, no evidence of neglect, either through the doing of an affirmative act, or through the omission on part of defendant to do any act which would have been required of defendant, under the facts, in view of the fact that the record ' shows that defendant knew nothing of the hazardous condition, until after the accident occurred.

In the case of Moore v. Ohio Oil Co., 241 Ill. App. 388, this court said, at page 390:

“The view founded in natural justice which has the approval of many Courts is, that when a land owner has knowingly permitted licensees to use a well-defined path or roadway across his premises for some time, he should not, by any affirmative act, make the roadway more dangerous for such licensees, without giving them notice of the change of condition, and if he fails to give notice of the fact that he has made the way more dangerous, he will be held to respond in damages for the resulting injury (20 A. L. R. 202, note; Corby v. Hill, 4 C. B. N. S. 556; Morrison v. Carpenter, 179 Mich. 207, 146 N. W. 106; Sages, Adm’r. v. Creech Coal Co., 194 Ky. 415, 240 S. W. 42; John v. Reick-McJunkin Dairy Co., 281 Pa. St. 543, 127 Atl. 143).”

As was indicated in the case of Moore v. Ohio Oil Co., supra, where a well-defined path has been used openly and continuously, an owner may not interfere with the pathway, or make it more dangerous, without giving notice to the users of the pathway, or without guarding a dangerous place so made.

It is contended by the plaintiff that there was an affirmative act in the instant case, that is, the piling of the slack or gob which would ignite by spontaneous combustion, on or near the pathway, and that although the piling of this gob was not the act of the defendant, the fact that, through its agent, it might have known that the hazard was being created, impliedly constituted it as being created with defendant’s knowledge, acquiescence, and consent. We have examined the record, and do not believe that plaintiff’s contention is borne out by the evidence which indicates that neither defendant, nor its agent, either knew or should have known that the coal, slack, or gob, was piled in a dangerous manner by the WPA crew. Whether plaintiff be characterized as a trespasser or licensee, under the facts in the instant case, there is, as we have indicated, no evidence of negligence on part of defendant, and certainly no evidence of wilfulness or wantonness. From the state of the record the court below should, therefore, have directed a verdict for the defendant on each of the counts of the complaint.

The judgment of the circuit court of Williamson county will, therefore, be reversed, and judgment will be entered in this court in favor of defendant, and in bar of plaintiff’s cause of action.

Reversed, and judgment in bar in this court.